judgement:
Special Leave Petition (Civil) No. 1265 of 1987.
From the Judgment and Order dated 24.11.1986 of the Bombay High Court in Appeal No. 1042 of 1986.
J.P. Cama and Raju Ramachandran for the Petitioner.
Miss Indira Jaisingh and Ravi P. Wadhwani for the Respond ents.
The Order of the Court was delivered by VENKATARAMIAH, J.
In this Special Leave Petition filed under Article 136 of the Constitution of India, which is filed against the decision dated November 24, 1986 of the High Court of Bombay in Appeal No. 1042 of 1986, the ques tion whether the petitioner had violated the provisions of section 4 of the (No. 25 of 1976) (hereinafter referred to as 'the Act ') arises for consideration.
665 The petitioner is a company carrying on the business of rendering supporting services to water transport, like operation and maintenance of piers, docks, pilotage, light houses, loading and discharging of vessels etc.
referred to as Item No. 12 under the heading 'Water Transport ' in the list of establishments and employments to which the Act has been made applicable under sub section (3) of section 1 of the Act.
Respondent No. 1 Audrey D 'Costa was one of the employees working under the petitioner till June 13, 1977 on which date her services were terminated.
During the period of her employment under the petitioner she was working as a Confidential Lady Stenographer.
After her services were terminated, she instituted a petition before the Authority appointed under sub section (1) of section 7 of the Act complaining that during the period of her employment, after the Act came into force, she was being paid remuneration at the rates less favourable than those at which remuneration was being paid by the petitioner to the Stenographers of the male sex in its establishment for performing the same or similar work.
She claimed that she was entitled to recover from the petitioner the amount equivalent to the difference between the remuneration which she was being paid and the remuneration which was being paid to the male Stenographer who had put in the same length of service during the period of operation of the Act.
The petitioner opposed the said petition.
The petitioner contended inter alia that the business which was being carried on by it was not one of those businesses notified under sub section (3) of section 1 of the Act; that there was no difference in the scales or grades of pay between lady Stenographers and other male Stenographers at the time when the case was pending before the Authority referred to above; that the Respondent No. 1 and other lady Stenographers who had been doing the duty as Confidential Stenographers attached to the senior Executives of the petitioner company were not doing the same or similar work which the male Stenographers were discharging; and that there was no discrimination in salary on account of sex.
The petitioner contended that section 4 of the Act had not been violated by it.
After hearing both the parties, the Authority which heard the complaint of the Respondent No. 1, found that the male Stenographers and the lady Stenographers were doing the same kind of work, but it, however, rejected the complaint holding that in view of a settlement which had been arrived at in 1975 between the employees ' Union and the management, the Respondent No. 1 was not entitled to any relief.
The Authority held that the petitioner had not committed the breach of section 4 of the Act as no discrimination on the ground of sex had been made.
It accordingly rejected the complaint of the 666 Respondent No. 1 by its order dated March 30, 1982.
Ag grieved by the order of the Authority appointed under sub section (1) of section 7 of the Act, the Respondent No. 1 filed an appeal before the Deputy Commissioner of Labour (ENF), Bombay, who was the Appellate Authority appointed under sub seCtion (6) of section 7 of the Act.
The Appellate Authority came to the conclusion that there was clear dis crimination between the male Stenographers and the female Stenographers working in the establishment of the petitioner and ,the petitioner had committed the breach of the provi sions of the Act.
Accordingly, the appeal was allowed by the Appellate Authority on May 31, 1982.
It directed the peti tioner to make payment of Rs.7,196.67 paise which was the difference between the basic salary of the Respondent No. 1 and the basic salary of her male counter parts from 26.9.
1975 to 30.6.1977 on which date her services came to be terminated.
The petitioner was also directed to make payment of the difference in the amount of dearness allowance paid to the Respondent No. 1 and the dearness allowance paid to her male counter parts during the said period.
The petition er was also directed to contribute to the Employees ' Provi dent Fund account on the basis of the above directions.
Aggrieved by the decision of the Appellate Authority, the petitioner filed a writ petition in the High Court under Article 226 of the Constitution of India in Writ Petition No. 1624 of 1982.
The learned Single Judge who heard the writ petition found that there was no doubt that the work performed by the female Stenographers and work performed by the male Stenographers were indentical and that the Respond ent No. 1 and other female Stenographers were being paid less than their male counter parts who were in service for an equal number of years and the Respondent No. 1 was enti tled to the difference between the pay and allowances which had been paid to a male Stenographer who had put in service for the same number of years as the Respondent No. 1 and the amount of pay and allowances actually paid to her for the period between October 8, 1976 and June 13, 1977.
Since the Appellate Authority had committed an error as regards the period in respect of which Respondent No. 1 was entitled to relief the case was remanded to the Appellate Authority for computing the amount due to the Respondent No. 1 afresh.
The order of the Appellate Authority was affirmed in other respects.
Aggrieved by the decision of the learned Single Judge, the petitioner filed an appeal in Appeal No. 1042 of 1986 before the Division Bench of the High Court which came to be dismissed on November 24, 1986.
Aggrieved by the decision of the Division Bench, the petitioner has filed this petition under Article 136 of the Constitution of India.
667 Before dealing with the contentions of the parties, it is necessary to set out the relevant legal provisions gov erning the case.
Article 39 (d) of the Constitution of India provides that the State shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women.
The Convention Concering Equal Remuneration for Men and Women Workers for Work of Equal Value (for short, Equal Remuneration Convention, 1951) was adopted by the General Conference of the International Labour Organisation on June 29, 195 1.
India is one of the parties to the said Convention.
Article 2 of that Convention provides that each Member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value and that this principle may be applied by means of (a) national laws or regulations, (b) legally established or recognized machinery for wage determination, (c) collec tive agreements between employers and workers, and (d) a combination of these various means.
Article 3 of the Conven tion provides that where such action will assist in giving effect to the provisions of the Convention, measures shall be taken to promote appraisal of jobs on the basis of the work to be performed.
The methods to be followed in this appraisal may be decided upon by the authorities responsible for the determination of rates of remuneration, or where such rates are determined by collective agreements, by the parties thereto.
In England the above Convention is given effect to by the enactment of Equal Pay Act, 1970.
Almost all other European community States have also signed the convention.
The European Economic Community Treaty also provided that during the first stage that is before 31st December, 1961 each.
member State should ensure and subse quently maintain the application of the principle that men and women should receive equal pay for equal work.
(See E.E.C. Treaty article 119, 1st Para).
Many cases have been since decided by the national courts in those States and also in the European Court of Justice on the basis of the several laws enacted by the said States in implementation of the Equal Remuneration Convention, 1951.
The E.E.C. States are obliged to observe this Convention faithfully.
A short account of this branch of law is to be found in Halsbury 's Laws of England 4th Edn.
52, paras 20.11.
to 20.18.
Many interesting cases are referred to in those paragraphs.
In one case it is held that (i) where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on the ground of sex.
In another case concerning the pay of a woman who claimed equal pay with her 668 predecessor, a man, the European Court held that the concept of equal pay in the E.E.C. Treaty was not restricted to cases where men and women were employed contemporaneously but also applied where a woman, received less pay than a man employed prior to her by the employer on equal work (See Macarthy 's Ltd. vs Smith, 1981 Q.B.180.).
In order to implement Article 39 (d) of the Constitution of India and the Equal Remuneration Convention, 1951, re ferred to above, the President promulgated on the 26th September, 1975 the Equal Remuneration Ordinance, 1975 so that the provisions of Article 39(d) of the Constitution of India might be implemented in the year which was being celebrated as the International Women 's Year.
The said Ordinance provided for payment of equal remuneration to men and women workers for the same work or the work of a similar nature and for the prevention of discrimination on account of sex.
The Ordinance also ensured that there was no dis crimination against recruitment of women and provided for the setting up of Advisory Committees to promote employment opportunities for women.
The above Ordinance was replaced by the Act Which received the assent of the President on Febru ary 11, 1976.
The long title of the Act states that it is intended to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimina tion on the ground of sex against women in the matter of employment and for matters connected therewith or incidental thereto.
Sub section (3) of section 1 of the Act provides that the Act shah come into force on such date, not being later than three years from the passing of the Act, as the Central Government may, by notification, appoint and differ ent dates may be appointed for different establishments or employments.
Insofar as the establishment of the petitioner was concerned, the Act came into force with effect from October 8, 1976.
The expressions 'commencement of this Act ', 'remuneration ' and 'same work or work of a similar nature ' are defined in section 2(b), (g) and (h) respectively of the Act.
Commencement of this Act ' means in relation to an establishment or employment, the date on which the Act comes into force in respect of that establishment or employment by the issue of the necessary notification under section 1(3) of the Act. 'Remuneration ' means the basic wage or salary and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employ ment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled. 'Same work or work of a similar nature ' means work in re spect of which the skill, effort and responsibility required are the same when performed under similar 669 working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility re quired of a man and those required of a women are not of practical importance in relation to the terms of conditions of employment.
Section 3 of the Act has given overriding effect to the provisions of the Act.
It provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of the Act, or in any instrument having effect under any law for the time being in force.
The crucial section which arises for consideration in this case is section 4 of the Act.
It reads thus: "4.
Duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature (1) No employer shall pay to any worker, employed by him in an estab lishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for per forming the same work or work of a similar nature.
(2) No employer shall, for the purpose of complying with the provisions of sub section (1), reduce the rate of remunera tion of any worker.
(3) Where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or as the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remuneration shall be payable, on and from such commencement, to such men and women workers: Provided that nothing in this sub section 'shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of this Act.
" 670 Section 5 of the Act prohibits any kind of discrimina tion being made while recruiting men and women workers.
Section 6 of the Act provides for the appointment of an Advisory Committee to advise the appropriate Government with regard to the extent to which women may be employed in such establishments or the employments as the Central Government may, by notification, specify in that behalf.
Section 7 of the Act provides for the appointment of the adjudicating Authority whenever a dispute arises between the management and the employees as also an Appellate Authority which can hear an appeal against the decision of the Authority.
Sec tion 16 of the Act provides that where the appropriate Government is, on a consideration of all the circumstances of the case satisfied that the differences in regard to the remuneration or a particular species of remuneration of men and women workers in any establishment or employment is based on a factor other than sex, it may, by notification make a declaration to that effect and any act of the employ er attributable to such a difference shall not be deemed to be a contravention of any provision of the Act.
The point which arises for consideration in this peti tion is whether the Respondent No. 1 is entitled to any relief within the scope of section 4 of the Act.
In order to grant such relief under section 4 of the Act the employee should establish that the remuneration paid by the employer, whether payable in cash or kind, is being paid at rates less favourable than those at which remuneration is paid by him to the employees of the opposite sex in such establishment for performing the same work or work of a similar nature.
Whether a particular work is same or similar in nature as another work can be determined on three considerations.
In deciding whether the work is the same or broadly similar, the Authority should take a broad view; next, in ascertain ing whether any differences are of practical importance, the Authority should take an equally broad approach for the very concept of similar work implies differences in details, but these should not defeat a claim for equality on trivial grounds.
It should look at the duties actually performed not those theoretically possible.
In making comparison the Authority should look at the duties generally performed by men and women.
Where however both men and women work at inconvenient times, there is no requirement that all those who work e.g. at night shall be paid the same basic rate as all those who work normal day shifts.
Thus a woman who works days cannot claim equality with a man on higher basic rate for working nights if in fact there are women working nights on that rate too, and the applicant herself would be enti tled to that rate if she changed shifts.
(See I.T. Smith and J.C. Wood: Industrial Law, 2nd Edition, (Butterworths) 671 page 308).
We do not suggest that there can be no discrimi nation at all between men and women in the matter of remu neration.
There are some kinds of work which women may not be able to undertake.
Men do work like loading, unloading, carrying and lifting heavier things which women cannot do.
In such cases there cannot be any discrimination on the ground of sex.
Discrimination arises only where men and women doing the same or similar kind of work are paid difer ently.
Wherever sex discrimination is allegeo, there should be a proper job evaluation before any further enquiry is made.
If the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non discriminatory (i.e. those criteria which Iook directly to the nature and extent of the demands made by the job) as distinct from criteria which set out differ ent values for men and women on the same demand and it is found that a man and a woman employed on these two jobs are paid differently, then sex discrimination clearly arises.
(See Paul Davis and Mark Freedland: Labour Law, Text and Material 1979 page 297).
It has been found by the Authority, the Appellate Au thority and by the learned Single Judge that the Confiden tial Lady Stenographers were doing the same work or work of a similar nature as defined by section 2(h) of the Act which the male Stenographers in the establishment of the petition er were performing.
The Respondent No. 1 was working as a lady Stenographer.
The lady Stenographers working in the establishment of the petitioner were called 'Confidential Lady Stenographers ' since they were attached to the senior Executives working in the petitioner company.
In addition to the work of Stenographers they were also attending to the persons who came to interview the senior Executives and to the work of filing, correspondence etc.
There was practical ly no difference between the work which the Confidential Lady Stenographers were doing and the work of their male counter parts.
It was suggested that the lady Stenographers were found by the management to be proper persons to be Confidential Stenographers.
It may be so.
It, however, does not mean that they should suffer for their loyalty, integri ty, sincerity and punctuality and receive less pay for possessing those qualities when they are doing the same kind of work as men.
In the circumstances of the case, applying the true tests which are discussed above to the facts of this case, we do not find any ground to take a view differ ent from the view taken by the learned Single judge, the Appellate Authority and the Authority who have dealt with this case.
The next question is whether the lady Stenographers were being 672 paid the remuneration, which included basic pay, and any additional emoluments whatsoever payable either in cash or in kind, less than what was being paid to their male coun ter parts who had put in service for the same number of years.
It is true that there was a settlement arrived at between the employees ' Union and the management in the year 1975 and it had been arrived at after negotiations between the parties to the settlement.
Prior to the settlement the Respondent No. 1 was getting as basic salary of Rs. 560 in the pay scale of Rs.150 15 180 20 340 25 440 28 496 32 560 in addition to a fixed D.A. of Rs.525 per month.
Thus the Respondent No. 1 was getting a remuneration to the tune of Rs.1085 per month.
Under the settlement her basic salary was reduced to Rs.245 from Rs.560 and the D.A. was increased to Rs.935.25 paise.
In all she was getting a remuneration of Rs.1180.25 paise per month under the settlement, thus in creasing her gross salary by Rs.95.25 paise.
On the other hand, her male counter part who had put in service for an equal number of years was being paid Rs.585 by way of basic pay and Rs.1325.45 paise by way of dearness allowance under the settlement.
In all he was being paid Rs.1910.45 paise.
Thus it is seen that the Respondent No. 1 was getting every month Rs.730.20 paise less than the remuneration which her male counter part was getting.
The question for considera tion is whether the management was justified in paying such remuneration to her.
It was urged on behalf of the manage ment that the difference between the remuneration of the male Stenographers and the remuneration of the Confidential Lady Stenographers was on account of the settlement which was arrived at after proper negotiation and that the Court must have regard to it.
Section 3 of the Act clearly pro vides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the com mencement of the Act, or in any instrument having effect under any law for the time being in force.
The petitioner cannot, therefore, rely upon the settlement arrived at between the parties.
The settlement has to yield in favour of the provisions of the Act.
It was next contended on behalf of the petitioner that the discrimination between the male Stenographers and the Confidential Lady Stenographers had not been brought about only on the ground of sex.
We find it difficult to agree with this contention.
It may be that the management was not employing any male as a Confi dential Stenographers attached to the senior Executives in its establishment and that there was no transfer of Confi dential Lady Stenographers to the general pool of Stenogra phers where males were working.
It, however, ought not to make any difference for purposes of the application of the Act when once it is es 673 tablished that the lady Stenographers were doing practically the same kind of work which the male Stenographers were discharging.
The employer is bound to pay the same remunera tion to both of them irrespective of the place where they were working unless it is shown that the women are not fit to do the work of the male Stenographers.
Nor can the man agement deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establish ment.
In the present case the place where the employees worked is irrelevant for purposes of section 4 of the Act.
We shall now proceed to consider the effect of sub section (3) of section 4 of the Act on which much emphasis was placed by the management.
It provides that where in an establishment or an employment the rates of remuneration payable before the commencement of the Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, as the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remunera tion shall be payable, on and from such commencement, to such men and women workers.
The meaning of sub section (3) to section 4 of the Act is that if for doing the same or similar work there are more than two or three rates of remuneration, the higher or the highest of such rates shall be the rate at which the remuneration shall be payable from the date of the commencement of the Act to men and women workers doing the same or similar kind of work in the estab lishment.
The proviso provides that nothing in the sub section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of the Act.
The salient features of the settle ment of 1975 are as follows: "I. Clerical & Subordinate Staff: Pay scales remain unaltered.
However they will be granted increments as under: (a) All staff who have completed one or more than one year 's service as on 1.5.75 will get one increment in their respective scales with effect from 1.5.75.
(b) All staff who have reached the maximum of their 674 respective pay scales including those in 'E ' grade who have completed 35 years of service will receive one increment as per the last increment of the scale, with effect from 1.5.75.
(c) In addition to this, those who retire during the course of the Agreement, i.e., during the period 1.5.75 to 30.4.78 will receive one increment in the year of their retirement.
Lady Stenographers: Their pay scales will be brought on par with their male counterparts in the fol lowing manner: (a) All those who have completed 7 years of service or less on 1.5.75 will be fitted to the starting figures of 'B ' grade clerical scale.
(b) All those with more than 7 years of serv ice but less than 10 years of service as on 1.5.75 will be fitted to that stage of 'B ' grade which is one step higher than the start ing figure.
(c) All those with more than 10 years of service as on 1.5.75 will be first fitted to the starting salary of grade 'A ' and then given one increment in the scale for every 5 years of service or a fraction thereof, over and above 10 years of service.
(d) The revisions will come into effect with effect from 1.5.75.
(e) While effecting fitments as explained in (a), (b) and (c) above, if the revised gross emoluments happen to be less than the existing gross salary, or, if the enhancement of gross emoluments as a result of the revision works out to less than Rs.50, then, in such individ ual cases, the basic salaries in the respec tive scales will be stepped up in such a way, as to ensure a minimum of Rs.50 increase in gross salary.
(f) The figures for comparison will be the gross salaries for the month of May 1975.
765 (g) All other terms and conditions as applica ble to clerical and subordinate staff will also apply to lady stenographers with effect from 1.5.75 . . . . . .
It is not disputed that the male Stenographers came under the category of 'Clerical & Subordinate Staff '.
It is also not disputed that the terms regarding the fitment of lady Stenographers either in the 'A ' grade or 'B ' grade, referred to in the settlement is less favourable to them and the same conditions were allowed to remain in force even after the Act came into force.
The very fact that the lady Stenographers are treated diferently and as a class differ ent from the clerical and subordinate staff by paying less remuneration even though they have put in the same length of service and they are placed in the same scale of pay smacks of discrimination.
The discrimination thus brought about by the terms of settlement only on account of the sex of the employees cannot be allowed to persist in view of section 4 of the Act.
We do not agree that the work of the Confiden tial lady Stenographers is a sex based one like the work of air hostesses.
There is no custom or rule that only ladies can be Confidential Stenographers.
If only women are working as Confidential Stenographers it is because the management wants them there.
Women are neither specially qualified to be Confidential Stenographers nor disqalified on account of sex to do the work assigned to the male Stenographers.
Even if there is a practice in the establishment to appoint women as Confidential Stenographers such practice cannot be relied on to deny them equal remuneration due to them under the Act.
The management is liable to pay the same remuneration to all the Stenographers on the same basis irrespective of their sex.
The salary and remuneration payable to the lady Stenographers should be computed in accordance with the terms applicable to all the male Stenographers.
When so computed, it is not disputed, that the Respondent No. 1 would be entitled to higher remuneration as observed by the Appellate Authority and the learned Single Judge of the High Court.
We are of the view that the petitioner cannot derive any benefit from sub section (3) of section 4 of the Act and the proviso thereto because sub section (3) would be at tracted only where in an establishment or an employment rates of remuneration payable before the commencement of the Act for the men workers and for the women workers for the same work or work of similar nature are different.
In the instant case after the settlement was arrived at there was a common pay scale both for men and women as can be seen from the settlement, referred to above.
The discrimination was, however, brought about while carrying out the fitment of the lady 676 Stenographers in the said scale of pay.
The proviso to sub section (3) to section 4 comes into operation only where sub section (3) is applicable.
Since there are no different scales of pay in the instant case sub section (3) of section 4 of the Act would not be attracted and consequently, the proviso would not be applicable at all.
The proviso cannot travel beyond the provision to which it is a proviso.
This is a case to which sub section (1) to section 4 of the Act applies because the impugned remuneration payable to lady Stenographers has been reduced on account of the inequitable provision regarding fitment in the common scale of pay which is applicable to both men and women Stenographers.
Having stated that there was a common pay scale for both male Stenographers and female Stenographers it is not open to the petitioner to contend that the order of the High Court was contrary to the proviso to sub section (3) to section 4 of the Act.
We, therefore, reject the contention that the order passed by the High Court is contrary to the proviso to sub section (3) of section 4 of the Act.
It is lastly urged on behalf of the petitioner that the enforcement of the Act will be highly prejudicial to the management, since its financial position is not satisfactory and the management is not able to pay equal remuneration to both male Stenographers and female Stenographers.
The Act does not permit the management to pay to a section of its employees doing the same work or a work of similar nature lesser pay contrary.
to section 4(1) of the Act only because it is not able to pay equal remuneration to all.
The ap plicability of the Act does not depend upon the financial ability of the management to pay equal remuneration as provided by it.
We do not find any ground to interfere with the judgment of the High Court.
The petition, therefore, fails and it is dismissed.
There shall, however, be no order as to costs.
A.P.J. Petition dismissed.

summary:
After the services of the respondent No. 1, who was working as a Confidential Lady Stenographer with the peti tioner company, were terminated on June 13, 1977, she insti tuted a petition before the Authority appointed under sub section
(1) of section 7 of the complaining that during the period of her employment, after the Act came into force, she was being paid remuneration at the rates less favourable than those paid to the Stenographers of the male sex in the petitioner 's establishment for performing the same or similar work 660 and claimed that she was entitled to recover the difference between remuneration paid to her and the male Stenographers.
The petitioner opposed the petition contending, inter alia, that the business carried on by it was not one of those businesses notified under sub section
(3) of section 1 of the Act; that there was no difference in the scales or grades or pay between lady Stenographers and male Stenographers; that the respondent No. 1 and other lady Stenographers who had been doing the duty as Confidential Stenographers attached to the Senior Executives were not doing the same or similar work which the male Stenographers were discharging; and that since there was no discrimination in salary on account of sex s.4 of the Act had not been violated.
The Authority found that the male Stenographers and the lady Stenographers were doing the same kind of work, but rejected the complaint holding that in view of a settlement arrived at between the employee 's Union and the management the respondent No. 1 was not entitled to any relief and that the petitioner had not committed the breach of section 4 as no discrimination on the ground of sex has been made.
The Appellate Authority allowed the appeal of Respondent No. I holding that there was clear discrimination between the .male Stenographers and the female Stenographers and the petitioner had committed the breach of the provisions of the Act and directed the petitioner to make the payment of the difference between the basic salary and dearness allowances paid to respondent No. 1 and her male counter parts from 26.9.1975 to 30.6.1977 and to contribute to the Employees Provident Fund.
In the petition under Article 226 the Learned Single Judge affirmed the order of the Appellate Authority but remanded the case for computing the amount due to the re spondent No. 1 afresh.
The Division Bench dismissed the further appeal.
Dismissing the Petition, HELD: 1.
To implement article 39(d) of the Constitution of India and Equal Remuneration Convention, 1951 (adopted by International Labour Organisation), the came to be enacted providing for the payment of equal remuneration to men and women workers and for the prevention of discrimination on the ground of sex against women in the matter of employment and for matters connected therewith or incidental thereto.
In so far as the establish ment 661 of the petitioner was concerned, the Act came into force with effect from October 8, 1976.
[668B F] 2.
In order to grant relief under section 4 of the Act the employees should establish that the remuneration paid by the employer, whether payable in cash or kind, 1s being paid at rates less favourable than those at which remuneration is paid by him to the employees of the opposite sex in his establishment for performing the same work or work of a similar nature.
[670D E] 3.
In deciding whether the work is the same or broadly similar and whether any differences are of practical impor tance, the Authority should take an equally broad approach, for, the very concept of similar work implies differences in details, but these should not defeat a claim for equality on trivial grounds.
It should look at the duties actually and generally performed not those theoretically possible by men and women.
Where, however, both men and women work at incon venient times, there is no requirement that all those who work e.g. at night shall be paid the same basic rate as all those who work normal day shifts.
Thus a woman who works days cannot claim equality with a man on higher basic rate for working nights if in fact there are women working nights on that rate too, and the applicant herself would be enti tled to that rate if she changed shifts.
[670E H] I.T. Smith and J.C. Wood; Industrial Law, 2nd Edition (Butterworths) page 308, referred to. 4.
It cannot be suggested that there can be no discrimi nation at all between men and women in the matter of remu neration on the basis of nature of work which women may not be able to undertake but in such cases there cannot be any discrimination on the ground of sex.
Discrimination arises only where men and women doing the same or similar kind of work are paid differently.
Wherever sex discrimination is alleged, there should be a proper job evaluation before any further enquiry is made.
If the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non discriminatory (i.e. those criteria which look directly to the nature and extent of the demands made by the job) as distinct from criteria which set out different values for men and women on the same demand and it is found that a man and a woman employed on these two jobs are paid differently, then sex discrimination clearly arises.
[671A C] Paul Davis and Mark Freedland: Labour Law, Text and Material (1979) page 297, referred to.
662 5.
In the instant case, the Authority, the Appellate Authority and the Single Judge have found that the Confiden tial Lady Stenographers were doing the same work or work of a similar nature as defined in section 2(h) of the Act which the male Stenographers in the establishment of the petitioner were performing.
The respondent No. 1 was working as a lady Stenographer.
The lady Stenographers working in the estab lishment of the petitioner were called "Confidential Lady Stenographers" since they were attached to the senior Execu tive working in the petitioner company.
In addition to the work of the Stenographers they were also attending to the persons who came to interview the senior Executives and to the work of filing, correspondence.
There was practi cally no difference between the work which the Confidential Lady Stenographers were doing and the work of their male counter parts.
If the Lady Stenographers were found by the management to he proper persons to he Confidential Stenogra phers it does not mean that they should suffer for their loyalty, integrity, sincerity and punctuality and receive less pay for possessing those qualities when they are doing the same kind of work as men.
Applying the true tests to the facts of the instant case there is no ground to take a different view from the view taken by the Authorities and the Single Judge.
[671D H] 6.
Though a settlement was arrived at between the em ployee 's Union and the management in the year 1975 after negotiations, but after the settlement the respondent No. 1 was getting every month Rs.730.20 paise less than the remu neration which her male counterpart was getting.
In view of the provisions of section 3 the management cannot rely upon the settlement arrived at between the parties.
The settlement has to yield in favour of the provisions of the Act.
The fact that the management was not employing any male as a Confidential Stenographer attached to the senior Executives in the establishment and that there was no transfer of Confidential Lady Stenographer to the general pool of Ste nographers where males were working ought not to make any difference for purposes of the application of the Act.
Once It is established that the lady Stenographers were doing practically the same kind of work which the male Stenogra phers were discharging the employer is hound to pay the same remuneration to both of them irrespective of the place where they were working unless it is shown that the women are not fit to do the work of the male Stenographers.
Nor can the management deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establish ment.
[672B H; 673A B] 663 7.
The meaning of sub section
(3) to section 4 of the Act is that if for doing the same or similar work there are more than two or three rates of remuneration, the higher or the high est of such rates shall be the rate at which the remunera tion shall be payable from the date of the commencement of the Act to men and women workers doing the same or similar kind of work in the establishment.
The proviso provides that nothing in the sub section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of the Act.
[673E F] 8.
Under the settlement of 1975 the male Stenographers came under the category of "Clerical and Subordinate Staff".
Undisputedly the terms regarding the fitment to lady Stenog raphers either In the 'A ' Grade or 'B ' grade, referred to In the settlement is less favourable to them and the same conditions were allowed to remain in force even after the Act came into force.
The very fact that the lady Stenogra phers are treated differently and as a class different from the clerical and subordinate staff by paying less remunera tion even though they have put in the same length of service and they are placed in the same scale of pay smacks of discrimination.
The discrimination thus brought about by the terms of settlement only on account of the sex of the em ployees cannot be allowed to persist in view of section 4 of the Act.
The work of the Confidential Lady Stenographer cannot be said to be sex based one like the work of air hostesses.
There is no custom or rule that only ladies can be Confiden tial Stenographers.
If only women are working as Confiden tial Stenographers it is because the management wants them there.
Women are neither specially qualified to be Confiden tial Stenographers nor disqualified on account of sex to do the work assigned to the male Stenographers.
Even if there is a practice in the establishment to appoint women as Confidential Stenographers such practice cannot be relied on to deny them equal remuneration due to them under the Act.
[675B E] 9.
The management is liable to pay the same remuneration to all the Stenographers on the same basis irrespective of their sex.
The salary and remuneration payable to the lady Stenographers should be computed in accordance with the terms applicable to all the male Stenographers.
When so computed, undisputedly the Respondent No. 1 would be enti tled to higher remuneration as observed by the Appellate Authority and the Single Judge.
The management cannot derive any benefit from sub section
(3) of section 4 of the Act and the proviso thereto because sub section
(3) would be attracted only where in an establishment or an employment rates of remuner ation payable before the commencement 664 of the Act for the men workers and for the women workers for the same work or work of similar nature are different.
In the instant case, after the settlement was arrived at there was a common pay scale both for men and women as can be seen from the settlement.
The discrimination was, however, brought about while carrying out the fitment of the lady Stenographers in the said scale of pay.
[675E H; 676A] 10.
The proviso to sub section
(3) to section 4 comes into opera tion only where sub section
(3) is applicable.
Since there are no different scales of pay in the instant case sub section
(3) of section 4 of the Act would not be attracted and consequently, the proviso would not be applicable at all.
The proviso cannot travel beyond the provision to which it is a proviso.
This is a case to which sub section
(1) to section 4 of the Act applied because the impugned remuneration payable to lady Stenogra phers has been reduced on account of the inequitable provi sion regarding fitment in the common scale of pay which is applicable to both men and women Stenographers.
[676A C] 11.
The Act does not permit the management to pay to a section of its employees doing the same work or a work of a similar nature lesser pay contrary to section 4(1) of the Act only because it is not able to pay equal remuneration at all.
The applicability of the Act does not depend upon the financial ability of the management to pay equal remunera tion as provided by it.
[676E]


judgement:
ivil Appeal Nos.
387390 of 1977.
From the Judgment and Order dated 30.7.1976 of the Madras High Court in C.R.P. Nos. 1288 to 1291 of 1975.
T.S. Krishnamurthy lyer, A.T.M. Sampath and Thirumaran for the Appellants.
G.L. Sanghi, P.S. Poti, A.V. Rangam, M.G. Natarajan and T.V. Ratnam for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
These four appeals are directed against the common judgment of the High Court of Madras dismissing four Civil Revision Petitions filed by the appellants against the order of the appeal court upholding the order of the Trial Court dismissing their applications made under Section 9 of the Tamil Nadu City Tenants Protection Act 1921.
Briefly the facts giving rise to these appeals are: N.V. Abdullah Sahib predecessor in interest of the appellants obtained a lease of about 10 grounds of vacant land situate in the city of Madras from the ancestors of Respondent landlords in 1924, for carrying on business, he constructed super structures on the vacant land and carried on business in timber under a partnership firm along with his brother N.V. Ummer Kutty and two minors.
The super structures which were constructed prior to 1954 on the demised land were treated partner 737 ship assets along with other properties.
After the death of N.V. Abdullah Sahib and N.V. Ummer Kutty the partnership business could not be carried on, as dispute arose between the partners.
A suit being Civil Suit No. 152 of 1960 was filed for partition and in that suit defendant Nos. 2 and 4 were appointed joint receivers, subsequently on 7.9.1966 Sri Ananthakrishnan Nair, Appellant No. 1 was appointed Receiver who was authorised to take custody of the account books and to realise rent from the sub tenants occupying the property which was the subject matter of dispute in the partition suit.
The High Court passed a preliminary decree in the partition suit but before final decree could be prepared or finalised, the Respondent landlords served notices on the heirs of N.V. Abdullah Sahib terminating the lease and demanding surrender of the land.
Since the land was not restored to the landlords inspite of termination of the lease, the landlords, in 1972 instituted four suits being Suit Numbers 33 to 36 in the Court of Small Causes at Madras for ejectment against the heirs of N.V. Abdullah Sahib, which included defendant Nos.
1 to 10 and Sri P. Ananthakr ishnan Nair, Advocate receiver as defendant No. 11.
In the ejectment suits defendant Nos. 1 to 3 and 5 to 10 did not appear or contest the suit, and ex parte proceedings were taken against them but K.K. Kunhammoo, defendant No. 4 (second appellant) and Sri P. Ananthakrishnan Nair, Advo cate receiver defendant No. 11 contested the ejectment suits.
Defendant No. 4, namely, appellant No. 2, filed an application in each of the ejectment suits claiming benefit of Section 9 of the Tamil Nadu City Tenants Protection Act III of 1922 (hereinafter referred to as the Act) with a prayer to the Court for issuing orders directing the land lords to sell the land, to the defendants and to appoint a Commissioner to ascertain the price which the defendants would pay.
The Respondent landlords contested the applica tions.
The Trial Court rejected the application on the findings that the defendants were not in occupation of the property except a small portion where the account books were kept and the defendants did not require any portion of the land for running their business or for the convenient enjoy ment of the super structures.
On appeal by the defendant Nos. 4 and 11 under section 9 A of the Act, the appellate authority held that proceedings for ejectment had been taken ex parte against most of the defendants and persons entitled to the statutory privilege did not exercise their right and further they have not been in possession and occupation of the premises therefore, defendants were not entitled to the benefit of Section 9 of the Act.
The appellate court further held that defendant No. 4 (the receiver) was not entitled to maintain an application under Section 9 of the Act on behalf of other defendants.
Thereafter both the receivers, defend ant Nos. 4 and 11 preferred four 738 petitions in revision before the High Court.
A learned single Judge by his order dated 30.7.1976 affirmed the orders of the Courts below and dismissed the revision peti tions.
Aggrieved defendant No. 4 and P. Ananthakfishnan Nair, Advocate receiver have preferred these appeals against the order of the High Court after obtaining Special Leave.
In the instant case the appellants ' application was rejected firstly on the ground that the application made under Section 9 of the Act had not been signed by all the tenants against whom suit for ejectment had been filed by the respondent landlords.
Secondly all the three courts ejected the appellants ' application on the findings that the defendants have not been in possession or occupation of the superstructure and they have let out the entire building to sub tenants, thereby they are not entitled to claim benefit of Section 9 of the Act.
As regards the first question the learned counsel for the appellants urged that the applica tion made under Section 9 of the Act was signed by the second Appellant who was defendant No. 4 in the suit.
The suit for partition of the property had not been finally decreed and as no final decree had been passed the shares of the defendants had not been partitioned by metes and bounds the property continued to retain its joint status and de fendant No. 4 being a co owner could legally make applica tion on behalf of other co owners claiming the benefit of Section 9 of the Act.
Since there was no conflict of inter est among the co owners, defendant No. 4 being a co owner could maintain the application not only on his own benefit but also on behalf of all other co owners as the fight of each co owner extends to every inch of the whole property alongwith the other co owners.
It is always open to a co owner to conserve the property for the benefit of all other co owners.
The preliminary decree passed in the partition suit did not affect the joint interest:st of the co owners as no final decree had been passed in the suit and the property under tenancy continued to be joint.
Learned coun sel further urged that defendant No. 4 being a party receiver in the partition suit was entitled to do everything for the conservation and protection of the property for the benefit of the parties to the suit.
The court below commit ted error in rejecting the application on the plea that the same had been signed only by defendant No. 4.
On the other hand, learned counsel for the respondent landlords urged that the application made by only one of the co heirs of the deceased N.V. Addullah Sahib, the original tenant, could not be conscrued as one made on behalf of other co heirs, as they did not contest 739 the ejectment suit and ex parte decree for their eviction had been passed by the trial court which clearly indicate that they were not interested in retaining the property or in continuing possession of the same.
Since all the other heirs of N.V. Abdulla Sahib were not interested to contest the suit, defendant No. 4 (Appellant No. 2) could not main tain application under Section 9 of the Act on behalf of other co heirs and the application made by him did not and could not reflect the desire of other co heirs who had settled outside the State of Tamil Nadu.
The learned counsel further urged that defendant No. 4 though functioning as party receiver was not authorised to take legal proceedings by filing suit or application on behalf of parties to the partition suit.
In the absence of authorisation by the court the defendant.
No. 4 had no authority in law to act as agent of other co heirs.
It was further urged that the receiver is an officer of the Court and he is not agent of any party to the suit notwithstanding the fact that in law his position is ultimately treated as an agent of the successful party on the termination of the suit.
We do not consider it necessary to express our opinion on these rival submissions made before us as in our opinion the appeals must fail on the second question which relates to the findings recorded by all the three courts that since the tenants have not been in occupation of the property in dispute, they are not entitled to the benefit of Section 9 which is equitable in nature.
The Tamil Nadu City Tenants Protection Act, 192 1 was enacted, as its preamble shows, to give protection to cer tain classes of tenants in municipal towns and adjoining areas in the State of Madras, who may have constructed buildings on others ' lands in the hope that they would not be evicted so long as they paid a fair rent for the land.
The object of the Act as contained in the objects and rea sons of the bill state: "In many parts of the City of Madras dwelling houses and other buildings have from time to time been erected by tenants on lands belong ing to others, in the full expectation that subject to payment of a fair ground rent, they would be left in undisturbed possession, notwithstanding the absence of any specific contract as to the duration of the lease or the terms on which the buildings were to be leased.
Recently attempts made or steps taken to evict a large number of such tenants have shown that such expectations are likely to be defeated.
The tenants, if they are evicted, can at the 740 best remove the super structure which can only be done by pulling down the buildings.
As a result of such wholesale destruction, congest ed parts of the city will become more congest ed to the serious deteriment of public health.
In these circumstances it is just and reasona ble that the landlords when they evict the tenants should pay for and take the buildings.
There may however be cases where the landlord is unwilling to eject a tenant, if he can get a fair rent for the land.
The Act provides for the payment of compensation to the tenant in case of ejectment for the value of any build ings which may have been erected by him or his predecessors in interest.
It also provides for the settlement of fair rent at the instance of the landlord or tenant provision is also made to enable the tenant to purchase the land in his occupation subject to certain conditions.
" The Act has been subject to several amendments seeking to protect the tenants ' interest and also safe guarding landlords ' rights in the property.
It would be profitable to refer to the provisions of the Act highlighting broad as pects of the benefits to a tenant and the rights of the landlords which have been safe guarded.
The Principal Act was amended by the Act XIX of 1955 and XIII of 1960 which made comprehensive amendments in the Principal Act of 1921 (Act III of 1922).
The Principal Act was further amended by Act IV of 1972 and XXIV of 1973.
"Landlord" as defined by Section 2(3) means any person owing any land including every person entitled to collect the rent of the whole or any portion of the land whether on his own account or on behalf of or for the benefit of any other person, or by virtue of any transfer from the owner or his predecessor in title or of any order of a competent court or of any provision of law.
"Tenant" as defined by Section 2(4) means a person liable to pay rent in respect of such land under a tenancy agreement express or implied and it also includes any person who continues in possession of the land after determination of the tenancy agreement.
Section 3 provides that every tenant shall on ejectment be entitled to be paid as compen sation the value of any building, which may have been erect ed by him and also the value of trees which may have been planted by him in a suit for ejectment.
If the landlord 's suit for ejectment is decreed the court is required to ascertain the amount of compensation payable under Section 3 and it shall thereupon pass a decree for the amount so found due and direct that on payment of the amount by the landlord within three months from the date of decree the tenant shall put the landlord into possession of the land along with the building and trees thereon, as 741 provided by Section 4 of the Act.
Section 5 provides for determination of compensation to the tenant.
If the landlord is unable or unwilling to pay compensation as directed by the Court he may apply to the Court for fixation of reasona ble rent for the occupation of the land by a tenant in accordance with Section 6 of the Act.
Section 9 provides that a tenant who is entitled to compensation under Section 3 and against whom a suit for ejectment is instituted may apply for an order that the landlord may be directed to sell the land to him for the price to be fixed by the Court, and thereupon the Court shall fix the price in the manner pre scribed therein and direct the said amount to be paid to the landlord by the tenant within a particular time and in default, his application shall stand dismissed.
Section 11 provides that no suit for ejectment shall be instituted against the tenant except after giving three months notice requiring him to surrender possession of the land, building and trees to the landlord.
These provisions broadly seek to recapitulate the objects and reasons as quoted earlier by protecting the tenant from eviction who may have constructed super structure on the land demised to him and it further safeguards the landlord 's interest by making provision for payment of the price of the land to him by the tenant.
In the instant case since the tenant 's right to purchase the land is involved we would refer to the provisions of Section 9 of the Act in detail, which reads as under: "9.
Application to Court for Directing the Landlord to Sell Land: (1) (a) (i) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the Presidency Small Causes Courts Act 1882, taken by the landlord may, within one month of the date of the publication of the Madras City Tenant 's Protection (Amend ment) Act 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or Village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of extent of land specified in the application.
(ii) Notwithstanding anything con tained in clause (a) (i) of this sub section, any such tenant as is referred to in 742 sub clause (ii) (b) of clause (4) of Section 2 or his heirs, may within a period of two months from the date of the publication of the Madras City Tenants ' Protection (Amendment) Act 1973 apply to the Court (whether or not a suit for ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act 1882 (Central Act XV of 1882) has been taken by the landlord or whether or not such suit or proceeding is pending having jurisdiction to entertain a suit for ejectment or in the City of Madras either to such court or to the Presidency Small Causes Court for an order that the landlord under the tenancy agreement shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in the application.
(b) On such application the Court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
The Court shall, then fix the price on the minimum extent of the land decid ed as aforesaid or of the extent of the land specified in the application under clause (a) whichever is less.
The price aforesaid shall be the average market value of the three years immediately preceding the date of the order.
The Court shall order that within a period to be determined by the Court not being less than three months and not more than three years from the date of the order of the tenant shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest.
(2) In default of payment by the tenant of any one instalment, the application under clause (a) of sub section (1) shall stand dismissed, provided that on sufficient cause being shown, the Court may excuse the delay and pass such orders as it may think fit, but not so as to extend the time for payment beyond the three years above mentioned.
On the application being dismissed, the Court shall order the amount of the instalment or instalments if any, paid by the tenant to be repaid to him without any interest.
(3) (a) On payment of the price fixed under clause (b) of sub section (1), the Court shall pass an order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed.
The Court shall by 743 the same order direct the tenant to put the landlord into possession of the remaining extent of the land, if any.
The stamp duty and registration fee in respect of such conveyance shall be borne by the tenant.
(b) On the order referred to in clause (a) being made the suit or proceeding shall stand dismissed, and any decree or order in eject ment that may have been passed therein but which has not been executed shall be vacated.
Once a suit is filed by the landlord for the eviction of a tenant from land the tenant has right to apply to the Court within one month from the date of the service of summons for the issuance of order directing the landlord to sell the whole or part of the extent of land as specified in the application to him for a price to be fixed by the Court.
On making of such an application the Court is under a manda tory duty to first decide the minimum extent of the land "which may be necessary for the convenient enjoyment by the tenant." (emphasised).
The court must hold enquiry to deter mine whether the tenant requires the land for his convenient enjoyment, and if so, what area or portion of the land would be necessary for his convenient enjoyment.
The court may on the facts of a particular case come to the conclusion that the tenant does not require any portion of the land and in that event it may reject the application and decree the suit for ejectment and direct the landlord to pay compensation to the tenant.
But if the court finds that the tenant needs the whole or any portion of the demised land for "convenient enjoyment", the Court has to fix the price of the land on the basis of market value of three years immediately preced ing the date of the order.
The Court may thereupon direct the tenant to deposit the amount so determined within a specific period not being less than three months and not more than three years.
If the tenant fails to pay the amount so determined, the tenant 's application shall stand dis missed.
Section 9 confers a privilege on a tenant against whom a suit for eviction has been filed by the landlord but that privilege is not absolute.
Section 9 itself imposes restric tion on the tenant 's right to secure conveyance of only such portion of the holding as would be necessary for his conven ient enjoyment.
It creates a statutory right to purchase land through the medium of court on the fulfilment of condi tions specified in Section 9 of the Act.
It is not an abso lute right, as the court has discretion to grant or refuse the relief for the purchase of the land.
In S.M. Transport (P) Ltd. vs Sankaraswamingal Mutt, [1963] Suppl 1 744 SCR 282 this Court considered the question whether the right of a tenant to apply to a court for an order directing the landlord to sell the land to him for a price to be fixed by it under Section 9 of the Act is a property right.
The Court held, that the law of India does not recognise equitable estates, a statutory right to purchase land does not confer any right or interest in the property.
The right conferred by Section 9 is a statutory right to purchase land and it does not create any interest or right to the property.
The tenant 's right to secure only such portion of the holding as may be necessary for his convenient enjoyment is equitable in nature.
Under the common law a tenant is liable to evic tion and he has no right to purchase the land demised to him at any price as well as under the Transfer of Property Act.
The only right of a tenant who may have put up structure on the demised land is to remove the structure at the time of delivery of possession on the determination of the lease.
Section 9 confers an additional statutory right on a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the proper ty.
The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature.
Whenever an application is made by a tenant before the Court for issuance of direction to the landlord for the sale of the whole or part of the land to him, the Court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
This determination can obviously be made only after an enquiry is held by the Court having regard to the area of the demised land and the extent of super structure standing thereon, and the tenant 's need for the land for the benefi cial enjoyment of the super structure which he may have constructed thereon.
The enquiry pre supposes that the tenant making the application has been in the occupation of the land and the super structure wherein he may be either, residing or carrying on business, and on his eviction he would be adversely affected.
The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed super structure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business.
Section 9 (1) (b) ordains the court to first decide the minimum extent of the land which may be necessary for the convenient enjoy ment by the tenant, it therefore contemplates that the tenant requires the land for the convenient enjoyment of the property.
If the tenant does not occupy the land or the super structure or if he is not residing therein or carrying on any business, the question of convenient enjoy 745 ment of the land by him could not arise.
The Court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land, it may reject the application and direct eviction of the tenant, in that event the landlord has to pay compensation to the tenant for the superstructure.
In the instant case, admittedly the land in dispute was leased out to N.V. Abdullah Sahib for carrying on business, the Trial Court as well as the First Appellate Court both have recorded concurrent findings of fact that the business which was being carried on by N.V. Abdullah Sahib and his heirs was discontinued in 1964, and except for defendant Nos. 4 and 7, all other defendants have settled down outside Madras and they were not occupying the land or the building thereon nor they were carrying on any business in any por tion of the building on the date of filing of the ejectment suit.
Only in a small portion of the entire land account books of the business was kept and the rest of the land and the super structure standing thereon has been in the occupa tion of sub tenants since 1964.
The Courts have lurther recorded findings that except defendant No. 4 (Appellant No. 1) other defendants are not interested as they did not contest the landlords ' suit for eviction.
These findings clearly show that the none of the defendants have been in occupation of the land of the super structure standing thereon and they have not been carrying on any business therein.
Even in the ejectment suits, barring defendant No. 4 none appeared to contest the suit and ex parte proceedings were taken against them.
The Trial Court as well as the appeal court both have recorded findings that the land in dispute and the super structure has been in occupation of sub tenants since 1964.
In view of these findings the High Court refused to interfere with the orders of the Trial Court as confirmed by the appeal court.
Having regard to these findings and the nature of the tenants ' fight to purchase land under Section 9 being equitable in nature, it would be unreasonable to direct the landlord to sell the land to the tenants.
The facts and circumstances available on record show that the tenants do not require the land for their convenient enjoyment, therefore, it would be inequita ble to direct the landlords to sell the property to the tenants.
It is a matter of common knowledge that price of land, specially in the urban areas has escalated to a great extent and it would not be fair to deprive the landlords of their property and to allow the tenants to enrich at the landlords ' expense.
The law does not intend that the tenant should enrich at the instance of the landlord even though the tenants do not require the land for their convenient enjoyment.
746 We do not therefore find any good reason to interfere with the High Court 's order dismissing the appellants revi sion application.
We accordingly dismiss these appeals but make no order as to costs.
P.S.S. Appeals dismissed.

dataset_name: IN-Abs

summary:
Section 3 of the Tamil Nadu City Tenants ' Protection Act, 1921 provides that every tenant shall on ejectment be entitled to be paid compensation for the value of building which may have been erected by him.
Section 9 of the Act, provides that a tenant who is entitled to compensation under section 3 and against whom a suit for ejectment is instituted may apply for an order that the landlord may be directed to sell the land to him for the price to be fixed by the court.
The predecessor in interest of the appellants had ob tained a lease of vacant land in the city of Madras from the ancestors of the respondent landlords in 1924 and construct ed superstructures thereon for carrying on business.
The business was, however, discontinued in 1964.
A partition suit was filed and the first appellant was appointed receiv er.
Before a final decree could be passed in that suit, the respondent landlords served notices on the heirs of the original tenant terminating the lease and later filed eject ment suits against them.
Only defendant No. 4 (2nd appel lant) and defendant No. 11, advocate receiver (1st appel lant) contested the ejectment suits.
Ex parte proceedings were taken against the other defendants.
Defendant No. 4 filed an application in each of the ejectment suits claiming the benefit of section 9 of the Act, with a prayer to the court for directing the landlords to sell the land to the defend ants and to appoint a commissioner to ascertain the price.
The Trial Court rejected the application on the findings that the defendants were not in occupation of the property, for they had let out the entire building to sub tenants except a small portion thereof where the account books were kept, and that the defendants did not require any portion of the land for running their business or for the convenient enjoyment of the superstructures.
735 On appeal by defendants 4 and 11 under section 9A of the Act, the appellate authority held that as the defendants had not been in possession and occupation of the premises, they were not entitled to the benefit of section 9.
The High Court affirmed the findings of the courts below and dismissed the revision petitions preferred by the appel lants.
Dismissing the appeals, this Court, HELD: Section 9 of the Tamil Nadu City Tenants Protec tion Act, 1921 confers a privilege on a tenant, against whom a suit for ejectment has been filed by the landlord to exercise an option to secure conveyance of only such portion of the demised land as would be necessary for his convenient enjoyment.
It creates a statutory right to purchase land through the medium of the court on fulfilment of the condi tions specified therein.
It is not an absolute right, as the court has discretion to grant or refuse the relief for purchase of the land on the facts of a particular case.
[743G H] S.M.
Transport (P) Ltd. vs Sankaraswamingal Mutt, [1963] Suppl.
1 SCR 282, referred to.
The policy underlying section 9 is directed to safeguard the eviction of those tenants who may have constructed super structures on the demised land so that they may continue to occupy the same for the purpose of their residence or busi ness.
The section contemplates that the tenant requires the land for the convenient enjoyment of the property.
Whenever an application is made by tenant before the Court for issu ance of direction to the landlord for the sale of the whole or part of the land to him the Court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
For this determination the Court must hold an enquiry having regard to the area of the demised land and the extent of superstructure standing thereon and the tenant 's need for the said land.
That inquiry pre supposes that the tenant making the application has been in occupation of the land and the super structure wherein he may be either residing or carrying on business and on his eviction he would be ad versely affected.
The court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land it may reject the application and direct eviction of the tenant.
In that event, the landlord has to pay compensation to the tenant for the superstructure.
[744G H; 745A B] 736 In the instant case, the findings recorded by the courts below clearly show that none of the defendants have been in occupation of the land or the superstructures standing thereon and they have not been carrying on any business therein.
The land in dispute and the superstructure have been in occupation of the sub tenants since 1964.
Thus, the tenants could not be said to require the land for their convenient enjoyment.
Having regard to these findings and the nature of the tenants ' right to purchase land under section 9 it would be inequitable to direct the landlords to sell the land to the tenants.
[745E G] The price of land, specifically in the urban areas, has escalated to a great extent and it would not be fair to deprive the landlords of their property and to allow the tenants to enrich at the landlord 's expense.
[745G H]


judgement:
(Civil) No. 231 of 1987.
(Under Article 32 of the Constitution of India).
Soli J. Sorabjee, P.H. Parekh, Rajender Mahapatra and Ms. Ayesha Misra for the Petitioner.
K.K. Venugopal, D.R. Dhanuka, Mr. Kapil Sibal, Lalit Bhasin, Vineet Kumar and Ms. Nina Gupta for the Respondents.
The following Judgments of the Court were delivered by KHALID, J.
In this writ petition, filed by an Air India employee, who at the relevant time was Deputy Chief Air Hostess, notice was taken for the respondents when the matter came up for admission.
We directed the respondents to file their Counter Affidavit.
Accordingly Counter Affidavit has been filed.
The Petitioner has filed her Rejoinder Affidavit also.
Heard the learned counsel on both sides at some length.
Under the existing rules, namely Regulation 46(1)(c) of the Service Regulation the petitioner was to retire on 28 2 1987 and in fact she retired on that date.
The prayer in the writ petition is to quash the letter sent to her retiring her on 28 2 1987, to declare Regulation 46(1)(c) ultra vires, to direct reconsideration of the decision in Air India vs Nargesh Meerza, ; and to declare that the petitioner will retire only on her attaining the age of 58 years.
Identical questions were raised before this Court in a few writ 730 petitions earlier by some other employees of Air India and they were considered at length by a bench of three Judges in Air India vs Nargesh Meerza and were considered in favour of Air India.
We are bound by this decision.
The learned coun sel for the petitioner submits that this decision needs reconsideration and made a fervent appeal to us to refer the matter for that purpose.
We do not feel persuaded to accept this request.
The main thrust of the submissions by the petitioner 's counsel is based on Article 14 and Article 15 of the Consti tution of India, in that Air India discriminates between the Air Hostesses and the officers like the petitioner of Indian origin and of foreign origin who are employees of Air India.
The contention is that while the employees of India origin have to retire at 35 years with extension till 45, those of foreign origin can go beyond 45 years.
This contention also was considered by this Court in the decision referred above.
The case that Air Hostess recruited outside India can be in the employment of Air India beyond 45 years is met in the Counter Affidavit in the following paragraph: " . .
Therefore, I submit that so far as Air India is concerned, it has not fixed any higher retirement age for Air Hostesses who are recruited outside India.
In U.K. there are only six Air Hostesses and they are also being phased out.
The Senior most Air Hostess in U.K. in terms of age is 41 years old.
It is further pertinent to note that there are only six Air Hostesses presently employed in U.K. These Air Hostesses belong to different na tionalities and speak different European languages with a view to dealing with passen gers conversant only with these languages.
I say that Air India has been encouraging its Indian Air Hostesses to learn European lan guages.
In view of this position Air India is in the process of phasing out the European Air Hostesses employed in U.K.
It is also perti nent to note that Air India has appointed a few Air Hostesses in Japan.
These Air Hostess es were also appointed for the same reason i.e. their knowledge of the Japanese language.
The Air Hostesses employed in Japan would also retire upon reaching the normal age of retire ment applicable to Indian Air Hostesses.
I say that the service conditions and terms of appointment of the Air Hostesses appointed abroad are different than the service condi tions 731 of Air Hostesses appointed in India.
It is of utmost importance to note that no Air Hostess appointed is promoted to the post of Deputy Chief Air Hostess, Additional Chief Air Host ess or Chief Air Hostess.
These promotional avenues are available only to the Air Hostess es appointed in India From the above extract we find that Air India 's policy now is to phase out Air Hostesses recruited outside India and restore uniformity in their retirement age.
In U.K., there are only six Air Hostesses, the senior most among whom is only aged 41.
The provisions of Sex Discrimination Act, 1975 applicable to United Kingdom was brought to our notice.
Part II deals with discrimination in the employment field.
Section 6(1)(b) and Section 6(2) make discrimination against a woman in the terms of service, promotion opportunities and termination unlawful.
But Section 6(4) protects provisions which relate to death and retirement from the vice of the above sections.
We refer this only to reassure ourselves that it would be possible for Air India to phase out U.K. incumbents when they attain the age of 45.
Air Hostesses employed in Japan would also retire upon reaching the normal age of retirement applicable to Indian Air Hostesses.
It is useful to note that Air Hostesses who are recruited outside India are not entitled to the benefits of promotion to which Indian Air Hostesses are entitled.
We are of the view that this should satisfy the petitioner.
The case that the petitioner is not an Air Hostess, but belongs to a separate class can also not be accepted.
This case did not find favour with this Court in the above deci sion either.
The duties and functions of Deputy Chief Air Hostess includes operation service as a regular line Air Hostess and she will be required to perform the same func tions as that of other Air Hostesses.
The writ petition thus is devoid of any merit and hence is dismissed.
OZA, J. Having gone through the judgment dictated by my learned brother Khalid J. although I agree with the conclu sions arrived at by him but will like to add my own reasons for the conclusions.
When this petition came up before us the main ground which moved us to issue notice was that the Air India employ Indian as well as girls coming from different nationalities as air hostesses and in respect of the age of retirement there are different rules for airhostesses recruited from different countries.
It was alleged that whereas an Indian recruited as air hostess will normally retire at the 732 age of 35 years which could be extended upto 45, a British girl recruited as air hostess retires at the age of 55 years and this, according to the petitioner, was discrimination on the basis of colour.
In return the stand taken by the Air India is that "As a matter of fact the Air Hostess recruited by British Airways in India retire at the age of 36 years in India whereas their counterparts in U.K. retire at the age of 55 years.
" It is unfortunate that the second respondent a Corporation which is for all purposes State within the meaning of the term as provided in Article 12 of Constitution of India should follow the British Airways in treating Indians dif ferentially and discriminate against them.
Reliance was also placed in return on the decision of this Court in Air India etc.
vs Nergesh Meerza & Ors.
; , In return a passage has been quoted which appears at page 472 of the judgment.
It is true that this is what has been observed in this judgment by a Bench of three Judges of this Court.
It is observed: " . .
There is no complaint by the peti tioners that between the separate class of AHs inter se there has been any discrimination regarding any matter.
In fact, the only point raised on this aspect was that AHs employed by A.I. in U.K. have different conditions of service from AHs serving A.I. in countries other than U.K. Doubtless this distinction is there but this is really a fortuitous circum stances because A.I. was forced to comply with the local laws of U.K. in order to increase the age of retirement of AHs posted in Eng land.
Surely we cannot expect A.I. to commit an offence by violating the laws of U.K . . " It appears as it was also contended that they are bound by the decision of this Court.
It is no doubt true that this is the decision which is binding but even in a situation as has been indicated in this judgment that Air India in order to avoid committing an offence in accordance with the law of United Kingdom is choosing to disregard Article 14 of the Constitution.
But I have no hesitation that an Indian citi zen in such a situation would prefer to walk off from a State where he may have to flout our Constitution to save himself from commission of an offence.
All the more the same is expected of respondent No. 2, a corporation controlled by the Government of India.
It is expected that this corpora tion would abide by the requirement of article 14 rather than anything else.
If need be, it has to walk out of a country where it may become impossible to act in accordance with the ideals of our Constitution or where it may become necessary to disregard the provisions of our 733 Constitution and it is not something new as we have been keeping away from countries which follow apartheid policies.
But I am happy that Shri Venugopal, senior advocate appear ing for respondent No. 2 frankly stated that his colleague learned counsel Shri Lalit Bhasin got the United Kingdom Sex Discrimination Act, 1975 further examined and now it is clear that in view of Section 6 sub clause 4 of that Act it will not be a contravention of that law to have the same age of retirement for an air hostess recruited in U.K. as is provided for an airhostess recruited of Indian origin.
It appears that this was the law (United Kingdom Sex Discrimi nation Act, 1975) which was perhaps in the minds of the Judges in Air India 's case.
In view of this learned counsel frankly stated that henceforth air hostesses recruited anywhere will be treated in the same manner as air hostesses recruited from India and it is only on this frank admission made by learned counsel for respondent No. 2 that we see no reason to entertain the petition.
In this view of the matter I agree with the con clusions reached by my learned brother, Khalid, J. A.P.J. Petition dismissed.

summary:
The petitioner, who was employed as Deputy Chief Air Hostess in Air India, flied this petition under Article 32 of the Constitution, alleging that while the employees of Indian origin have to retire at 35 years with extension till 45, those of foreign origin can go beyond 45 years, which is discriminatory and violative of Articles 14 and 15 of the Constitution.
Accordingly, prayer was made to quash the letter sent to her retiring her on 28.2.1987, to declare Regulation 46(1)(c) of the Service Regulations ultra vires, to direct reconsideration of the decision in Air India vs Nargesh Meerza; , and to declare that the petitioner will retire only on her attaining the age of 58 years.
In the. counter affidavit it was alleged that Air India has not fixed any higher retirement age for Air Hostesses who are recruited outside India, that Air India has appoint ed a few Air Hostesses abroad who belong to different na tionalities and speak different European languages with a view to deal with passengers conversant only with 728 these languages, that Air India has been encouraging its Indian Air Hostesses to learn European languages and in view of this 'position Air India is in the process of phasing out Air Hostesses of foreign origin, that service conditions and terms of appointment of the Air Hostesses appointed abroad are different than the service conditions of Air Hostesses appointed in India and that no Air Hostess of foreign origin is promoted to the post of Deputy Chief Air Hostess, Addi tional Chief Air Hostess or Chief Air Hostess.
These promo tional avenues are available only to the Air Hostesses appointed in India.
Dismissing the Petition, HELD: (Per Khalid, J) 1.
Identical questions were raised and considered at length by this Court in Air India vs Nargesh Meerza (supra) and that decision is binding.
[730A B] 2.
Air India 's policy now is to phase out Air Hostesses recruited outside India and restore uniformity in their retirement age.
[731B C] 3.
The petitioner is an Air Hostess and does not belong to a separate class.
The duties and functions of Deputy Chief Air Hostess includes operation service as a regular line Air Hostess and she will be required to perform the same functions as that of other Air Hostesses.
[731F] 4.
Air Hostesses who are recruited outside India are not entitled to the benefits of promotion to which India Air Hostesses are entitled.
This should satisfy the petitioner in the instant case.
[731E] Per Oza, J.) 1.
Air India being a Corporation is for all purposes State within the meaning of Article 12 of the Constitution of India and it cannot follow a foreign Corporation in treating Indians differently and discriminate against them.
[732B C] Air India etc.
vs Nargesh Meerza & Others etc.
; , , referred to.
Air India in order to avoid committing an offence abroad cannot disregard Article 14 of the Indian Constitu tion.
An Indian citizen in such a situation should prefer to walk off from a State where he may 729 have to flout Indian Constitution to save himself from committing of an offence.
Air India should abide by the requirements of Article 14 rather than anything else.
[732F G] 3.
It has been conceded that in view of section 6(4) of the United Kingdom Sex Discrimination Act, 1975 it will not be a contravention of that law to have the same age of retirement for an Air Hostess recruited in U.K. as is provided for an Air Hostess recruited of Indian origin.
[733B C] 4.
In view of the policy of Air India that henceforth Air Hostesses recruited anywhere will be treated in the same manner as Air Hostesses recruited from India no interference is called for.
[733C D]


judgement:
: Criminal Appeal Nos. 285 & 286 of 1986.
From the Judgment and Order dated 7/10.2.86 of the Madhya Pradesh High Court in Criminal Appeal Nos. 1403 to 1404 of 1985.
U.R. Lalit, G.K. Sharma and S.K. Sabharwal for the Appel lants.
T.C. Sharma for the Respondent.
The Judgment of the Court was delivered by KHALID, J.
The appellants Ram Narayan and his son Mahesh have been convicted under Section 302 I.P.C. and sentenced to death.
They are the residents of Village Hinota.
They are alleged to have committed five murders on 21 6 1984 at about 6.30 P.M.
The deceased are Puran Baraua, his wife, Narbad Bai, his mother, Mula Bai, his daughter Kumar Nanhi Bai and his neighbour Gulab.
The learned counsel for the appellants tried to take us through the evidence to persuade us to re appreciate it.
The evidence has been considered minutely by the Courts below.
Then he put forward a feeble right of private defence which has no substance.
Then he made a fervent appeal before us regarding the sentence imposed.
It is useful to advert to one fact which has come out the evidence in the case.
The root cause of the gruesome murder appears to be the marriage of a lady belonging to a higher caste with a Harijan boy.
The High Court deals with it in paragraph 19 as follows: "19.
It may be pointed out that it is clear from the evidence that the incident occurrence when the appellant Mahesh had broken the earthen pot of the deceased Narbad Bai at the well on the ground that the appellents 712 treated Pooran and his inmates of the lower caste because Jankibai, one of the daughters of Pooran had taken a Harijan as her husband.
" The High Court felt compelled to express its concern about the evil of untouchability in paragraph 18, at page 46, as follows: "It is unfortunate that evil of untouchability was still prevalent in some parts of our country even after 38 years of independence and 30 years of coming into force of the untouchability Act, 1955, which evident by the facts of the instant case.
Indeed it is a matter of great concern that very often there occur grave occurrences including group mur ders resulting into untimely death of innocent persons by those who still believe in toucha bility as their way of life.
The present case is one of those gravest killings, and ghastly murders of five persons by the appellants who deserve condemnation by awarding severest punishment provided under the law.
" The evidence shows that Mahesh axed Narbadbai without any provocation, from any member of his family.
Thereafter, Pooran was assaulted and axed by Mahesh.
When the assault of these two persons, by the father and son, was on, the mother of Pooran came from inside and questioned as to why they were doing this.
She too was killed by giving her axe blows by the appellants.
When the neighbour Gulab asked the appel lants as to why they were murdering these people, he was also axed to death by the appellants.
A young girl aged about 14 years standing near the bathing place at the corner of the house was also not spared.
Mahesh gave her an axe blow, on receipt of which she fell down at some distance and died.
The evidence further shows that the blood thirst of the accused was so intense that they knocked and tried to break open the door of the room where Nandram, P.W. 1 and his wife Savithri Bai, P.W. 2 were hiding to save themselves and they left the place only when the door could not be broken.
It is against this background that the request of the appellants ' counsel for interference with the sentence has to be considered.
The High Court observes that the act of the appellant: "was extremely brutal, revolting and gruesome which shocks the judicial conscience." And again as "in such shocking nature of crime as the one before us which is so cruel, barbaric and revolting, it is necessary to impose such maximum punishment under the law as a measure of social necessity 713 which work as a deterrent to other potential offenders.
" We share the concern of the High Court.
We also feel that it will be a mockery of justice to permit these appel lants to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser pun ishment for the appellants would be to render the justicing system of this country suspect.
The common man will lose faith in courts.
In such cases, he understands and appreci ates the language of deferrence more than the reformative jargon.
When we say this, we do not ignore the need for a reformative approach in the sentencing process.
But here, we have no alternative but to confirm the death sentence.
Accordingly, we dismiss the appeals.
P.S.S. Appeals dismissed.

summary:
The prosecution alleged that the appellants father and son, had committed the murder of five innocent persons.
The root cause of the crime was said to be that one of the daughters of the deceased had taken a Harijan as her hus band, and for that the appellants were treating them as lower caste.
The evidence showed that the appellants had assaulted and axed the wife, husband and his mother without any provocation from them.
A neighbor, who asked as to why the appellants were murdering those people, was also axed to death.
A young girl aged about 14 years, who was standing near the scene of occurrence, was also not spared.
The blood thirst of the appellants was so intense that they then knocked and tried to break open the door of the room where P.W. Nos. 1 and 2 were hiding to save themselves, and they left the place only when the door could not be broken.
The appellants were convicted under section 302, I.P.C. and sentenced to death.
The High Court observed that the case was one of the gravest killings and ghastly murders, that the act of the appellants was extremely brutal, revolting, gruesome and shocking to the judicial conscience, and that the nature of crime being so cruel and barbaric it was necessary to impose the maximum punishment under the law as a measure of social necessity to work as a deterrent to other potential offenders.
Dismissing the Appeals of the appellants, the Court, 711 HELD: There is no alternative but to confirm the death sentence.
The evidence has been considered minutely by the courts below.
It will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for them would be to render the justicing system of this country suspect.
The common man will then lose faith in courts, for in such cases he understands and appreciates the language of deferrence more than the reform ative jargon.
To say so, is not to ignore the need for a reformative approach in the sentencing process.
[713A C]