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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 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.

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.

(f) The figures for comparison will be the gross salaries for the month of May 1975.

(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 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.