MANIBEN MAGANBHAI BHARIYA VS DISTRICT DEVELOPMENT OFFICER DAHOD & ORS.
MANIBEN MAGANBHAI BHARIYA VS DISTRICT DEVELOPMENT OFFICER DAHOD & ORS.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 3153 OF 2022
(@ SLP(CIVIL) No. 30193 of 2017]
MANIBEN MAGANBHAI BHARIYA … APPELLANT(S)
v.
DISTRICT DEVELOPMENT OFFICER
DAHOD & ORS. … RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 3154 OF 2022
(@ SLP(CIVIL) No. 30834 of 2017]
CIVIL APPEAL NO(S). 3155 OF 2022
(@ SLP(CIVIL) No. 30809 of 2017]
CIVIL APPEAL NO(S). 3156 OF 2022
(@ SLP(CIVIL) No. 30820 of 2017]
CIVIL APPEAL NO(S). 3157 OF 2022
(@ SLP(CIVIL) No. 5392 of 2018]
AND
CIVIL APPEAL NO(S). 3158 OF 2022
(@ SLP(CIVIL) No. 29011 of 2018]
1
J U D G M E N T
Rastogi, J.
1. I have had the advantage of going through the judgment
penned by my brother Abhay S. Oka, J. I entirely agree with the
conclusions which my erudite Brother has drawn, based on the
remarkable process of reasoning. I wish to add few lines and
express my views not because the judgment requires any further
elaboration but looking for the question of law that emerged of
considerable importance.
2. The moot question which has been raised in the instant
appeals for our consideration indeed is a question which may not
only determine the rights of the contesting appellants working as
Anganwadi workers/helpers who are discharging a pivotal role in
the society at the grassroot level and are the role model of the ICDS
2
scheme which is one of the extended arm of the Ministry of Women
and Child Development, at the given time, it may also give a
thought process to the Legislature to consider as to whether the
applicability of gratuity being a social security measure, be
extended to the employees who served the establishment in an
organized or unorganized sector and, in one way or the other,
contributing in the sustainable development of the nation.
3. Looking to the large number of persons working in the
organized/unorganized sector by passage of time, different social
security legislations have been introduced in this largest democratic
country, which can be divided into two broad categories, namely,
the contributory and noncontributory. The contributory laws are
those which provide for financing of the social security programmes
by contributions paid by employees and employers and in some
cases supplemented by contributions/grants from the Government.
At the same time, we have major noncontributory laws such as the
Employee’s Compensation Act, 1923, the Maternity Benefit Act,
1961 and the Payment of Gratuity Act, 1972 with which we are
presently concerned.
3
4. When we talk about social security legislations, two broad
categories are social insurance legislation and social assistance
legislation. In social insurance, benefits are generally made
available to the insured persons under the condition of having paid
the required contributions and fulfilling certain eligibility conditions
and as regards social assistance, the beneficiaries receive benefits
as a matter of right, but they do not have to make any contributions
and to support thereof, the finance is made available either by the
State or a source provided by the State/Central Government.
5. Before the enactment of the Payment of Gratuity Act, 1972
(hereinafter referred to as “Act, 1972”), there were two State Laws
providing for payment of gratuity. These were the Kerala Industrial
Employees’ Payment of Gratuity Act, 1970 and the West Bengal
Employees’ Payment of Gratuity Act, 1971. The question of having
a central legislation on the subject was discussed at length in the
Labour Minister’s Conference held on many occasions and after
general consensus was reached, the Central Legislation was
4
enacted in the form of The Payment of Gratuity Act, 1972, which
was brought into force on 16th September, 1972.
6. When we talk about the mandate of the Act 1972, if one looks
into the scheme in a holistic manner, gratuity is a reward for good,
efficient and faithful service rendered for a considerable period and
the employee who remains in continuous service for 5 years or more
including superannuation/retirement/resignation/untimely death
becomes qualified to claim gratuity in terms of the computation as
has been provided under Subsection (2) of Section 4 of the Act,
1972 which covers in its fold, the large sector of
organized/unorganized workers/employees who are employed in
various class of establishments covered under Section 1(3)(a) & (b)
and also notified by the Central Government under Section 1(3)(c )
of the Act 1972. Such of the employees working under the
establishments referred to under Section 1(3) (a),(b) and (c ), as the
case may be, shall be eligible to claim payment of gratuity in terms
of Section 4 of the Act, 1972 and so far as the term ‘wages’ defined
under Section 2( s) of the Act 1972 is concerned, it appears to be
only for the purpose of computation as provided under Subsection
5
(2) of Section 4 of the Act and withholding of gratuity is not
permissible under any circumstances other than those enumerated
under Subsection (6) of Section 4 of the Act, 1972. The employee
defined under Section 2(e) has a right to claim gratuity as a
statutory right while working in the establishment covered under
Section 1(3) of Act 1972. Section 1(3) and 2(e) and 2(s) of Act, 1972
relevant for the purpose are referred to as under:
“1(3) It shall apply to –
(a) every factory, mine, oilfield, plantation, port and railway
company;
(b) every shop or establishment within the meaning of any law for
the time being in force in relation to shops and establishments in a
State, in which ten or more persons are employed, or were
employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which
ten or more employees are employed, or were employed, or, any
day of the preceding twelve months, as the Central Government
may, by notification, specify in this behalf.
2. Definitions. – In this Act, unless the context otherwise
requires,
………………
(e) "employee" means any person (other than an apprentice) who is
employed for wages, whether the terms of such employment are
express or implied, in any kind of work, manual or otherwise, or in
connection with the work of a factory, mine, oilfield, plantation,
port, railway company, shop or other establishment to which this
Act applies, but does not include any such person who holds a
post under the Central Government or a State Government and is
governed by any other Act or by any rules providing for payment of
gratuity.
……………
6
(s) “wages” means all emoluments which are earned by an
employee while on duty or on leave in accordance with the terms
and conditions of his employments and which are paid or are
payable to him in cash and includes dearness allowance but does
not include any bonus, commission, house rent allowance,
overtime wages and any other allowance.”
7. Act, 1972 on the genre of statutes like The Minimum Wages
Act, Employees State Insurance Act, etc. is a welfare measure to
secure social and economic justice to employees to assist them in
old age and to ensure them a decent standard of life on retirement.
8. Derived from a Latin word ‘Gratuitas’, the term Gratuity means a
‘Gift.’ In the industrial sector, gratuity is considered as a gift from the
employers to their employees. Gratuity is a lump sum payment paid
by an employer to the employee for his/her past dedicated services. It
is a gesture to appreciate the efforts of a person towards the
betterment, development and prosperity of an establishment and that
is the reason for which gratuity is considered to be a social security,
and with passage of time, it has become a statutory obligation on the
part of employers.
9. Thus, gratuity, as a social welfare legislation, its effective
implementation is of paramount importance to fulfil the legitimate
7
expectation of the employees. So far as the unorganized sectors are
concerned, these Acts have been pillars in social security and laid
the foundation for improvement in standards of living of the
employees.
10. The Act 1972 is a social security legislation to wage earning
population in industries, factories and establishments, etc.
Therefore, considering the inflation and wage increase even in case
of employees engaged in private sector, the Government decided
that the entitlement of gratuity should be revised in respect of
employees who are covered under Act, 1972 and accordingly, the
Government initiated the process for amendment to Act, 1972 to
increase the maximum limit of gratuity to such amount as may be
notified by the Central Government from time to time.
11. This will indeed ensure harmony amongst employees in the
private sector and in Public Sector Undertakings/Autonomous
Organizations under Government who are not covered under CCS
(Pension) Rules. These employees will be entitled to receive higher
8
amount of gratuity may not be at par with their counterparts in
Government sector.
12. That appears to be the reason for which amendments are made
in the year 2007 to widen the definition of the term “employee” and to
bring under its fold the large number of employees working in various
establishments employed for wages or in any kind of work or in
connection with the work of a factory, mine, oilfield, plantation, port,
railway company, shop or any other establishment. Even by later
notification, teachers have also been held eligible to claim gratuity.
13. When social security legislations are being interpretated, it
always has to be interpreted liberally with a beneficial interpretation
and has to be given the widest possible meaning which the language
permits, known as Beneficial Interpretation. When a statute is meant
for the benefit of a particular class and if a word in the statute is
capable of two meanings, i.e., one which would preserve the benefits
and one which would not, then the former is to be adopted.
14. Maxwell on Beneficial Construction holds the following:
“The construction of a statute must not strain the words as to
include cases plainly omitted from the natural meaning of the
9
language. Nevertheless, even where the usual meaning of the
words falls short of the object of the legislature, a more extended
meaning will be attributed to them if they are fairly susceptible to
it. The relaxation of strictly literal rule of interpretation is known
as beneficial construction.”
15. This Court had an occasion to examine discussions in detail
about constructive and welfare legislations. The judgment in State
Bank of India Vs. Shri N. Sundara Money1
followed with
Bangalore Water Supply and Sewerage Board Vs. A. Rajappa
and others2
; Sant Ram Vs. Rajinder Lal and others3
and later the
Constitution Bench in Steel Authority of India Ltd. and others Vs.
National Union Waterfront Workers and others 4
are the
exposition of law on the subject.
16. When we examine the judicial precedents while interpreting the
Act 1972, we come across certain judgments of this Court in State of
Punjab Vs. Labour Court, Julludur and others5
; Ahmedabad
Private Primary Teachers’ Association Vs. Administrative Officer
1 1976(1) SCC 822
2 1978(2) SCC 213
3 1979(2) SCC 274
4 2001(7) SCC 1
5 1980(1) SCC 4
10
and others6
; Jaya Bachchan Vs. Union of India and others 7
;
State of Karnataka and others Vs. Ameerbi and others8
and
Birla Institute of Technology Vs. State of Jharkhand and others9
may be in the different context.
17. While adverting to the facts of the instant cases, it manifests
from the record that the five appellants joined as Anganwadi
workers/helpers between the period 19821985 and served for 2131
years and stood retired between February 2006 and February 2012.
When gratuity was not paid to them, each of them filed their
applications before the prescribed authority. After taking note of the
claim of each of the appellants, the prescribed authority held in their
favour with a direction to the respondents to pay gratuity in terms of
the procedure for computation referred to under Section 4 of the Act
1972. The order of the prescribed authority under the Act, 1972
came to be confirmed by the appellate authority and also by the
learned Single Judge of the High Court vide judgment dated 6th June,
2016 but the finding returned by the learned Single Judge came to be
6 2004(1) SCC 755
7 2006(5) SCC 266
8 2007(11) SCC 681
9 2019(4) SCC 513
11
reversed by the Division Bench of the High Court under the impugned
judgment primarily relying on the judgment of this Court in Ameerbi
(supra). The details of each of the appellant who had served in
Anganwadi workers/helpers are reproduced below:
Date
Of
Joining
Date of
Retirement
Number of
Years of
Service
Amount
directed to
be paid
towards
gratuity
SCA
1219/2016
1982 27.02.2011 29 Rs.20,913/
SCA
1220/2016
19.01.1984 30.04.2011 27 Rs.38,942/
SCA
1221/2016
03.08.1983 30.04.2006 23 Rs.13,269/
SCA
1222/2016
16.04.1981 29.02.2012 31 Rs.22,356/
SCA
1223/2016
03.06.1989 20.02.2006 21 Rs.15,144/
18. This Court took a judicial notice that after the incumbent has
served for 2131 years but because of the wages being admissible at
the relevant time being Rs. 1000/ or Rs. 1250/ per month, the
amount which has been computed towards gratuity in terms of the
provisions of the Act 1972 is only into thousands of rupees.
12
19. The role of Anganwadi workers (AWW) and Anganwadi helpers
(AWH) is not only at war against malnutrition but have played a
pivotal and significant role during the Covid19 pandemic which
was the unprecedented health war faced by the nation in
responding to the various challenges posed. These frontline women
workers are the backbone of the ICDS. The ICDS scheme was
introduced on 2nd October, 1975 and by this time has successfully
completed its journey of 47 years and established its roots. The
record shows that ICDS is the world’s largest programme for early
childhood care and development, covering over 158 million children
as per 2011 census, and pregnant and lactating mothers in the
country. If we go as per the statistics as of June 2018, there were
1.36 million functional Anganwadi centres spread across all the
districts in the country. These districts are staffed by frontline
health staff: one Anganwadi worker and one Anganwadi helper.
Majority of these centres are located in difficult terrains and these
women have to trek for kilometres every day to discharge their
duties. In the pandemic, these workers took the additional duty to
homedeliver ration to ICDS beneficiaries and also educate rural
13
people about dos and dont’s of coronavirus and prepare a list of
outsiders visiting the villages.
20. ICDS scheme is not just a welfare scheme but a means of
protecting the rights of children under six including their right to
nutrition, health and joyful learning and rights of pregnant and
lactating mothers. The survival, wellbeing and rights of children
become social issues of interest to the whole community and not
just to the mothers of the families concerned. “Socialised childcare”
also contributes to the liberation of women: it lightens the burden of
looking after children, provides a potential source of remunerated
employment for women and gives them an opportunity to build
women’s organizations. In light of these rich contributions of
childcare to social progress, ICDS deserves far greater attention in
public policy since ICDS acts as an institutional mechanism for
realization of child and women rights. Yet these services are
regarded as State largesse rather than as enforceable entitlements.
21. If we take a holistic view of the matter, extending social
security to the early child care and development of millions of
14
children of this country, health and nutrition services to children is
a good investment. The study indicates that returns to child
nutrition are quite high, or at least can be quite high in this
country. Thus, ICDS is an extended arm of the Ministry of Women
and Child Development and their nature of services been provided
to a common man must be acknowledged by the legislation.
22. The National Family Health Survey (200506) indicates that
48% of children under five are stunted and 43% are underweight for
their age. There is a worldwide consensus among psychologists,
educationists, pediatricians and sociologists regarding the
significance of early years of life for the optimum development of
child. Early childhood is a time of remarkable brain development
that lays the foundation for later learning and any damage or
impoverishment suffered at this stage is likely to be irreparable.
These are years of extreme vulnerability and tremendous potential
during which adequate protection, care and stimulation are
essential to provide the foundation for the child’s wellbeing and
development. A lack of adequate nutrition and proper care has
irreversible consequences. Poor nutrition has a negative impact on
15
school enrollment and readiness. Undernourished children are less
likely to enroll in school and would drop out, if enrolled. A severe or
chronic lack of essential nutrients in childhood impairs language,
motor and socioemotional development. In addition, extending the
provision of safe drinking water and proper sanitation would reduce
infant and child mortality drastically.
23. When we talk about fundamental rights and rights of children
under six years, recognizing the significance of childcare and
development in realizing the goal of national progress, the Founding
Parents enacted several provisions concerning welfare and
development of children, especially in Parts III and IV of the
Constitution. The Fundamental Rights and Directive Principles of
State Policy have provided an inspiration to all legislations
concerning child welfare, education and development.
24. Article 15(3) provides for affirmative action for women and
children and is of great significance under which several beneficial
laws and programmes have been passed. Jurisprudence developed
by passage of time under Article 21 of the Constitution by this
16
Court underlines the primary importance of early childhood
developments. As right to food, nutrition and health have been
judicially crafted as being part and parcel of the Right to Life to
which every citizen, including a child is entitled to. It is taking this
approach that right to free education up to the age of 14 years was
read into Article 21 by this Court in Unni Krishnan J.P. and
others Vs. State of Andhra Pradesh and others10
.
25. This Court, while creating such right made an important
observation that Right to Life has to be read in light of Directive
Principles of State Policies, viz. Articles 41, 45 and 46, eventually,
give specificity of the needs of children under six, and the value of
having a positive right ensuring to the child the right to full
development, Article 21A was inserted through the 86th
Amendment Act, 2002 in the Constitution, recognising the
fundamentality of the right to education for children between the
age group of six to fourteen. Although the 86th Amendment
brought a Directive Principle of State Policy, ignored until now,
within the folds of Part III of the Constitution, it excluded children
10 (1993)4 SCC 111
17
below the age of six, thus denying them education for proper growth
and development.
26. When we talk of national development, their concerns were
amply reflected in the enactment of Articles 39(e) and (f) of the
Constitution. These two provisions provide for health care and
protection of its citizens, including children. While Article 39(e)
stipulates that the State shall direct its policy towards securing
“that the health and strength of workers, men and women and the
tender age of children are not abused” and “that the citizens are not
forced by economic necessity to enter avocations unsuited to their
age or strength”. At the same time, Article 39(f) requires the State
to ensure that “the children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and
dignity and that the childhood and youth are protected against
exploitation and against moral and material abandonment.”
27. Article 45 provides that “the State shall endeavor to provide
early childhood care and education for all children until they
complete the age of six years”. This provision makes the right to
18
early childhood care and education an explicit Constitutional
Objective, which can be further supported by later enactment in
October 2010, i.e., the Right of Children to Free and Compulsory
Education Act, 2009 (RTE), that came to be introduced “with a view
to prepare children above the age of three years for elementary
education and to provide early childhood care and education for all
children until they complete the age of six years, the appropriate
Government may make necessary arrangement for providing free
preschool education for such children”.
28. Health and nutrition are other sectors which are also primary
area for young child. The right to nutrition and healthcare in fact
constitutes the most basic and fundamental right of children.
Absence of legally enforceable entitlements makes children
especially undersix more vulnerable to neglect and discrimination.
29. At the same time, health, especially the reproductive health of
the mother and the health of the infant child are closely related.
Recognizing this close relationship, this Court in a petition
(popularly known as petition for right to food) filed by the PUCL
19
held Central and State Government responsible for providing ICDS
services including supplementary nutrition, nutrition and health,
education, etc. not only to every child under the age of six but to
pregnant women and lactating mothers as well – a clear
endorsement of binding relation of mother and child’s health.
30. Further recognizing the special needs of pregnant and
lactating mother and its relation to child’s health, which has been
acknowledged and recognized under Section 4 of the National Food
Security Act, 2013 wherein provisions have been made entitling
such women to “meal, free of charge during pregnancy and six
months after the childbirth, through local Anganwadi, so as to
meet the nutritional standards specified in Schedule II of the Act.”
31. The vision of ICDS scheme is to empower women living with
dignity to contribute as equal partners in development in an
environment free from violence and discrimination along with well
nurtured children with full opportunities for growth and
development in a safe and protective environment.
20
32. The mission and mandate of the scheme of ICDS is to promote
social and economic empowerment of women through crosscutting
policies and programmes, mainstreaming gender concerns, creating
awareness about their rights and facilitating institutional and
legislative support for enabling them to realize their human rights
and develop to their full potential. The second is to ensure
development, care and protection of children through crosscutting
policies and programmes, spreading awareness about their rights
and facilitating access to learning, nutrition, institutional and
legislative support for enabling them to grow and develop to their
full potential.
33. When we go further and take note of ICDS scheme
implemented through Anganwadis, a pivotal role is being played by
Anganwadi workers and Anganwadi helpers, by taking care of
children in the age group 06 years, which, as already observed,
constitutes around 158 million children as per 2011 census. These
children are the future human resource of the country. The
Ministry of Women and Child Development is implementing various
schemes for welfare, development and protection of children.
21
34. ICDS Scheme is one of the flagship programmes of the
Government of India and represents one of the world’s largest and
unique programmes for early childhood care and development. It is
the foremost symbol of country’s commitment to its children and
nursing mothers, as a response to the challenge of providing preschool nonformal education on one hand and breaking the vicious
cycle of malnutrition, morbidity, reduced learning capacity and
mortality on the other. The beneficiaries under the Scheme are
children in the age group of 06 years, pregnant women and
lactating mothers.
35. The objectives of the Scheme are:
● to improve the nutritional and health status of
children in the agegroup 06 years;
● to lay the foundation for proper psychological, physical
and social development of the child;
● to reduce the incidence of mortality, morbidity,
malnutrition and school dropout;
● to achieve effective coordination of policy and
implementation amongst the various departments to
promote child development; and
● to enhance the capability of the mother to look after
the normal health and nutritional needs of the child through
proper nutrition and health education.
22
36. If we examine the role of Anganwadi workers/helpers, in the
context of community support and participation, they have played a
significant role in facilitating child nutrition. A conjoint reading of
Sections 3, 4, 5, 6 & 7 of the National Food Security Act, 2013
would unerringly point to the fact that effective implementation of
the aforementioned provisions of the Act largely depends on the
Anganwadis, which are run by Anganwadi workers/helpers, etc.,
who are village level workers/ward level workers and in charge for
delivery of the various services envisaged under the Act.
37. Their daily tasks include taking responsibility for preschool
activities for children in the age group of 36 years, arranging
supplementary nutritional food for children of age group 6 months
to 6 years and expectant and nursing mothers, giving health and
nutrition education to mothers, making home visits for educating
parents, eliciting community support and participation, assisting
the Primary Health Centre Staff in implementation of immunization,
among others.
23
38. Anganwadi workers/helpers are the key facilitators of child
nutrition initiatives at the ground level and involved in performing
the work of dissemination, publicity, building awareness, and
implementation of various schemes of the Government. No wonder,
the strength of Anganwadi Centres has increased manifold by
passage of time in the country.
39. Anganwadi workers/helpers also function as a bridge between
the Government and the targeted beneficiaries in delivering a
bouquet of services stipulated under the NFSA. They work in
proximate quarters with the beneficiaries and their services are
utilized by the respective State Governments for a wide range of
activities be it survey, promotion of small savings, providing
health care, group insurance, or nonformal education.
40. If we look towards the problems plaguing the Anganwadi
workers/helpers, the first and foremost, they are not holders of civil
posts due to which they are deprived of a regular salary and other
benefits that are available to employees of the State. Instead of a
salary, they get only a so called paltry ‘honorarium’ (much lower
24
than the minimum wages) on the specious ground that they are
parttime voluntary workers, working only for about 4 hours a day.
41. The other argument which has been advanced by the learned
counsel for the respondents denying them parity with other
employees is that their work is stated to be of a community
participation and their names are neither sponsored from the
employment exchange nor they are bound by the code of conduct.
The further objection raised is that posts have been filled up
without advertisement and there is no requirement to comply with
any statutory recruitment rules.
42. It may be relevant to note that the contribution of Anganwadi
workers/helpers at the grassroot level under the ICDS scheme is
being well acknowledged by the Government of India, Ministry of
Women and Child Development and in the last few years, it has also
witnessed not only an exponential increase in the Anganwadi
centres/workers but also significant specific efforts aimed at
ensuring quality in the delivery of services and community
participation. Indeed, the responsibilities of the Anganwadi
25
workers/helpers have tremendously increased which now require to
perform multiple tasks ranging from delivery of vital services,
involving Community/women’s groups/Mahila Mandals and for
ensuring the effective convergence of various sectoral services. For
restructuring and strengthening of ICDS, provisions have been
made for rationalization of appointment of Anganwadi workers as
Supervisors which is a cadre post under the Government.
43. The relevant part of the policy decision dated 15th September,
2015 is referred to as under:
“The above position has been reviewed keeping in view the
aspirations of these field functionaries, to encourage their
participating in the higher posts vis a vis their merit and to
improve their career prospects. The following guidelines on
promotion and appointment of AWWs to the posts of Supervisors,
in supersession of earlier guidelines, are conveyed to the
States/UTs for compliance:
(i) The 50% of vacancies in the posts of Supervisors would be
filled up by promotion from amongst AWWs with 10 years of
experience as AWWs and having the prescribed educational
qualifications as per the Recruitment Rules for the post of
Supervisor, failing which the vacancies would be filled up by
direct recruitment; and
(ii) The remaining 50% vacancies in the posts of Supervisors
would be filled up by direct recruitment.
…
It is requested that the States/UTs may amend recruitment Rules
for the posts of Supervisors as per the above guidelines on urgent
26
basis and a copy of such Recruitment Rules, after being notified,
may be sent to the Ministry.”
44. This appears to be the reason that on acknowledging their
services on account of an exponential increase in Anganwadi
centres/workers which has been recognized by Government of
India, the opportunities are made available to Anganwadi
workers/helpers being brought into the mainstream and to become
Government employee, with a passage of time.
45. That apart, the Government of Gujarat has also come with a
composite scheme vide its Resolution dated 25th November, 2019
laying down the procedure according to which selections shall be
made through a transparent procedure to be followed laying down
the eligibility criteria (including academic qualification) according to
which the merit list of the candidates who had participated in the
selection process for post of Anganwadi workers/helpers shall be
made and if any participant/applicant is dissatisfied or aggrieved by
the process of selection held by the authorities, can prefer an
appeal to the Committee constituted for the said purpose.
27
46. Further, those who are finally selected and appointed as
Anganwadi workers/helpers shall be governed by the Code of
Conduct and they could also to be terminated, if any misconduct
being committed in discharge of duties or on attaining the age of
superannuation.
47. Thus, the inbuilt transparent procedure has been prescribed
by the State of Gujarat under its Resolution dated 25th November,
2019 laying down the mode of selection along with service
conditions to be regulated while working as Anganwadi
workers/helpers at Anganwadi centres and they shall retire at the
age of superannuation. This controls the effective working of
Anganwadi workers/helpers in various Anganwadi centres.
48. Learned counsel for the State has given much stress on the
honorarium paid to the Anganwadi workers/helpers. Suffice it to
say that the honorarium is basically the quantum of money
offered/conferred to somebody who is especially a professional or a
well honoured person for providing services. It is a voluntary
process. However, what is being paid to Anganwadi
28
workers/helpers with a nomenclature used by the respondents in
projecting the term ‘honorarium’, is in fact the ‘wages’ that has been
paid for the services rendered at the end of the month. It is the
form of emoluments which is being earned on discharge of duty in
accordance with the terms of employment defined under Section
2(s) of the Act 1972.
49. So far as the judgment in Ameerbi (supra) on which the
Division Bench of the High Court has placed reliance is concerned,
it was a case where the question raised for consideration was as to
whether those who are appointed as Anganwadi workers/helpers
are holders of civil posts and are entitled to seek protection of
Article 311 of the Constitution. In that context, it was held by this
Court that they are not holders of civil posts and protection of
Article 311 of the Constitution is not available and that was the
reason for which the application which was filed at the behest of
Anganwadi workers/helpers under Section 15 of the Administrative
Tribunal Act, 1985 was held to be not maintainable.
29
50. In the instant cases, the question which has been raised for
consideration is limited to the extent as to whether those who are
working as Anganwadi workers/helpers are eligible to claim gratuity
under the provisions of the Act, 1972.
51. The judgment of Ameerbi (supra) relied upon by the Division
Bench of the High Court and placed by the respondents before this
Court is of no assistance and has no application so far as the
question raised before us in the instant appeals.
52. Before parting with the order, I would like to observe that the
time has come when the Central Government/State Governments
has to collectively consider as to whether looking to the nature of
work and exponential increase in the Anganwadi centers and to
ensure quality in the delivery of services and community
participation and calling upon Anganwadi workers/helpers to
perform multiple tasks ranging from delivery of vital services to the
effective convergence of various sectoral services, the existing
working conditions of Anganwadi workers/helpers coupled with
lack of job security which albeit results in lack of motivation to
30
serve in disadvantaged areas with limited sensitivity towards the
delivery of services to such underprivileged groups, still being the
backbone of the scheme introduced by ICDS, time has come to find
out modalities in providing better service conditions of the voiceless
commensurate to the nature of job discharged by them.
53. In my considered view, the appeals deserve to succeed and are
accordingly allowed and the impugned judgment dated 8th August,
2017 of the Division Bench of Gujarat High Court being
unsustainable in law is hereby set aside.
………………………J.
(AJAY RASTOGI)
NEW DELHI
APRIL 25, 2022.
31
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3153 OF 2022
[@ SLP (CIVIL) No. 30193 of 2017]
MANIBEN MAGANBHAI BHARIYA … APPELLANT
v.
DISTRICT DEVELOPMENT OFFICER
DAHOD & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO. 3154 OF 2022
[@ SLP (CIVIL) No. 30834 of 2017]
CIVIL APPEAL NO. 3155 OF 2022
[@ SLP (CIVIL) No. 30809 of 2017]
CIVIL APPEAL NO. 3156 OF 2022
[@ SLP (CIVIL) No. 30820 of 2017]
CIVIL APPEAL NO. 3157 OF 2022
[@ SLP (CIVIL) No. 5392 of 2018]
AND
CIVIL APPEAL NO. 3158 OF 2022
[@ SLP (CIVIL) No. 29011 of 2018]
1
J U D G M E N T
ABHAY S. OKA, J.
Leave granted.
1. The issue involved in these appeals is whether
Anganwadi workers and Anganwadi helpers appointed to work
in Anganwadi centres set up under the Integrated Child
Development Scheme (for short “ICDS”) are entitled to gratuity
under the Payment of Gratuity Act, 1972 (for short “the 1972
Act”). The appellants are Anganwadi workers and/or their
organisations. The appeals arise out of writ petitions filed by
the District Development Officer and two other officers for
taking exception to the orders passed by the Controlling
Authority under the 1972 Act. The finding rendered by the
Controlling Authority which was confirmed by the Appellate
Authority was that Anganwadi Workers (AWWs) and
Anganwadi Helpers (AWHs) are entitled to gratuity under the
1972 Act. The Appellate Authority confirmed the said orders.
The learned Single Judge dismissed the writ petitions. In
2
Letters Patent Appeals, a Division Bench of Gujarat High
Court interfered and set aside the orders passed by the
Controlling Authority and the appellate authority under the
1972 Act. The Division Bench held that AWWs and AWHs
could not be said to be employees as per Section 2(e) of the
1972 Act, and the ICDS project cannot be said to be an
industry. It was held that as the remuneration or honorarium
paid to them cannot be treated as wages within the meaning
of Section 2(s) of the 1972 Act, they are disentitled to gratuity.
The Judgment of the Division Bench is the subject matter of
challenge before this Court.
SUBMISSIONS OF THE APPELLANTS
2. Detailed submissions have been made on behalf of the
appellants in support of the appeals. The submissions have
been made by Shri Sanjay Parikh, the learned Senior Counsel,
and Shri P.V. Surendranath, the learned Senior Counsel. The
submissions can be summarised as under:
a) The 1972 Act is a social security welfare legislation. The
1972 Act recognizes that all persons in the society need
3
protection against loss of income due to unemployment
arising out of incapacity to work due to invalidity, old age,
etc.
b) Anganwadi centres set up under ICDS are ‘establishments’
within the meaning of clause (b) of Section 1(3) of the 1972
Act.
c) The concept of ‘establishment’ under the 1972 Act is much
broader than the definition of ‘industry’ under Section 2(j)
of the Industrial Disputes Act, 1947 (for short, “the 1947
Act”).
d) Relying upon a decision of this Court in the case of
Bangalore Water Supply and Sewerage Board v. A.
Rajappa and others11, it was submitted that as there is a
systematic and organized activity carried out in Anganwadi
centres with the cooperation of the employer and employees
for rendering services, Anganwadi centres will have to be
treated as ‘industry.’
111978 (2) SCC 213
4
e) In the alternative, it was submitted that even if clause (b) of
Section 1(3) of the 1972 Act does not apply to Anganwadi
centres, clause (c) of Section 1(3) will apply as the
Government of India has exercised power under clause (c)
of Section 1(3) by notifying educational institutions as a
class of establishment to which the 1972 Act will apply.
Under the ICDS scheme, preschool nonformal education
is provided in Anganwadi centres to children in the age
group of 3 to 6. Even teaching about nutrition and health
is imparted in Anganwadi centres. Hence, the Anganwadi
centres are educational institutions.
f) Placing reliance on a decision of this Court in the case of
Ahmedabad Pvt. Primary Teachers’ Assn. v.
Administrative Officer and others12, it was submitted
that as per the notification mentioned above, teaching as
well as nonteaching staff of educational institutions has
been covered. It is submitted that the effect of the said
122004 (1) SCC 755
5
decision is that the 1972 Act will even cover employees
other than teachers in educational institutions.
g) While deciding the Ahmedabad Primary Teachers’
Association case, this Court relied upon the definition of
‘employee’ in the 1972 Act, which was restricted by the
words “to do any skilled, semiskilled or unskilled…...”. By
Act No. 47 of 2009, these words were deleted, and
therefore, the definition of ‘employee’ under Section 2(e) of
the 1972 Act has become very wide.
h) This Court in the case of State of Karnataka and others v.
Ameerbi and others13 held that AWWs and AWHs are not
the employees of Anganwadi centres or the ICDS scheme.
In the said case, the dispute was confined to an issue of
whether AWWs can be said to be holding civil posts to
attract the jurisdiction of the Karnataka State
Administrative Tribunal established under Section 15 of the
Administrative Tribunals Act, 1985. Hence, the said
decision is not relevant in this case.
132007 (11) SCC 681
6
i) Merely because the monthly remuneration paid to AWWs is
styled as honorarium, it cannot be conclusive. Under
Section 2(s) of the 1972 Act, the definition of ‘wages’ is very
wide to include both the categories. AWWs and AWHs are
doing fulltime jobs involving multiple duties concerning
women and children. Reliance was placed on a decision of
this Court in the case of Jaya Bachchan v. Union of India
and others14
.
j) Reliance was placed on definitions of ‘establishment’ and
‘industrial establishment’ under various statutes. On this
behalf, a reference was made to a decision of this Court in
the case of State of Punjab v. Labour Court, Jullundur
and others15
.
k) The submission is that the provisions of the 1972 Act apply
to AWWs and AWHs.
SUBMISSIONS OF THE RESPONDENTS
142006 (5) SCC 266
151980 (1) SCC 4
7
3. Ms. Aastha Mehta, learned counsel appearing on behalf
of the State of Gujarat submitted that ICDS is a Central
Government scheme which the State Governments are
implementing. Her submission is that AWWs and AWHs are
appointed from amongst local inhabitants. Usually, women
who are wellversed in cooking, processing food, cleaning,
etc., are appointed on a yearly basis. They are being paid an
honorarium and not wages. It is pointed out that the
honorarium payable to AWWs and AWHs has been enhanced
in the year 2020. She submitted that though the share of the
Central Government in the honorarium has not been
increased, under the Government Resolution dated 21st March
2020, the State Government has increased its contribution,
and now the remuneration of AWWs is Rs.7,800/ per month.
She submitted that a number of other benefits have been
made available by the State Government to AWWs, set out in
the counter affidavit. It is pointed out by learned counsel that
there are 53,029 Anganwadi centres established under the
ICDS in the State of Gujarat, and presently there are about
8
51,560 AWWs and 48,690 AWHs in the entire State. If
gratuity is held to be payable to them, there will be a
substantial financial burden on the State exchequer as the
amount payable towards gratuity will be more than Rs.25
crores.
4. Ms. Aishwarya Bhati, the learned Addl. Solicitor General
of India submitted that while the Government of India
acknowledges the important role of Anganwadi centres in
implementing the ICDS scheme and consequently the role of
AWWs and AWHs, the provisions of the 1972 Act do not apply
to them. She pointed out that clause (b) of Section 1(3) refers
to ‘establishments’ within the meaning of any law for the time
being in force in relation to shops and establishments in a
State and therefore, in this case, the provisions of Gujarat
Shops and Establishments Act, 1948 (for short “the Gujarat
Act”) as applicable to the State of Gujarat will have to be
considered. Referring to the definitions of ‘commercial
establishments’ and ‘establishments’ under the Gujarat Act,
she submitted that ICDS is not an establishment as it does
9
not carry on any business, trade or profession or any activity
connected, incidental or ancillary thereto. She submitted that
ICDS is a welfare scheme designed and implemented to
benefit children, pregnant women, and lactating mothers.
Relying upon a decision of this Court in the case of Bangalore
Turf Club Limited v. Regional Director, Employees’ State
Insurance Corporation16
, she submitted that the term
‘establishment’ used in the 1972 Act presupposes an element
of commercial activity. She submitted that what is being paid
to AWWs is an honorarium which cannot be described as
wages. In support of the said submission, she relied upon a
decision of the Delhi High Court in the case of Akhil Bhartiya
Anganwadi Kamgar Union (Regd.) v. Union of India & Ors.
She also pointed out that the decision of this Court in the
case of Bangalore Water Supply and Sewerage Board (supra)
has been referred to a larger Bench. She pointed out that as
AWWs and AWHs render valuable assistance, there is
insurance coverage provided to them by the Central
162014 (9) SCC 657
10
Government as set out in the counter affidavit. Apart from
insurance benefits, other benefits are being extended to
AWWs.
REJOINDER OF THE APPELLANTS
5. The learned counsel appearing for appellants pointed out
that Anganwadi centres are performing the statutory duty of
implementing provisions of Sections 4, 5 and 6 of the National
Food Security Act, 2013 (for short “the Act of 2013”). By
pointing out the duties of AWWs and AWHs, which are placed
on record along with IA No. 161608 of 2021, it was pointed
out that their responsibilities extend not only to running
Anganwadi centres but to running preprimary schools in
Anganwadis. Apart from that, they are obligated to make
home visits for various purposes. It is certain that they are
doing fulltime jobs and are discharging onerous
responsibilities.
ROLE OF ANGANWADI WORKERS AND HELPERS
11
6. I have given careful consideration to the submissions. The
Government of India launched ICDS on 2nd October 1975. Under
ICDS, six services are being provided:
(i) supplementary nutrition,
(ii) preschool nonformal education,
(iii) nutrition and health education,
(iv) immunization,
(v) health checkup and
(vi) referral services.
The cost of running ICDS and Anganwadi centres is being shared
by the Government of India and the State Governments.
7. The 2013 Act came into force on 5th July 2013. One of
the objectives of enacting the 2013 Act was to give effect to
Article 47 of the Constitution of India, which is a part of the
Directive Principles of State Policy. Article 47 reads thus:
“ARTICLE 47: DUTY OF THE STATE TO
RAISE THE LEVEL OF NUTRITION AND THE
STANDARD OF LIVING AND TO IMPROVE
PUBLIC HEALTH
12
The State shall regard the raising of the level of
nutrition and the standard of living of its people
and the improvement of public health as among
its primary duties and, in particular, the State
shall endeavour to bring about prohibition of
the consumption except for medicinal purpose
of intoxicating drinks and of drugs which are
injurious to health.”
8. It is the duty of the State to improve the level of nutrition
which is one of the best methods to improve public health.
Apart from Article 47, India is a signatory to the Universal
Declaration of Human Rights and the International
Covenant on Economic, Social, and Cultural Rights. The
said convention casts responsibilities on all States to
recognize the right of citizens to adequate food. As provided
in the Statement of Objects and Reasons of the 2013 Act,
one of its objectives is to improve the nutritional status of
women and children. The object of the 2013 Act was to
bring about a shift in addressing the issue of food security.
The approach was changed from the welfare approach to
the rightsbased approach. The role of Anganwadi centres
13
finds a place in paragraph 7 of the Statement of Objects and
Reasons of the 2013 Act.
9. Anganwadi centres were statutorily recognised under the
2013 Act. Subsection (1) of Section 2 of 2013 Act reads
thus:
“(1) “anganwadi" means a child care and
development centre set up under the Integrated
Child Development Services Scheme of the
Central Government to render services covered
under section 4, clause (a) of subsection (1) of
section 5 and section 6.”
10. Anganwadi centres have been entrusted with a very
vital and significant role in implementing Sections 4 to 6 of
the 2013 Act, which read thus:
“4. Nutritional support to pregnant women
and lactating mothers. Subject to such
schemes as may be framed by the Central
Government, every pregnant woman and
lactating mother shall be entitled to—
(a) meal, free of charge, during pregnancy and
six months after the child birth, through the
local anganwadi, so as to meet the nutritional
standards specified in Schedule II; and
(b) maternity benefit of not less than rupees six
thousand, in such instalments as may be
prescribed by the Central Government:
14
Provided that all pregnant women and lactating
mothers in regular employment with the Central
Government or State Governments or Public
Sector Undertakings or those who are in receipt
of similar benefits under any law for the time
being in force shall not be entitled to benefits
specified in clause (b).
5.Nutritional support to children(1) Subject to
the provisions contained in clause (b), every
child up to the age of fourteen years shall
have the following entitlements for his
nutritional needs, namely:—
(a) in the case of children in the age group of
six months to six years, age appropriate meal,
free of charge, through the local anganwadi so
as to meet the nutritional standards specified
in Schedule II:
Provided that for children below the age of six
months, exclusive breast feeding shall be
promoted;
(b) in the case of children, up to class VIII or
within the age group of six to fourteen years,
whichever is applicable, one midday meal, free of
charge, every day, except on school holidays, in
all schools run by local bodies, Government and
Government aided schools, so as to meet the
nutritional standards specified in Schedule II.
(2) Every school, referred to in clause (b) of
subsection (1), and anganwadi shall have
facilities for cooking meals, drinking water
and sanitation:
Provided that in urban areas facilities of
centralised kitchens for cooking meals may be
15
used, wherever required, as per the guidelines
issued by the Central Government.
6. Prevention and management of child
malnutrition.The State Government shall,
through the local anganwadi, identify and
provide meals, free of charge, to children who
suffer from malnutrition, so as to meet the
nutritional standards specified in Schedule II.”
(emphasis added)
11. The provisions mentioned above lay down the
entitlements of pregnant women, lactating mothers, and
children in the age group of 6 months to 6 years. In
addition, the children who suffer from malnutrition are
entitled to the benefit of free meals through Anganwadi
centres. These entitlements confer corresponding rights on
the said beneficiaries. The benefits referred to in Sections
4,5 and 6 of the 2013 Act are provided through Anganwadi
centres as set out in the Supplementary Nutrition (under
the Integrated Child Development Services Scheme) Rules,
2017 (for short “The Supplementary Nutrition Rules”). Rules
3 and 4 of the Supplementary Nutrition Rules are relevant
which read thus:
16
“3. Nature of entitlements. (1) The
entitlements referred to in sections 4, 5 and
section 6 of the Act shall be provided under the
Supplementary Nutrition Programme of
Anganwadi Services (Integrated Child
Development Services Scheme) of the Central
Government to every pregnant woman and
lactating mother till six months after childbirth,
and every child in the age group of six months to
six years (including those suffering from
malnutrition).
(2) The Supplementary Nutrition under the
Anganwadi Services (Integrated Child
Development Services) is primarily designed to
bridge the gap between the Recommended
Dietary Allowance and the Average Daily Intake.
4. Place of serving meal. (1) The Anganwadi
Services (Integrated Child Development Services)
is a selfselecting scheme and the entitlements,
as mentioned in clause (a) of section 4, clause
(a) of subsection (1) of section 5 and section 6
shall be available to those who enroll
themselves and visit the nearest anganwadi
centre during its working hours, as notified by
the State Government or the Union territory
Administration from time to time.
(2) The meal shall be served at the nearest
anganwadi centres where the beneficiary is
registered or enrolled.”
(emphasis added)
17
12. Thus, Anganwadi centres have been entrusted with the
onerous responsibility of implementing some of the most important
and innovative provisions of the 2013 Act. It can be said that
Anganwadi centres perform a pivotal role in discharging the
statutory obligation of the State to provide nutritional support to
pregnant women, lactating mothers and children in the age group of
6 months to 6 years. A free meal is provided to pregnant mothers
during pregnancy and 6 months after childbirth through the
Anganwadi centres. In the case of children in the age group of 6
months to 6 years, an ageappropriate free meal is to be provided in
Anganwadi centres. In addition, the important duty of providing free
meals to the children who suffer from malnutrition has been
entrusted to Anganwadi centres. The free meals to be provided
through Anganwadi centres must satisfy the nutritional
requirements and standards specified in Schedule II of the 2013
Act. Therefore, under subsection (2) of Section 5, there is a
provision that every Anganwadi centre shall have a proper facility of
cooking meals, drinking water and sanitation. Another crucial
statutory duty assigned to local Anganwadi centres is to identify
18
children who suffer from malnutrition so that free meals can be
provided to such identified children. The AWWs and AWHs
constitute the backbone of Anganwadi centres and therefore, this
onerous responsibility of extending benefits under the 2013 Act to
the beneficiaries is on them. Anganwadi centres are responsible for
ensuring the healthy growth of the children in the age group of 6
months to 6 years and the children who suffer from malnutrition.
13. Now, coming to the State of Gujarat, the Government
Resolution dated 25th November 2019 (Annexure A1 of IA no.
161608 of 2021) lays down exhaustive provisions regarding
selection criteria, duties, disciplinary action, rules, etc. in respect of
AWWs and AWHs. In fact, by the said Resolution, the State
Government has framed the Anganwadi Worker/Helper (Selection
Criteria, Honorary Service, Review and Discipline) Rules (for short
“the said Rules”). Duties of AWWs and AWHs have been laid down
in Appendix1 to the Government Resolution. Very important
functions and responsibilities have been assigned to AWWs in
Appendix1. We are reproducing some of the onerous duties and
functions assigned to AWWs :
19
(a) The AWWs shall carry out the survey within their area
of duty and shall update the record regularly by taking
note of the occurrence of new events;
(b) Apart from providing health and nutrition services to
the children within their jurisdiction, AWWs are under
a duty to monitor the growthdevelopment of all
children. They are also under an obligation to identify
severely malnourished children and children in need of
medical attendance;
(c) AWWs have a duty of monitoring the growth of the
children in the age group of 0 to 3 years, including
monitoring their weight. They are responsible for
maintaining a growth chart for measuring the child’s
individual growth. They must identify children who are
significantly underweight and take special care of such
children;
(d) To make four followup visits every fortnight to the
children rehabilitated at Children Malnutrition
Treatment Centres/Nutrition Rehabilitation Centres
20
and ensure that the said children get supplementary
food at Anganwadi centres;
(e) AWWs are also required to cater to vaccination services
with the help of Aasha workers. They are also dutybound to undertake activities relating to health,
nutrition, and hygiene education;
(f) They are responsible for following safety and hygiene
norms in respect of food materials in Anganwadi
centres;
(g) AWWs must make home visits at least three times a
week and meet children below the age of 3 years,
pregnant women, and lactating mothers;
(h) With a view to ensuring public participation in the
activities of Anganwadis, they are required to celebrate
various special days on all four Tuesdays;
(i) It is the duty of the AWWs to identify handicapped
children or children with slow growth and provide
referral services to them by referring them for health
screening;
21
(j) AWWs are required to conduct preprimary education
activities for the children of the age group of 3 to 6
years following preschool timetable and using preschool kit;
(k) Appendix1 provides for AWWs attending meetings of
various committees;
(l) The AWWs are required to look after the
implementation and coordination of various other
services under various Government schemes;
(m) Their duties are to carry out Aadhar registration of the
children attached to Anganwadis; and
(n) They are required to maintain several reports, registers,
records relating to beneficiaries, deaths of children,
registration of births and deaths, and submit monthly
or annual reports.
14. The duties and functions of AWHs are also very onerous.
Some of the important duties are as under:
● To report half an hour before the working hours of
Anganwadi centres and clean Anganwadi centres every
22
day. To maintain a neat and clean environment within
the Anganwadi centres;
● To cook and serve healthy food to the beneficiaries;
● To bring children to Anganwadi and to drop them at
their houses;
● To clean the utensils used for cooking and serving;
● To maintain personal hygiene of children;
● To help AWWs in public relations and public
participation works; and
● To perform all duties relating to ICDS as may be
assigned by the Child Development Program Officer
and the State Office of ICDS.
15. One of the important functions of Anganwadi centres is to
conduct preprimary education activities for the children of the age
group of 3 to 6 years by following the preschool timetable and by
using the preschool kit. That is the specific provision in the
Government Resolution dated 25th November 2019. It is also
provided therein that the Anganwadi children admitted to primary
schools shall be issued a certificate of preprimary education signed
23
by the Child Development Programme Officer. On this aspect,
Section 11 of the Rights of Children to Free and Compulsory
Education Act, 2009 (for short, ‘the RTE Act’) is relevant. Section
11 reads thus:
“11. Appropriate Government to provide for
preschool education. —With a view to prepare
children above the age of three years for
elementary education and to provide early
childhood care and education for all children
until they complete the age of six years, the
appropriate Government may make necessary
arrangement for providing free preschool
education for such children.”
The appropriate Government, in this case, is the Government of
Gujarat. For giving effect to Section 11 of the RTE Act, a provision
has been made by the State Government to conduct preprimary
schools for children above the age of three years in the Anganwadi
centres. Moreover, as specifically laid down in the aforesaid
Government Resolution, it is the duty of AWWs to provide a
pleasant educational environment at Anganwadi centres. It is also
the duty of AWWs to assess the growth of children and make entries
in the booklet titled “My Growth Story”. Thus, Anganwadi centres
are also running preprimary schools for children in the age group
24
of 3 to 6 years. The educational activity of running preschool is an
integral part of Anganwadi centres. AWWs and AWHs who are
managing the Anganwadi centres have a duty to look after preprimary schools as well. We may also note here that on 8th March
2018, the Government of India has launched the National Nutrition
Mission by the name “The Prime Minister’s Overarching Scheme for
Holistic Nourishment”. The responsibility of implementing a part of
the scheme is of the Anganwadi centres. Under the National
Education Policy, 2020, there is a proposal to make available Early
Childhood Care and Education (ECCE) to children having socioeconomic disadvantaged backgrounds. It is provided that ECCE will
be extended through Anganwadi centres.
THE DECISION IN THE CASE OF AMEERBI
16. In the case of Ameerbi (supra), this Court dealt with the issue
whether AWWs and AWHs were holding civil posts. The issue was
whether the original applications filed by AWWs before the State
Tribunal established under the Administrative Tribunals Act, 1985
were maintainable. This Court held that the posts of AWWs were
25
not statutory posts and the same have been created in terms of
ICDS. Therefore, there was no relationship of employer and
employee between the State Government and AWWs. It was held
that the AWWs do not carry on any function of the State. It was
observed that no Recruitment Rules have been framed for
appointing AWWs. Much water has flown after the decision in the
case of Ameerbi (supra) was rendered in the year 2007. When the
said decision was rendered by this Court, the 2013 Act was not on
the statute book. As noted earlier, the Anganwadi centres
established under ICDS have been given statutory status under the
2013 Act. Moreover, under Sections 4, 5 and 6 of the 2013 Act, the
Anganwadi centres perform statutory duties under the 2013 Act. I
have already referred to the Government Resolution of the
Government of Gujarat dated 25th November 2019 in extenso.
17. The Resolution incorporates the said Rules which lay down
selection criteria, educational qualifications, the process of
selection, etc. of AWWs and AWHs. Under the said Rules, a detailed
process of making appointments of AWWs and AWHs has been
incorporated. It also incorporates the marking system for the
26
selection of AWWs and AWHs. The said Rules provide that the
AWWs and AWHs will continue in the service till the age of 58
years. Even the minimum and maximum age of the candidates for
participating in the process of recruitment has been laid down.
There are provisions made for the termination of services of AWWs
and AWHs. Though the said rules refer to their service as honorary
service, the use of the word “honorary” is not determinative of the
status of AWWs and AWHs.
18. In view of the provisions of the 2013 Act and Section 11 of the
RTE Act, Anganwadi centres also perform statutory duties.
Therefore, even AWWs and AWHs perform statutory duties under
the said enactments. The Anganwadi centres have, thus, become
an extended arm of the Government in view of the enactment of the
2013 Act and the Rules framed by the Government of Gujarat. The
Anganwadi centres have been established to give effect to the
obligations of the State defined under Article 47 of the Constitution.
It can be safely said that the posts of AWWs and AWHs are
statutory posts.
27
19. As far as the State of Gujarat is concerned, the appointments
of AWWs and AWHs are governed by the said Rules. In view of the
2013 Act, AWWs and AWHs are no longer a part of any temporary
scheme of ICDS. It cannot be said that the employment of AWWs
and AWHs has temporary status. In view of the changes brought
about by the 2013 Act and the aforesaid Rules framed by the
Government of Gujarat, the law laid down by this Court in the case
of Ameerbi will not detain this Court any further from deciding the
issue. For the reasons stated above, the decision in the case of
Ameerbi will not have any bearing on the issue involved in these
appeals.
PLIGHT OF AWWs AND AWHs
20. AWWs and AWHs have been assigned allpervasive duties,
which include identification of the beneficiaries, cooking nutritious
food, serving healthy food to the beneficiaries, conducting preschool for the children of the age group of 3 to 6 years, and making
frequent home visits for various reasons. Implementation of very
important and innovative provisions relating to children, pregnant
28
women as well as lactating mothers under the 2013 Act has been
entrusted to them. It is thus impossible to accept the contention
that the job assigned to AWWs and AWHs is a parttime job. The
Government Resolution dated 25th November 2019, which
prescribes duties of AWWs and AWHs, does not lay down that their
job is a parttime job. Considering the nature of duties specified
thereunder, it is fulltime employment. In the State of Gujarat,
AWWs are being paid monthly remuneration of only Rs.7,800/ and
AWHs are being paid monthly remuneration of only Rs.3,950/.
AWWs working in miniAnganwadi centres are being paid a sum of
Rs.4,400/ per month. The important tasks of providing food
security to children in the age group of 6 months to 6 years,
pregnant women as well as lactating mothers have been assigned to
them. In addition, there is a duty to render preschool education.
For all this, they are being paid very meagre remuneration and
paltry benefits under an insurance scheme of the Central
Government. It is high time that the Central Government and State
Governments take serious note of the plight of AWWs and AWHs
who are expected to render such important services to the society.
29
APPLICABILITY OF THE PROVISIONS OF THE 1972 ACT TO
AWWs AND AWHs
21. Now, I turn to the provisions of the 1972 Act. Subsections (3)
and (3A) of the 1972 Act deal with the applicability of its provisions.
Subsections (3) and (3A) of Section 1 reads thus:
“(3) It shall apply to
(a) every factory, mine, oilfield, plantation, port
and railway company;
(b) every shop or establishment within the
meaning of any law for the time being in force
in relation to shops and establishments in a
State, in which ten or more persons are
employed, or were employed, on any day of
the preceding twelve months;
(c) such other establishments or class of
establishments, in which ten or more employees
are employed, or were employed, on any day of
the preceding twelve months, as the Central
Government may, by notification, specify in this
behalf.
[(3A) A shop or establishment to which this Act
has become applicable shall continue to be
governed by this Act, notwithstanding that the
number of persons employed therein at any time
after it has become so applicable falls below ten.]”
(emphasis added)
30
22. Reliance has been placed by the appellants on clause (b) of
Section 1(3) and in the alternative, on clause (c). Clause (b) of
Section 1(3) applies to every shop or establishment within the
meaning of any law for the time being in force in relation to the
shops and establishments in a State in which ten or more persons
are employed or were employed on any day of the preceding twelve
months.
23. Though, during the course of submissions, reliance was first
placed on the Gujarat Act as applicable to the State of Gujarat, by
the Gujarat Shops and Establishments (Regulation of Employment
and Conditions of Service) Act, 2019, the Gujarat Act has been
repealed.
24. Now, the question is whether clause (b) of Section 1(3) of the
1972 Act will apply. This Court in the case of the Labour Court,
Jullunder (supra) has given a wide interpretation to clause (b). In
paragraph 3 of the said decision, this Court held thus:
“3. In this appeal, the learned Additional Solicitor
General contends on behalf of the appellant that
the Payment of Gratuity Act, 1972 cannot be
invoked by the respondents because the Project
31
does not fall within the scope of Section 1(3) of that
Act. Section 1(3) provides that the Act will apply to:
(a) every factory, mine, oilfield, plantation, port
and railway company;
(b) every shop or establishment within the
meaning of any law for the time being in force in
relation to shops and establishments in a State, in
which ten or more persons are employed, or were
employed, on any day of the preceding twelve
months;
(c) such other establishments or class of
establishments, in which ten or more employees are
employed, or were employed, on any day of the
preceding twelve months, as the Central
Government may, by notification, specify in this
behalf.”
According to the parties, it is clause (b) alone which
needs to be considered for deciding whether the Act
applies to the Project. The Labour Court has held
that the Project is an establishment within the
meaning of the Payment of Wages Act, Section 2(ii)
(g) of which defines an “industrial establishment” to
mean any “establishment in which any work
relating to the construction development or
maintenance of buildings, roads, bridges or canals,
relating to operations connected with navigation,
irrigation or the supply of water, or relating to the
generation, transmission and distribution of
electricity or any other form of power is being
carried on”. It is urged for the appellant that the
Payment of Wages Act is not an enactment
contemplated by Section 1(3)(b) of the Payment
of Gratuity Act. The Payment of Wages Act, it is
pointed out, is a Central enactment and Section
1(3)(b), it is said, refers to a law enacted by the
State Legislature. We are unable to accept the
contention. Section 1(3)(b) speaks of “any law
32
for the time being in force in relation to shops
and establishments in a State”. There can be no
dispute that the Payment of Wages Act is in
force in the State of Punjab. Then, it is
submitted, the Payment of Wages Act is not a
law in relation to “shops and establishments”.
As to that, the Payment of Wages Act is a
statute which, while it may not relate to shops,
relates to a class of establishments, that is to
say, industrial establishments. But it is
contended, the law referred to under Section
1(3)(b) must be a law which relates to both shops
and establishments, such as the Punjab Shops
and Commercial Establishments Act, 1958. It is
difficult to accept that contention because there
is no warrant for so limiting the meaning of the
expression “law” in Section 1(3)(b). The
expression is comprehensive in its scope, and
can mean a law in relation to shops as well as,
separately, a law in relation to establishments,
or a law in relation to shops and commercial
establishments and a law in relation to noncommercial establishments. Had Section 1(3)(b)
intended to refer to a single enactment, surely
the appellant would have been able to point to
such a statute, that is to say, a statute relating
to shops and establishments, both commercial
and noncommercial. The Punjab Shops and
Commercial Establishments Act does not relate
to all kinds of establishments. Besides shops, it
relates to commercial establishments alone. Had
the intention of Parliament been, when enacting
Section 1(3)(b), to refer to a law relating to
commercial establishments, it would not have
left the expression “establishments”
33
unqualified. We have carefully examined the
various provisions of the Payment of Gratuity
Act, and we are unable to discern any reason for
giving the limited meaning to Section 1(3)(b)
urged before us on behalf of the appellant.
Section 1(3)(b) applies to every establishment
within the meaning of any law for the time
being in force in relation to establishments in a
State. Such an establishment would include an
industrial establishment within the meaning of
Section 2(ii)(g) of the Payment of Wages Act.
Accordingly, we are of opinion that the Payment of
Gratuity Act applies to an establishment in which
any work relating to the construction, development
or maintenance of buildings, roads, bridges or
canals, or relating to operations connected with
navigation, irrigation or the supply of water, or
relating to the generation, transmission and
distribution of electricity or any other form of power
is being carried on. The Hydel Upper Bari Doab
Construction Project is such an establishment, and
the Payment of Gratuity Act applies to it.”
(emphasis supplied)
Hence, ‘establishments’ contemplated by clause (b) can be
establishments within the meaning of any law for the time being in
force in a State in relation to establishments. Therefore, I have
examined the laws in relation to establishments which are in force
in the State of Gujarat.
25. I may refer to the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970 (for short “the Contract Labour
34
Act”). Establishments have been defined in clause (e) of Section 2
which reads thus :
“(e) "establishment" means
(i) any office or department of the Government or a
local authority, or
(ii) any place where any industries, trade, business,
manufacture or occupation is carried on.”
The Contract Labour Act is applicable to establishments as
provided in subsection (4)(a) of Section 1. In view of subsection (2)
of Section 1, the Contract Labour Act is applicable to the State of
Gujarat. Therefore, it is legislation in relation to establishments in
the State of Gujarat. As stated above, under the said Rules, now
the selection and appointments of AWWs and AWHs are being made
by the Government of Gujarat. An officer of the said Government is
empowered to issue an order of termination of employment of
AWWs and AWHs. As stated earlier, Anganwadi centres have
become an extended arm of the Government. Now, it operates as
an establishment or a wing of the Government. The remuneration to
AWWs and AWHs is paid by the State Government. However, the
State Government gets contributions from the Central Government.
Moreover, it can always be said that occupation is carried out in the
35
establishments of Anganwadi centres. Hence, Anganwadi Centre is
an establishment within the meaning of clause (e) of Section 2 of
the Contract Labour Act.
26. The Code of Wages, 2019 is an enactment that received the
assent of the President on 8th August 2019. However, only a few
provisions therein have been brought into force so far. Clause (m)
of Section 2 thereof defines establishment which means any place
where any industry, trade, business, manufacture, or occupation is
carried out and it includes the Government establishments. There
is a similar definition of establishment under clause 29 of Section 2
of the Code on Social Security, 2020 which received the assent of
the President on 28th September 2020. These provisions show the
legislative intent to include the various Government establishments
in the category of establishments in the welfare statutes.
27. It is not the case of the State Government that every
Anganwadi centre is a separate entity. Anganwadi centres and Mini
Anganwadi centres are a part of the Anganwadi establishment of
the State Government. The Anganwadi centres have been
36
employing ten or more AWWs and AWHs in the State. Therefore, I
have no manner of doubt that Anganwadi centres are
establishments contemplated by clause (b) of subsection (3) of
Section 1 of the 1972 Act. The learned Additional Solicitor General
relied upon a decision of this Court in Bangalore Turf Club (supra).
It was a case arising out of the Employees’ State Insurance Act,
1948. The said Act does not define “establishment”. The decision
has no relevance in this case.
28. Clauses (e), (f), and (s) of Section 2 of the 1972 Act which
define ‘employee’, ‘employer’ and ‘wages’ are relevant. The same
read thus:
“(e) “employee” means any person (other than an
apprentice) who is employed for wages, whether the
terms of such employment are express or implied, in
any kind of work, manual or otherwise, in or in
connection with the work of a factory, mine, oilfield,
plantation, port, railway company, shop or other
establishment to which this Act applies, but does not
include any such person who holds a post under the
Central Government or a State Government and is
governed by any other Act or by any rules providing
for payment of gratuity;
(f) “employer” means, in relation to any
establishment, factory, mine, oilfield, plantation, port,
railway company or shop:
37
(i) belonging to, or under the control of, the Central
Government or a State Government, a person or
authority appointed by the appropriate Government
for the supervision and control of employees, or
where no person or authority has been so appointed,
the head of the Ministry or the Department
concerned,
(ii) belonging to, or under the control of, any local
authority, the person appointed by such authority for
the supervision and control of employees or where no
person has been so appointed, the chief executive
officer of the local authority.
(iii) in any other case, the person, who, or the
authority which, has the ultimate control over the
affairs of the establishment, factory, mine, oilfield,
plantation, port, railway company or shop, and where
the said affairs are entrusted to any other person,
whether called a manager, or managing director or by
any other name, such person;
(s) “wages” means all emoluments which are earned
by an employee while on duty or on leave in
accordance with the terms and conditions of his
employment and which are paid or are payable to him
in cash and includes dearness allowance but does not
include any bonus, commission, house rent
allowance, overtime wages and any other allowance.”
29. The definition of ‘wages’ is very wide. It means all emoluments
which are earned by an employee on duty. Thus, the honorarium
paid to AWWs and AWHs will also be covered by the definition of
38
wages. As AWWs and AWHs are employed by the State Government
for wages in the establishments to which the 1972 Act applies, the
AWWs and AWHs are employees within the meaning of the 1972
Act. In view of the said Rules of the Gujarat Government, the
Anganwadi centres are not under the control of the Central
Government. Therefore, the State Government will be an
appropriate Government within the meaning of clause (a) of Section
2 of the 1972 Act. Accordingly, a person or authority appointed by
the appropriate Government for the supervision and control of
AWWs and AWHs will be the employer within the meaning of clause
(f) of Section 2.
30. I may add here that the Government of India by a notification
dated 3rd April 1997 has notified educational institutions as
establishments under clause (c) of subsection (3) of Section 1 of the
1972 Act. In the Anganwadi centres, the activity of running a preschool for the children in the age group of 3 to 6 years is being
conducted. It is purely an educational activity. The job of teaching
is done by AWWs and AWHs. The State Government is running pre39
schools in Anganwadi centres in accordance with Section 11 of the
RTE Act.
31. For the reasons recorded above, I have no manner of doubt
that the 1972 Act will apply to Anganwadi centres and in turn to
AWWs and AWHs. In the impugned Judgment, the Division Bench
was swayed by the view taken by this Court in the case of Ameerbi
which was followed by the Delhi High Court in the case of Akhil
Bhartiya Anganwadi Kamgar Union (Regd.) (supra). These
decisions, for the reasons recorded earlier, have no bearing on the
issue involved in these appeals. The learned Single Judge was right
in holding that the 1972 Act was applicable to AWWs and AWHs.
The Controlling Authority has granted simple interest at the rate of
10% on the overdue gratuity amounts. All eligible AWWs and AWHs
shall be entitled to the benefit of interest.
32. Hence, I allow the appeals and set aside the impugned
Judgment dated 8th August 2017 of the Division Bench of Gujarat
High Court and restore the Judgment of the learned Single Judge
dated 6th June 2016 in Special Civil Application no. 1219 of 2016
40
and other connected cases by holding that the provisions of the
1972 Act apply to AWWs and AWHs working in Anganwadi centres.
Within a period of three months from today, necessary steps shall
be taken by the concerned authorities in the State of Gujarat under
the 1972 Act to extend benefits of the said Act to the eligible AWWs
and AWHs. We direct that all eligible AWWs and AWHs shall be
entitled to simple interest @ 10% per annum from the date specified
under subsection 3A of Section 7 of the 1972 Act.
…………..…………………J.
(ABHAY S. OKA)
New Delhi;
April 25, 2022.
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