9911796707
TMI Blog2022 (5) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - Appeal allowed. As per Abhay Shreeniwas Oka, J. Whether Anganwadi workers and Anganwadi helpers appointed to work in Anganwadi centres set up under the Integrated Child Development Scheme (ICDS) are entitled to gratuity under the Payment of Gratuity Act, 1972? - HELD THAT:- 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 age-appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 - 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. There exists no manner of doubt that the 1972 Act will apply to Anganwadi centres and in turn to AWWs and AWHs - 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributions/grants from the Government. At the same time, we have major non-contributory 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. 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 legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ............... (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 v. Shri N. Sundara Money : 1976(1) SCC 822 followed with Bangalore Water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 21-31 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. 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 Covid-19 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 successfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 well-being and development. A lack of adequate nutrition and proper care has irreversible consequences. Poor nutrition has a negative impact on 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 pre-school education for such children . 28. Health and nutritio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal role is being played by Anganwadi workers and Anganwadi helpers, by taking care of children in the age group 0-6 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. 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 non-formal 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 0-6 years, pregnant women and lactating mothers. 35. The objectives of the Scheme are: to improve the nutritional and health status of children in the age-group 0-6 years; to lay the foundation for proper psychological, physical and soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts 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 than the minimum wages) on the specious ground that they are part-time 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. 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 in-built 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isadvantaged 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. Abhay Shreeniwas Oka, J. Leave granted. 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 Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, pre-school non-formal 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 Ors. : 2004 (1) SCC 755, it was submitted that as per the notification mentioned above, teaching as well as non-teaching staff of educational institutions has been covered. It is submitted that the effect of the said 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, semi-skilled or unskilled...... . By Act No. 47 of 2009, these words were deleted, and therefore, the definition of 'employee' Under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established under the ICDS in the State of Gujarat, and presently there are about 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 not carry on any business, tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub-section (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 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... centres must satisfy the nutritional requirements and standards specified in Schedule II of the 2013 Act. Therefore, Under Sub-section (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 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 A-1 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, Honor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 Anganwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 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 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 Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons. Implementation of very important and innovative provisions relating to children, pregnant 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 part-time job. The Government Resolution dated 25th November 2019, which prescribes duties of AWWs and AWHs, does not lay down that their job is a part-time job. Considering the nature of duties specified thereunder, it is full-time 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 mini-Anganwadi 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 pre-school 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 not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act ). Establishments have been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishments contemplated by Clause (b) of Sub-section (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: (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 pre-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 Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
