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TMI Blog2022 (5) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 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 non-contributory. The contributory laws are those which provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shments 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 Sub-section (2) of Section 4 of the Act and withholding of gratuity is not permissible under any circumstances other than those enumerated Under Sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. 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 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 (2005-06) 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 develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 21-A 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 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 childho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urtured children with full opportunities for growth and development in a safe and protective environment. 32. The mission and mandate of the scheme of ICDS is to promote social and economic empowerment of women through cross-cutting 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 cross-cutting 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 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 vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 non-formal 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the posts of Supervisors as per the above guidelines on urgent 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. 46. Further, those who are finally sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. : 1978 (2) SCC 213, 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.' 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and AWHs are appointed from amongst local inhabitants. Usually, women who are well-versed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to running Anganwadi centres but to running pre-primary schools in Anganwadis. Apart from that, they are obligated to make home visits for various purposes. It is certain that they are doing full-time jobs and are discharging onerous responsibilities. ROLE OF ANGANWADI WORKERS AND HELPERS 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) pre-school non-formal education, (iii) nutrition and health education, (iv) immunization, (v) health check-up 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 The State shall regard the raising of the level of nutrition and the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mid-day 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnovative 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-appropriate 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 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 AWH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome 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; (j) AWWs are required to conduct pre-primary education activities for the children of the age group of 3 to 6 years following pre-school timetable and using preschool kit; (k) Appendix-1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng pre-school is an integral part of Anganwadi centres. AWWs and AWHs who are managing the Anganwadi centres have a duty to look after pre-primary 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 socio-economic 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 not statutory posts and the same have been created in terms of ICDS. Therefore, there was no relationship of employer and employee between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 all-pervasive 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub-section (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 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.) (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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