Maniben Maganbhai Bhariya vs District Development Officer

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]

Signature Not Verified AND Digitally signed by NIRMALA NEGI Date: 2022.04.25 18:46:45 IST

CIVIL APPEAL NO(S). 3158 OF 2022 Reason:

(@ SLP(CIVIL) No. 29011 of 2018]

1 JUDGMENT

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.

4 National Union Waterfront Workers and others 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 6 th 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 Date of Number of Amount Of Retirement Years of directed to Joining Service be paid towards gratuity SCA 1982 27.02.2011 29 Rs.20,913/­ 1219/2016 SCA 19.01.1984 30.04.2011 27 Rs.38,942/­ 1220/2016 SCA 03.08.1983 30.04.2006 23 Rs.13,269/­ 1221/2016 SCA 16.04.1981 29.02.2012 31 Rs.22,356/­ 1222/2016 SCA 03.06.1989 20.02.2006 21 Rs.15,144/­ 1223/2016

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 86 th

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 pre­

school 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 15 th 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 25 th 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 JUDGMENT

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 21 st 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 2 nd 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 5 th 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 duty­

bound 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 pre­

school 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 pre­

primary schools as well. We may also note here that on 8 th 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

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 pre­

school 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 non­ commercial 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 pre­

school 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

39 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.

41