Supreme Court of India
MANIBEN MAGANBHAI BHARIYAversusDISTRICT DEVELOPMENT OFFICER DAHOD & ORS.
- Citation
- 2022 INSC 473
- Decided
- 25 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- AJAY RASTOGI
Holding
Anganwadi workers and helpers employed in ICDS centres are employees within the meaning of the Payment of Gratuity Act, 1972 and are therefore entitled to gratuity.
Summary
The petitioners, Anganwadi workers and helpers employed under the Integrated Child Development Services (ICDS) scheme in Gujarat, sought gratuity benefits under the Payment of Gratuity Act, 1972. The Gujarat High Court’s Division Bench held that they were not employees and thus ineligible for gratuity, overturning an earlier Single Judge decision that had granted them the benefit. The Supreme Court examined whether Anganwadi centres qualify as "establishments" under clause (b) of s.1(3) of the 1972 Act, whether the honorarium paid to the workers constitutes "wages", and whether the workers are "employees" within the meaning of s.2(e). Relying on a liberal, beneficial interpretation of social‑security statutes, the Court found that Anganwadi centres are establishments under the Contract Labour Act and the Code of Wages, that the honorarium is wages, and that the workers are full‑time statutory employees. Consequently, the Court held that the provisions of the 1972 Act apply to them and restored the Single Judge’s order, directing the Gujarat authorities to implement gratuity with 10% simple interest within three months.
Issues considered
- Whether Anganwadi centres constitute "establishments" within the meaning of clause (b) of s.1(3) of the Payment of Gratuity Act, 1972.
- Whether the honorarium paid to Anganwadi workers/helpers is covered by the definition of "wages" under s.2(s) of the Act.
- Whether Anganwadi workers/helpers are "employees" as defined in s.2(e) of the Act.
- Whether the precedent set in State of Karnataka v. Ameerbi is applicable to the present facts.
- Whether the 1972 Act is applicable to workers engaged in the ICDS scheme under the National Food Security Act, 2013.
Legislation cited
- Code of Wages, 2019s. 2(m)
- Code on Social Security, 2020s. 2(29)
- Contract Labour (Regulation and Abolition) Act, 1970s. 2(e)
- National Food Security Act, 2013s. 4, s. 5, s. 6
- Payment of Gratuity Act, 1972s. 1(3), s. 1(3A), s. 2(e), s. 2(f), s. 2(s)
- Right of Children to Free and Compulsory Education Act, 2009s. 11
Subjects
gratuityAnganwadi workersAnganwadi helpersPayment of Gratuity Actestablishmentwagesemployeesocial security legislationbeneficial interpretationICDSNational Food Security Actpublic health
Judgment
760 SUPREME COURT
[2022]REPORTS
5 S.C.R. 760 [2022] 5 S.C.R.
A MANIBEN MAGANBHAI BHARIYA
v.
DISTRICT DEVELOPMENT OFFICER DAHOD & ORS.
(Civil Appeal No. 3153 of 2022)
B APRIL 25, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Payment of Gratuity Act, 1972 – ss.1(3), 1(3A) and 2 –
Gratuity – Entitlement to – Whether Aganwadi workers (AWWs) and
Aganwadi Helpers (AWHs) appointed to work in Anganwadi centres
C set up under the Integrated Child Development Scheme (ICDS)
entitled to gratuity under the 1972 Act – Held (per Abhay S. Oka,
J.): Sub-sections (3) and (3A) of s.1 of 1972 Act, deal with
applicability of its provisions – Clause (b) of s.1(3) applies to every
shop or establishment within meaning of any law for the time being
in force in relation to shops and establishments in a State –
D
Anganwadi Centres are establishment within meaning of clause (e)
of s.2 of the Contract Labour Act – Anganwadi centres have become
an extended arm of the Government and now, operate as an
establishment or a wing of the Government – They are establishments
contemplated by clause (b) of sub-section (3) of s.1 of the 1972 Act
E – Remuneration to AWWs and AWHs is paid by the State Government
– Honorarium paid to AWWs and AWHs is covered by the definition
of wages – As AWWs and AWHs are employed by the State
Government for wages in establishments to which the 1972 Act
applies, the AWWs and AWHs are employees within meaning of the
1972 Act – Provisions of the 1972 Act apply to AWWs and AWHs
F
working in Anganwadi centres – Held (per Ajay Rastogi, J.)
(Supplementing) – Honorarium paid to Anganwadi workers/helpers
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
G being paid to Anganwadi 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 u/s.2(s) of the 1972 Act – National Food Security
H
760
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 761
OFFICER DAHOD
Act, 2013 – ss. 4, 5 and 6 – Contract Labour (Regulation and A
Abolition) Act, 1970 – Public Health – Anganwadi centres.
Public Health – Anganwadi centres – Role of – Duty of the
State to improve the level of nutrition – Held (per Abhay S. Oka,
J.): Apart from Art.47 of the Constitution, India is a signatory to the
Universal Declaration of Human Rights and the International B
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 C
– The approach was changed from the welfare approach to the
rights-based approach – Role of Anganwadi centres finds a place
in the Statement of Objects and Reasons of the 2013 Act –
Constitution of India – Art. 47 – National Food Security Act, 2013
Interpretation of Statutes – Beneficial Interpretation – Held D
(per Ajay Rastogi, J.): When social security legislations are being
interpreted, it always has to be interpreted liberally with a beneficial
interpretation and has to be given the widest possible meaning which
the language permits – When a statute is meant for the benefit of a
particular class and if a word in the statute is capable of two E
meanings, i.e., one which would preserve the benefits and one which
would not, then the former is to be adopted.
Allowing the appeals, the Court
HELD:
PER ABHAY S. OKA, J. F
1. It is the duty of the State to improve the level of nutrition
which is one of the best methods to improve public health.
Anganwadi centres were statutorily recognised under the
National Food Security Act, 2013. Anganwadi centres have been
entrusted with a very vital and significant role in implementing G
Sections 4 to 6 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. [Paras 8, 9, 10 and 12][773-F-G; 774-A-B, C;
776-D-E] H
762 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 2. In view of the provisions of the 2013 Act and Section 11
of the Right of Children to Free and Compulsory Education Act,
2009 (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
B
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. In view of the changes brought about
C 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.
The decision in the case of Ameerbi will not have any bearing on
the issue involved in these appeals. [Paras 18 and 19][780-G-H;
781-A-C]
D
State of Karnataka and others v. Ameerbi and others,
2007 (11) SCC 681 : [2006] 10 Suppl. SCR 329 –held
inapplicable.
3. It is impossible to accept the contention that the job
E assigned to AWWs and AWHs is a part-time job. In the State of
Gujarat, the Government Resolution dated 25th November, 2019
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,
F Honorary Service, Review and Discipline) Rules. 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. [Paras 13 and
G 20][781-D-E; 777-A-B]
4. Sub-sections (3) and (3A) of the Payment of Gratuity Act,
1972 deal with the applicability of its provisions. 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
H shops and establishments in a State in which ten or more persons
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 763
OFFICER DAHOD
are employed or were employed on any day of the preceding A
twelve months. The question is whether clause (b) of Section
1(3) of the Payment of Gratuity Act, 1972 will apply. This Court in
the case of the Labour Court, Jullunder has given a wide
interpretation to clause(b). ‘Establishments’ contemplated by
clause (b) can be establishments within the meaning of any law
B
for the time being in force in a State in relation to establishments.
Establishments have been defined in clause (e) of Section 2 of
the Contract Labour (Regulation and Abolition) Act, 1970. The
Contract Labour Act is applicable to establishments as provided
in sub-section (4)(a) of Section 1. In view of sub-section (2) of
Section 1, the Contract Labour Act is applicable to the State of C
Gujarat. Therefore, it is legislation in relation to establishments
in the State of Gujarat. 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. Anganwadi
D
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 establishments of Anganwadi E
centres. Hence, Anganwadi Centre is an establishment within
the meaning of clause (e) of Section 2 of the Contract Labour
Act. 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
F
of the State Government. The Anganwadi centres have been
employing ten or more AWWs and AWHs in the State. There is
thus no manner of doubt that Anganwadi centres are
establishments contemplated by clause (b) of sub-section (3) of
Section 1 of the 1972 Act. [Paras 21, 22, 24 and 27][781-H;
782-D-E; F-G; 784-G-H; 785-B-E; G-H; 786-A] G
Bangalore Water Supply and Sewerage Board v. A.
Rajappa and others, 1978 (2) SCC 213 – held
inapplicable.
State of Punjab v. Labour Court, Jullunder and others
1980 (1) SCC 4 : [1980] 1 SCR 953 – relied on. H
764 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 5. 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 wages. As AWWs and AWHs are employed by the
State Government for wages in the establishments to which the
Payment of Gratuity Act, 1972 applies, the AWWs and AWHs are
B
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,
C 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.
[Para 29][787-B-D]
6. Further, the Government of India by a notification dated
D 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
E 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. [Para 30][787-D-F]
7. The provisions of the Payment of Gratuity Act, 1972
apply to AWWs and AWHs working in Anganwadi centres. Within
F 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. [Para 32][788-B-C]
Ahmedabad Pvt. Primary Teachers’ Assn. v.
G Administrative Officer and others, 2004 (1) SCC 755 :
[2004] 1 SCR 470 and Jaya Bachchan v. Union of India
and others, 2006 (5) SCC 266 : [2006] 2 Suppl.
SCR 110 – referred to.
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 765
OFFICER DAHOD
Per AJAY RASTOGI, J. (Supplementing) A
1. The role of Anganwadi workers (AWW) and Anganwadi
helpers (AWH) is not only at war against malnutrition but have
played a pivotal and significant role during the Covid-19 pandemic
which was the unprecedented health war faced by the nation in
responding to the various challenges posed. These frontline B
women workers are the backbone of the ICDS. 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, well-being and rights of children become social issues
of interest to the whole community and not just to the mothers of C
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 D
social progress, ICDS deserves far greater attention in public
policy since ICDS acts as an institutional mechanism for
realization of child and women rights. [Paras 19 and 20][793-H;
794-A; D-F]
2. The contribution of Anganwadi workers/helpers at the E
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 F
participation. Indeed, the responsibilities of the Anganwadi
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. G
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. That apart, the Government of Gujarat has also come
with a composite scheme vide its Resolution dated 25th
H
766 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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/
B
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. [Paras 42 and 45][799-H;
800-A-C; 801-B-C]
3. The honorarium paid to the Anganwadi workers/helpers
C 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 workers/helpers with a nomenclature
used by the respondents in projecting the term ‘honorarium’, is
D 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 Payment of
Gratuity Act, 1972. [Para 48][801-F-G]
E 4. In Ameerbi Case on which the Division Bench of the High
Court has placed reliance, 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
the present cases, the question which has been raised for
F 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. Therefore, the
judgment of Ameerbi relied upon by the Division Bench of the
High Court and placed by the respondents before this Court is of
G no assistance and has no application so far as the question raised
before this Court in the instant appeals. [Paras 49, 50 and 51]
[801-H; 802-A-D]
State of Karnataka and others v. Ameerbi and others,
2007 (11) SCC 681 : [2006] 10 Suppl. SCR 329 – held
H inapplicable.
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 767
OFFICER DAHOD
State Bank of India v. Shri N. Sundara Money 1976 (1) A
SCC 822 : [1976] 3 SCR 160; Bangalore Water Supply
and Sewerage Board v. A. Rajappa and others 1978
(2) SCC 213 : [1978] 3 SCR 207; Sant Ram v. Rajinder
Lal and others 1979 (2) SCC 274 : [1979] 1 SCR 900;
Steel Authority of India Ltd. and others v. National Union
B
Waterfront Workers and others 2001 (7) SCC 1 : [2001]
2 Suppl. SCR 343; State of Punjab v. Labour Court,
Jullunder and others 1980 (1) SCC 4 : [1980]
1 SCR 953; Ahmedabad Private Primary Teachers’
Association v. Administrative Officer and others 2004
(1) SCC 755 : [2004] 1 SCR 470; Jaya Bachchan v. C
Union of India and others 2006 (5) SCC 266 : [2006]
2 Suppl. SCR 110; Birla Institute of Technology v. State
of Jharkhand and others 2019 (4) SCC 513 : [2019]
2 SCR 963 and Unni Krishnan J.P. and others v. State
of Andhra Pradesh and others (1993) 4 SCC 111 –
D
referred to.
Case Law Reference
In the judgment of ABHAY S. OKA, J.
(1978) 2 SCC 213 held inapplicable Para 2(d)
E
[2004] 1 SCR 470 referred to Para 2(f)
[2006] 10 Suppl. SCR 329 held inapplicable Para 2(h)
[2006] 2 Suppl. SCR 110 referred to Para 2(i)
[1980] 1 SCR 953 relied on Para 2(j)
F
In the judgment of AJAY RASTOGI, J.
[1976] 3 SCR 160 referred to Para 15
[1978] 3 SCR 207 referred to Para 15
[1979] 1 SCR 900 referred to Para 15 G
[2001] 2 Suppl. SCR 343 referred to Para 15
[1980] 1 SCR 953 referred to Para 16
[2004] 1 SCR 470 referred to Para 16
[2006] 2 Suppl. SCR 110 referred to Para 16 H
768 SUPREME COURT REPORTS [2022] 5 S.C.R.
A [2006] 10 Suppl. SCR 329 held inapplicable Para 16
[2019] 2 SCR 963 referred to Para 16
(1993) 4 SCC 111 referred to Para 24
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3153
B of 2022.
From the Judgment and Order dated 08.08.2017 of the High Court
of Gujarat at Ahmedabad in L.P.A. No. 939 of 2016.
With
Civil Appeal Nos.3154, 3155, 3156, 3157 and 3158 of 2022.
C
Sanjay Parikh, P. V. Surendranath, Sr. Advs., Ms. Pyoli, Satwik
Parikh, Rahul Narang, Subhash Chandran K. R., Biju P. Raman, Sawan
Kumar Shukla, Pawan Kr. Dabas, Advs. for the Appellant.
Ms. Aishwarya Bhati, ASG, Ms. Aastha Mehta, Ms. Prerna
D Mohapatra, Ms. Deepanwita Priyanka, Ms. Hemantika Wahi, Gurmeet
Singh Makker, Ms. Aakanksha Kaul, B. K. Satija, Mohd. Akhil, Sughosh
Subramanyam, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
E
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
F “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
G 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 Letters Patent
Appeals, a Division Bench of Gujarat High Court interfered and set
aside the orders passed by the Controlling Authority and the appellate
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 769
OFFICER DAHOD [ABHAY S. OKA, J.]
authority under the 1972 Act. The Division Bench held that AWWs and A
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
B
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, C
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
protection against loss of income due to unemployment
arising out of incapacity to work due to invalidity, old age, D
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 E
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 others1, it was submitted that as there is a F
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) G
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
1
1978 (2) SCC 213 H
770 SUPREME COURT REPORTS [2022] 5 S.C.R.
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.
B
f) Placing reliance on a decision of this Court in the case of
Ahmedabad Pvt. Primary Teachers’ Assn. v.
Administrative Officer and others2, it was submitted that
as per the notification mentioned above, teaching as well
as non-teaching staff of educational institutions has been
C covered. It is submitted that the effect of the said decision
is that the 1972 Act will even cover employees other than
teachers in educational institutions.
g) While deciding the Ahmedabad Primary Teachers’
Association case, this Court relied upon the definition of
D ‘employee’ in the 1972 Act, which was restricted by the
words “to do any skilled, semi-skilled or unskilled…...”. By
Act No. 47 of 2009, these words were deleted, and
therefore, the definition of ‘employee’ under Section 2(e)
of the 1972 Act has become very wide.
E h) This Court in the case of State of Karnataka and others
v. Ameerbi and others3 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
F Administrative Tribunal established under Section 15 of the
Administrative Tribunals Act, 1985. Hence, the said decision
is not relevant in this case.
i) Merely because the monthly remuneration paid to AWWs
is styled as honorarium, it cannot be conclusive. Under
G Section 2(s) of the 1972 Act, the definition of ‘wages’ is
very wide to include both the categories. AWWs and AWHs
are doing full-time jobs involving multiple duties concerning
women and children. Reliance was placed on a decision of
2
2004 (1) SCC 755
H 3
2007 (11) SCC 681
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 771
OFFICER DAHOD [ABHAY S. OKA, J.]
this Court in the case of Jaya Bachchan v. Union of India A
and others4.
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 B
and others5.
k) The submission is that the provisions of the 1972 Act apply
to AWWs and AWHs.
SUBMISSIONS OF THE RESPONDENTS
C
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 well-versed in cooking, processing food, cleaning, etc.,
are appointed on a yearly basis. They are being paid an honorarium and D
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 E
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 F
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 G
important role of Anganwadi centres in implementing the ICDS scheme
and consequently the role of AWWs and AWHs, the provisions of the
4
2006 (5) SCC 266
5
1980 (1) SCC 4 H
772 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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
B
definitions of ‘commercial establishments’ and ‘establishments’ under
the Gujarat Act, she submitted that ICDS is not an establishment as it
does not carry on any business, 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,
C 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 Corporation6, 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
D
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
E AWHs render valuable assistance, there is insurance coverage provided
to them by the Central Government as set out in the counter affidavit.
Apart from insurance benefits, other benefits are being extended to
AWWs.
REJOINDER OF THE APPELLANTS
F 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,
G it was pointed out that their responsibilities extend not 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.
6
H 2014 (9) SCC 657
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 773
OFFICER DAHOD [ABHAY S. OKA, J.]
ROLE OF ANGANWADI WORKERS AND HELPERS A
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,
B
(ii) pre-school non-formal education,
(iii) nutrition and health education,
(iv) immunization,
(v) health check-up and
C
(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 D
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 E
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 F
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. G
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 rights-based H
774 SUPREME COURT REPORTS [2022] 5 S.C.R.
A approach. The role of Anganwadi centres 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. Sub-section (1) of Section 2 of 2013 Act reads thus:
“(1) “anganwadi” means a child care and development centre set
B up under the Integrated Child Development Services Scheme of
the Central Government to render services covered under section
4, clause (a) of sub-section (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
C 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—
D
(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:
E
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).
F
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:—
G (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;
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 775
OFFICER DAHOD [ABHAY S. OKA, J.]
(b) in the case of children, up to class VIII or within the age group A
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.
B
(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 C
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 D
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 E
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 F
Supplementary Nutrition Rules are relevant which read thus:
“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 G
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 H
776 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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 self-selecting
scheme and the entitlements, as mentioned in clause (a) of
B section 4, clause (a) of sub-section (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.
C (2) The meal shall be served at the nearest anganwadi
centres where the beneficiary is registered or enrolled.”
(emphasis added)
12. Thus, Anganwadi centres have been entrusted with the
onerous responsibility of implementing some of the most important and
D 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
E 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
F standards specified in Schedule II of the 2013 Act. Therefore, under
sub-section (2) of Section 5, there is a provision that every Anganwadi
centre shall have a proper facility of cooking meals, drinking water and
sanitation. Another crucial statutory duty assigned to local Anganwadi
centres is to identify children who suffer from malnutrition so that free
meals can be provided to such identified children. The AWWs and AWHs
G 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.
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 777
OFFICER DAHOD [ABHAY S. OKA, J.]
13. Now, coming to the State of Gujarat, the Government Resolution A
dated 25th November 2019 (Annexure A-1 of IA no. 161608 of 2021)
lays down exhaustive provisions regarding selection criteria, duties,
disciplinary action, rules, etc. in respect of AWWs and AWHs. In fact,
by the said Resolution, the State Government has framed the Anganwadi
Worker/Helper (Selection Criteria, Honorary Service, Review and
B
Discipline) Rules (for short “the said Rules”). Duties of AWWs and
AWHs have been laid down in Appendix-1 to the Government Resolution.
Very important functions and responsibilities have been assigned to
AWWs in Appendix-1. We are reproducing some of the onerous duties
and functions assigned to AWWs :
(a) The AWWs shall carry out the survey within their area of C
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 growth-development of all children. They are D
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
E
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 follow-up visits every fortnight to the children
rehabilitated at Children Malnutrition Treatment Centres/
Nutrition Rehabilitation Centres and ensure that the said F
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; G
(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
778 SUPREME COURT REPORTS [2022] 5 S.C.R.
A (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
B 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 pre-school kit;
(k) Appendix-1 provides for AWWs attending meetings of
C 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
D 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.
E 14. The duties and functions of AWHs are also very onerous.
Some of the important duties are as under:
• To report half an hour before the working hours of
Anganwadi centres and clean Anganwadi centres every
day. To maintain a neat and clean environment within the
Anganwadi centres;
F
• 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;
G • 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
H Office of ICDS.
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 779
OFFICER DAHOD [ABHAY S. OKA, J.]
15. One of the important functions of Anganwadi centres is to A
conduct pre-primary education activities for the children of the age group
of 3 to 6 years by following the pre-school timetable and by using the
pre-school 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 pre-
B
primary education signed 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 pre-school
education. —With a view to prepare children above the age of C
three years for elementary education and to provide early childhood
care and education for all children until they complete the age of
six years, the appropriate Government may make necessary
arrangement for providing free pre-school education for such
children.” D
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 pre-primary 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 E
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 pre-primary schools for children in
the age group of 3 to 6 years. The educational activity of running pre-
school is an integral part of Anganwadi centres. AWWs and AWHs F
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 G
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.
H
780 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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
B
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
C 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
D 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
E appointments of AWWs and AWHs has been incorporated. It also
incorporates the marking system for the 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
F 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,
G 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
H of AWWs and AWHs are statutory posts.
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 781
OFFICER DAHOD [ABHAY S. OKA, J.]
19. As far as the State of Gujarat is concerned, the appointments A
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
B
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, C
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 women as well as D
lactating mothers under the 2013 Act has been entrusted to them. It is
thus impossible to accept the contention that the job assigned to AWWs
and AWHs is a part-time job. The Government Resolution dated 25th
November 2019, which prescribes duties of AWWs and AWHs, does
not lay down that their job is a part-time job. Considering the nature of
duties specified thereunder, it is full-time employment. In the State of E
Gujarat, AWWs are being paid monthly remuneration of only Rs.7,800/
- and AWHs are being paid monthly remuneration of only Rs.3,950/-.
AWWs working in mini-Anganwadi centres are being paid a sum of
Rs.4,400/- per month. The important tasks of providing food security to
children in the age group of 6 months to 6 years, pregnant women as F
well as lactating mothers have been assigned to them. In addition, there
is a duty to render pre-school education. For all this, they are being paid
very meagre remuneration and paltry benefits under an insurance scheme
of the Central Government. It is high time that the Central Government
and State Governments take serious note of the plight of AWWs and
AWHs who are expected to render such important services to the society. G
APPLICABILITY OF THE PROVISIONS OF THE 1972
ACT TO AWWs AND AWHs
21. Now, I turn to the provisions of the 1972 Act. Sub-sections (3)
and (3A) of the 1972 Act deal with the applicability of its provisions.
Sub-sections (3) and (3A) of Section 1 reads thus: H
782 SUPREME COURT REPORTS [2022] 5 S.C.R.
A “(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
B 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
C
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.]”
D (emphasis added)
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
E 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.
F
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
G 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
H company;
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 783
OFFICER DAHOD [ABHAY S. OKA, J.]
(b) every shop or establishment within the meaning of any A
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, B
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) C
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 D
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. E
We are unable to accept the contention. Section 1(3)(b)
speaks of “any law 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 F
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 G
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 H
784 SUPREME COURT REPORTS [2022] 5 S.C.R.
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
B
statute relating to shops and establishments, both
commercial and non-commercial. 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,
C 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
D
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.
E 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
F
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
G establishments within the meaning of any law for the time being in force in
a State in relation to establishments. Therefore, I have examined the laws
in relation to establishments which are in force in the State of Gujarat.
25. I may refer to the provisions of the Contract Labour (Regulation
and Abolition) Act, 1970 (for short “the Contract Labour Act”). Establishments
H have been defined in clause (e) of Section 2 which reads thus :
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 785
OFFICER DAHOD [ABHAY S. OKA, J.]
“(e)”establishment” means- A
(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.”
B
The Contract Labour Act is applicable to establishments as
provided in sub-section (4)(a) of Section 1. In view of sub-section (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 C
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 D
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 establishments of Anganwadi centres.
Hence, Anganwadi Centre is an establishment within the meaning of
clause (e) of Section 2 of the Contract Labour Act.
E
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 F
of establishment under clause 29 of Section 2 of the Code on Social
Security, 2020 which received the assent of the President on 28 th
September 2020. These provisions show the legislative intent to include
the various Government establishments in the category of establishments
in the welfare statutes. G
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
H
786 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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.
B
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)
C 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
D
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: -
E (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,
F (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
G 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
H employee while on duty or on leave in accordance with the terms
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 787
OFFICER DAHOD [ABHAY S. OKA, J.]
and conditions of his employment and which are paid or are payable A
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 B
AWWs and AWHs will also be covered by the definition of 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 C
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 personor 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. D
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 pre-school for the children
in the age group of 3 to 6 years is being conducted. It is purely an E
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 F
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 G
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.
H
788 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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 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
B
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 sub-section 3A of Section 7 of the 1972 Act.
C
AJAY 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
D 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
E 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
F 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/
G 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 provide for financing
of the social security programmes by contributions paid by employees
H and employers and in some cases supplemented by contributions/grants
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 789
OFFICER DAHOD [AJAY RASTOGI, J.]
from the Government. At the same time, we have major non-contributory A
laws such as the Employee’s Compensation Act, 1923, the Maternity
Benefit Act, 1961 and the Payment of Gratuity Act, 1972 with which we
are presently concerned.
4. When we talk about social security legislations, two broad
categories are social insurance legislation and social assistance legislation. B
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/ C
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 D
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 enacted in the form
of The Payment of Gratuity Act, 1972, which was brought into force on E
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 F
superannuation/retirement/resignation/untimely death becomes qualified
to claim gratuity in terms of the computation as has been provided under
Sub-section (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 G
) 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 H
790 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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
B
for the purpose are referred to as under:-
“1(3) It shall apply to –
(a) every factory, mine, oilfield, plantation, port and railway
company;
C (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
D 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 ………………
(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
F 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.
……………
G (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
H wages and any other allowance.”
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 791
OFFICER DAHOD [AJAY RASTOGI, J.]
7. Act, 1972 on the genre of statutes like The Minimum Wages A
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 B
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. C
9. Thus, gratuity, as a social welfare legislation, its effective
implementation is of paramount importance to fulfil the legitimate
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. D
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 E
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
F
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” G
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. H
792 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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
B
would not, then the former is to be adopted.
14. Maxwell on Beneficial Construction holds the following:
“The construction of a statute must not strain the words as to
include cases plainly omitted from the natural meaning of the
language. Nevertheless, even where the usual meaning of the
C 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
D about constructive and welfare legislations. The judgment in State Bank
of India Vs. Shri N. Sundara Money1 followed with Bangalore Water
Supply and Sewerage Board Vs. A. Rajappa and others2; Sant Ram
Vs. Rajinder Lal and others3 and later the Constitution Bench in Steel
Authority of India Ltd. and others Vs. National Union Waterfront
Workers and others4 are the exposition of law on the subject.
E
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
and others6; Jaya Bachchan Vs. Union of India and others7; State
F 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.
1
1976(1) SCC 822
2
G 1978(2) SCC 213
3
1979(2) SCC 274
4
2001(7) SCC 1
5
1980(1) SCC 4
6
2004(1) SCC 755
7
2006(5) SCC 266
8
2007(11) SCC 681
H 9
2019(4) SCC 513
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 793
OFFICER DAHOD [AJAY RASTOGI, J.]
17. While adverting to the facts of the instant cases, it manifests A
from the record that the five appellants joined as Anganwadi workers/
helpers between the period 1982-1985 and served for 21-31 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
B
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 C
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:-
D
E
F
18. This Court took a judicial notice that after the incumbent has
served for 21-31 years but because of the wages being admissible at the
relevant time being Rs. 1000/- or Rs. 1250/- per month, the amount G
which has been computed towards gratuity in terms of the provisions of
the Act 1972 is only into thousands of rupees.
19. The role of Anganwadi workers (AWW) and Anganwadi
helpers (AWH) is not only at war against malnutrition but have played a
H
794 SUPREME COURT REPORTS [2022] 5 S.C.R.
A pivotal and significant role during the Covid-19 pandemic which was the
unprecedented health war faced by the nation in responding to the various
challenges posed. These frontline women workers are the backbone of
the ICDS. The ICDS scheme was introduced on 2nd October, 1975 and
by this time has successfully completed its journey of 47 years and
established its roots. The record shows that ICDS is the world’s largest
B
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
C 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 home-deliver ration to ICDS
beneficiaries and also educate rural people about dos and dont’s of
coronavirus and prepare a list of outsiders visiting the villages.
D
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, well-being and rights of children become social issues of
interest to the whole community and not just to the mothers of the families
E 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
F 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
G 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.
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 795
OFFICER DAHOD [AJAY RASTOGI, J.]
22. The National Family Health Survey (2005-06) indicates that A
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 B
later learning and any damage or impoverishment suffered at this stage
is likely to be irreparable. These are years of extreme vulnerability and
tremendous potential during which adequate protection, care and
stimulation are essential to provide the foundation for the child’s well-
being and development. A lack of adequate nutrition and proper care
has irreversible consequences. Poor nutrition has a negative impact on C
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 D
mortality drastically.
23. When we talk about fundamental rights and rights of children
under six years, recognizing the significance of child-care and development
in realizing the goal of national progress, the Founding Parents enacted
several provisions concerning welfare and development of children, E
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 F
and programmes have been passed. Jurisprudence developed by passage
of time under Article 21 of the Constitution by this 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. G
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.
10
(1993)4 SCC 111 H
796 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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 21-A was
inserted through the 86th Amendment Act, 2002 in the Constitution,
B
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
C 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
D 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
E of freedom and dignity and that the childhood and youth are protected
against exploitation and against moral and material abandonment.”
27. Article 45 provides that “the State shall endeavor to provide
early childhood care and education for all children until they complete
the age of six years”. This provision makes the right to early childhood
F 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
G education for all children until they complete the age of six years, the
appropriate Government may make necessary arrangement for providing
free pre-school education for such children”.
28. Health and nutrition are other sectors which are also primary
area for young child. The right to nutrition and healthcare in fact
H constitutes the most basic and fundamental right of children. Absence of
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 797
OFFICER DAHOD [AJAY RASTOGI, J.]
legally enforceable entitlements makes children especially under-six more A
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 held Central and B
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.
C
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 child-birth, through
local Anganwadi, so as to meet the nutritional standards specified in D
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 E
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 F
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 G
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
H
798 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 158 million children as per 2011 census. These children are the future
human resource of the country. The Ministry of Women and Child
Development is implementing various schemes for welfare, development
and protection of children.
34. ICDS Scheme is one of the flagship programmes of the
B 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 non-formal education
on one hand and breaking the vicious cycle of malnutrition, morbidity,
reduced learning capacity and mortality on the other. The beneficiaries
C under the Scheme are children in the age group of 0-6 years, pregnant
women and lactating mothers.
35. The objectives of the Scheme are:
• to improve the nutritional and health status of children in
D the age-group 0-6 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;
E
• to achieve effective co-ordination 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
F
proper nutrition and health education.
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
G 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.
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 799
OFFICER DAHOD [AJAY RASTOGI, J.]
37. Their daily tasks include taking responsibility for pre-school A
activities for children in the age group of 3-6 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
B
Staff in implementation of immunization, among others.
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 C
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 D
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 E
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. F
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 G
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
H
800 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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 workers/helpers have tremendously increased which now
require to perform multiple tasks ranging from delivery of vital services,
B
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.
C 43. The relevant part of the policy decision dated 15th September,
2015 is referred to as under:-
“The above position has been reviewed keeping in view
the aspirations of these field functionaries, to encourage their
participating in the higher posts vis a vis their merit and to improve
D 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
E 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
F (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
G
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
H
MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT 801
OFFICER DAHOD [AJAY RASTOGI, J.]
opportunities are made available to Anganwadi workers/helpers being A
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 B
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 C
said purpose.
46. Further, those who are finally selected and appointed as
Anganwadi workers/helpers shall be governed by the Code of Conduct
and they could also to be terminated, if any misconduct being committed
in discharge of duties or on attaining the age of superannuation. D
47. Thus, the in-built transparent procedure has been prescribed
by the State of Gujarat under its Resolution dated 25th November, 2019
laying down the mode of selection along with service conditions to be
regulated while working as Anganwadi workers/helpers at Anganwadi
centres and they shall retire at the age of superannuation. This controls E
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 F
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 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 G
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
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802 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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
B
behest of Anganwadi workers/helpers under Section 15 of the
Administrative Tribunal Act, 1985 was held to be not maintainable.
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
C 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.
D
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
E 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
F 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
G 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.
Bibhuti Bhushan Bose Appeals allowed.
(Assisted by : Shubhanshu Das, LCRA)
H
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