TaxTMI 
TaxTMI 
2022 (5) TMI 468
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....my views not because the judgment requires any further elaboration but looking for the question of law that emerged of considerable importance. 2. The moot question which has been raised in the instant appeals for our consideration indeed is a question which may not only determine the rights of the contesting Appellants working as Anganwadi workers/helpers who are discharging a pivotal role in the society at the grassroot level and are the role model of the ICDS scheme which is one of the extended arm of the Ministry of Women and Child Development, at the given time, it may also give a thought process to the Legislature to consider as to whether the applicability of gratuity being a social security measure, be extended to the employees who served the establishment in an organized or unorganized sector and, in one way or the other, contributing in the sustainable development of the nation. 3. Looking to the large number of persons working in the organized/unorganized sector by passage of time, different social security legislations have been introduced in this largest democratic country, which can be divided into two broad categories, namely, the contributory and non-contribut....
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.... 1972. Such of the employees working under the establishments referred to Under Section 1(3) (a),(b) and (c), as the case may be, shall be eligible to claim payment of gratuity in terms of Section 4 of the Act, 1972 and so far as the term 'wages' defined Under Section 2(s) of the Act 1972 is concerned, it appears to be only for the purpose of computation as provided Under Sub-section (2) of Section 4 of the Act and withholding of gratuity is not permissible under any circumstances other than those enumerated Under Sub-section (6) of Section 4 of the Act, 1972. The employee defined Under Section 2(e) has a right to claim gratuity as a statutory right while working in the establishment covered Under Section 1(3) of Act 1972. Section 1(3) and 2(e) and 2(s) of Act, 1972 relevant for the purpose are referred to as under: 1(3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve mo....
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....the foundation for improvement in standards of living of the employees. 10. The Act 1972 is a social security legislation to wage earning population in industries, factories and establishments, etc. Therefore, considering the inflation and wage increase even in case of employees engaged in private sector, the Government decided that the entitlement of gratuity should be revised in respect of employees who are covered under Act, 1972 and accordingly, the Government initiated the process for amendment to Act, 1972 to increase the maximum limit of gratuity to such amount as may be notified by the Central Government from time to time. 11. This will indeed ensure harmony amongst employees in the private sector and in Public Sector Undertakings/Autonomous Organizations under Government who are not covered under CCS (Pension) Rules. These employees will be entitled to receive higher amount of gratuity may not be at par with their counterparts in Government sector. 12. That appears to be the reason for which amendments are made in the year 2007 to widen the definition of the term "employee" and to bring under its fold the large number of employees working in various establishments....
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....s 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 Appellants, the prescribed authority held in their favour with a direction to the Respondents to pay gratuity in terms of the procedure for computation referred to Under Section 4 of the Act 1972. The order of the prescribed authority under the Act, 1972 came to be confirmed by the appellate authority and also by the learned Single Judge of the High Court vide judgment dated 6th June, 2016 but the finding returned by the learned Single Judge came to be reversed by the Division Bench of the High Court under the impugned judgment primarily relying on the judgment of this Court in Ameerbi (supra). The details of each of the Appellant who had served in Anganwadi workers/helpers are reproduced below: Date Of Joining Date of Retirement Number of Years of Service Amount directed to be paid towards gratuity SCA 1219/2016 1982....
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....ontributes to the liberation of women: it lightens the burden of looking after children, provides a potential source of remunerated employment for women and gives them an opportunity to build women's organizations. In light of these rich contributions of childcare to social progress, ICDS deserves far greater attention in public policy since ICDS acts as an institutional mechanism for realization of child and women rights. Yet these services are regarded as State largesse rather than as enforceable entitlements. 21. If we take a holistic view of the matter, extending social security to the early child care and development of millions of children of this country, health and nutrition services to children is a good investment. The study indicates that returns to child nutrition are quite high, or at least can be quite high in this country. Thus, ICDS is an extended arm of the Ministry of Women and Child Development and their nature of services been provided to a common man must be acknowledged by the legislation. 22. The National Family Health Survey (2005-06) indicates that 48% of children under five are stunted and 43% are underweight for their age. There is a worldwide c....
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.... 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, recognising the fundamentality of the right to education for children between the age group of six to fourteen. Although the 86th Amendment brought a Directive Principle of State Policy, ignored until now, within the folds of Part III of the Constitution, it excluded children below the age of six, thus denying them education for proper growth and development. 26. When we talk of national development, their concerns were amply reflected in the enactment of Articles 39(e) and (f) of the Constitution. These two provisions provide for health care and protection of its citizens, including children. While Article 39(e) stipulates that the State shall direct its policy towards securing "that the health and strength of workers, men and women and the tender age of children are not abused" and "that the citizens are not forced by economic necessity to enter avocations unsuited to their age o....
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....ds specified in Schedule II of the Act." 31. The vision of ICDS scheme is to empower women living with dignity to contribute as equal partners in development in an environment free from violence and discrimination along with well nurtured children with full opportunities for growth and development in a safe and protective environment. 32. The mission and mandate of the scheme of ICDS is to promote social and economic empowerment of women through cross-cutting policies and programmes, mainstreaming gender concerns, creating awareness about their rights and facilitating institutional and legislative support for enabling them to realize their human rights and develop to their full potential. The second is to ensure development, care and protection of children through cross-cutting policies and programmes, spreading awareness about their rights and facilitating access to learning, nutrition, institutional and legislative support for enabling them to grow and develop to their full potential. 33. When we go further and take note of ICDS scheme implemented through Anganwadis, a pivotal role is being played by Anganwadi workers and Anganwadi helpers, by taking care of children in ....
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....ving health and nutrition education to mothers, making home visits for educating parents, eliciting community support and participation, assisting the Primary Health Centre Staff in implementation of immunization, among others. 38. Anganwadi workers/helpers are the key facilitators of child nutrition initiatives at the ground level and involved in performing the work of dissemination, publicity, building awareness, and implementation of various schemes of the Government. No wonder, the strength of Anganwadi Centres has increased manifold by passage of time in the country. 39. Anganwadi workers/helpers also function as a bridge between the Government and the targeted beneficiaries in delivering a bouquet of services stipulated under the NFSA. They work in proximate quarters with the beneficiaries and their services are utilized by the respective State Governments for a wide range of activities - be it survey, promotion of small savings, providing health care, group insurance, or non-formal education. 40. If we look towards the problems plaguing the Anganwadi workers/helpers, the first and foremost, they are not holders of civil posts due to which they are deprived of a regu....
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.... qualifications as per the Recruitment Rules for the post of Supervisor, failing which the vacancies would be filled up by direct recruitment; and (ii) The remaining 50% vacancies in the posts of Supervisors would be filled up by direct recruitment. ... It is requested that the States/UTs may amend recruitment Rules for the posts of Supervisors as per the above guidelines on urgent basis and a copy of such Recruitment Rules, after being notified, may be sent to the Ministry. 44. This appears to be the reason that on acknowledging their services on account of an exponential increase in Anganwadi centres/workers which has been recognized by Government of India, the opportunities are made available to Anganwadi workers/helpers being brought into the mainstream and to become Government employee, with a passage of time. 45. That apart, the Government of Gujarat has also come with a composite scheme vide its Resolution dated 25th November, 2019 laying down the procedure according to which selections shall be made through a transparent procedure to be followed laying down the eligibility criteria (including academic qualification) according to which the me....
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.... 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 provisions of the Act, 1972. 51. The judgment of Ameerbi (supra) relied upon by the Division Bench of the High Court and placed by the Respondents before this Court is of no assistance and has no application so far as the question raised before us in the instant appeals. 52. Before parting with the order, I would like to observe that the time has come when the Central Government/State Governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and calling upon Anganwadi workers/helpers to perform multiple tasks ranging from delivery of vital services to the effective convergence of various sectoral services, the existing working conditions of Anganwadi workers/helpers coupled with lack of job security which albeit results in lack of motivation to serve in disadvant....
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.... 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, etc. b) Anganwadi centres set up under ICDS are 'establishments' within the meaning of Clause (b) of Section 1(3) of the 1972 Act. c) The concept of 'establishment' under the 1972 Act is much broader than the definition of 'industry' Under Section 2(j) of the Industrial Disputes Act, 1947 (for short, "the 1947 Act"). d) Relying upon a decision of this Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. : 1978 (2) SCC 213, it was submitted that as there is a systematic and organized activity carried out in Anganwadi centres with the cooperation of the employer and employees for rendering services, Anganwadi centres will have to be treated as 'industry.' e) In the alternative, it was submitted that even if Clause (b) of Section 1(3) of the 1972 Act does not apply to Anganwadi centres, Clause (c) of Section 1(3) will apply as the Government of Indi....
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....rence was made to a decision of this Court in the case of State of Punjab v. Labour Court, Jullundur and Ors. : 1980 (1) SCC 4. k) The submission is that the provisions of the 1972 Act apply to AWWs and AWHs. SUBMISSIONS OF THE RESPONDENTS 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 not wages. It is pointed out that the honorarium payable to AWWs and AWHs has been enhanced in the year 2020. She submitted that though the share of the Central Government in the honorarium has not been increased, under the Government Resolution dated 21st March 2020, the State Government has increased its contribution, and now the remuneration of AWWs is Rs. 7,800/- per month. She submitted that a number of other benefits have been made available by the State Government to AWWs, set out in the counter affidavit. It is pointed ....
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....ts are being extended to AWWs. REJOINDER OF THE APPELLANTS 5. The learned Counsel appearing for Appellants pointed out that Anganwadi centres are performing the statutory duty of implementing provisions of Sections 4, 5 and 6 of the National Food Security Act, 2013 (for short "the Act of 2013"). By pointing out the duties of AWWs and AWHs, which are placed on record along with IA No. 161608 of 2021, it was pointed out that their responsibilities extend not only to running Anganwadi centres but to running pre-primary schools in Anganwadis. Apart from that, they are obligated to make home visits for various purposes. It is certain that they are doing full-time jobs and are discharging onerous responsibilities. ROLE OF ANGANWADI WORKERS AND HELPERS 6. I have given careful consideration to the submissions. The Government of India launched ICDS on 2nd October 1975. Under ICDS, six services are being provided: (i) supplementary nutrition, (ii) pre-school non-formal education, (iii) nutrition and health education, (iv) immunization, (v) health check-up and (vi) referral services. The cost of running ICDS and Anganwadi ce....
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.... (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: Provided that all pregnant women and lactating mothers in regular employment with the Central Government or State Governments or Public Sector Undertakings or those who are in receipt of similar benefits under any law for the time being in force shall not be entitled to benefits specified in Clause (b). 5. Nutritional support to children--(1) Subject to the provisions contained in Clause (b), every child up to the age of fourteen years shall have the following entitlements for his nutritional needs, namely: (a) in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II: Provided that for children below the age of six months, exclusive breast feeding shall be promoted; (b) in the cas....
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....ed Child Development Services) is a self-selecting scheme and the entitlements, as mentioned in Clause (a) of 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. (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 innovative provisions of the 2013 Act. It can be said that Anganwadi centres perform a pivotal role in discharging the statutory obligation of the State to provide nutritional support to pregnant women, lactating mothers and children in the age group of 6 months to 6 years. A free meal is provided to pregnant mothers during pregnancy and 6 months after childbirth through the Anganwadi centres. In the case of children in the age group of 6 months to 6 years, an age-appropriate free meal is to be provided in Anganwadi centres. In addition, ....
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....wth. 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 children get supplementary food at Anganwadi centres; (e) AWWs are also required to cater to vaccination services with the help of Aasha workers. They are also duty-bound to undertake activities relating to health, nutrition, and hygiene education; (f) They are responsible for following safety and hygiene norms in respect of food materials in Anganwadi centres; (g) AWWs must make home visits at least three times a week and meet children below the age of 3 years, pregnant women, and lactating mothers; (h) With a view to ensuring public participation in the activities of Anganwadis, they are required to celebrate various special days on all four Tuesdays; (i) It is the duty of the AWWs to identify handicapped children or children with slow growth and provide referral services to them by referring them for health screening; (j) AWWs are req....
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....complete the age of six years, the appropriate Government may make necessary arrangement for providing free pre-school education for such children. The appropriate Government, in this case, is the Government of Gujarat. For giving effect to Section 11 of the RTE Act, a provision has been made by the State Government to conduct 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 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 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 Nouri....
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....ns of the 2013 Act and Section 11 of the RTE Act, Anganwadi centres also perform statutory duties. Therefore, even AWWs and AWHs perform statutory duties under the said enactments. The Anganwadi centres have, thus, become an extended arm of the Government in view of the enactment of the 2013 Act and the Rules framed by the Government of Gujarat. The Anganwadi centres have been established to give effect to the obligations of the State defined Under Article 47 of the Constitution. It can be safely said that the posts of AWWs and AWHs are statutory posts. 19. As far as the State of Gujarat is concerned, the appointments of AWWs and AWHs are governed by the said Rules. In view of the 2013 Act, AWWs and AWHs are no longer a part of any temporary scheme of ICDS. It cannot be said that the employment of AWWs and AWHs has temporary status. In view of the changes brought about by the 2013 Act and the aforesaid Rules framed by the Government of Gujarat, the law laid down by this Court in the case of Ameerbi will not detain this Court any further from deciding the issue. For the reasons stated above, the decision in the case of Ameerbi will not have any bearing on the issue involved in th....
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....on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. [(3A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.] (emphasis added) 22. Reliance has been placed by the Appellants on Clause (b) of Section 1(3) and in the alternative, on Clause (c). Clause (b) of Section 1(3) applies to every shop or establishment within the meaning of any law for the time being in force in relation to the shops and establishments in a State in which ten or more persons are employed or were employed on any day of the preceding twelve months. 23. Though, during the course of submissions, reliance was first placed on the Gujarat Act as applicable to the State of Gujarat, by the Gujarat Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2019, the Gujarat Act has been repealed. 24. Now, the question is whether Clause (b) of Section 1(3) of the 1972 Act will apply. This Court in the case of the Labour Court, Jullunder (s....
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....o shops, relates to a class of establishments, that is to say, industrial establishments. But it is contended, the law referred to Under Section 1(3)(b) must be a law which relates to both shops and establishments, such as the Punjab Shops and Commercial Establishments Act, 1958. It is difficult to accept that contention because there is no warrant for so limiting the meaning of the expression "law" in Section 1(3)(b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as, separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation to noncommercial establishments. Had Section 1(3)(b) intended to refer to a single enactment, surely the Appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and 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, when enacting Section 1(3)(b), to refer to a law relating to commercial establishment....
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....s. As stated earlier, Anganwadi centres have become an extended arm of the Government. Now, it operates as an establishment or a wing of the Government. The remuneration to AWWs and AWHs is paid by the State Government. However, the State Government gets contributions from the Central Government. Moreover, it can always be said that occupation is carried out in the establishments of Anganwadi centres. Hence, Anganwadi Centre is an establishment within the meaning of Clause (e) of Section 2 of the Contract Labour Act. 26. The Code of Wages, 2019 is an enactment that received the assent of the President on 8th August 2019. However, only a few provisions therein have been brought into force so far. Clause (m) of Section 2 thereof defines establishment which means any place where any industry, trade, business, manufacture, or occupation is carried out and it includes the Government establishments. There is a similar definition of establishment under Clause 29 of Section 2 of the Code on Social Security, 2020 which received the assent of the President on 28th September 2020. These provisions show the legislative intent to include the various Government establishments in the category ....
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....id affairs are entrusted to any other person, whether called a manager, or managing director or by any other name, such person; (s) "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance. 29. The definition of 'wages' is very wide. It means all emoluments which are earned by an employee on duty. Thus, the honorarium paid to AWWs and AWHs will also be covered by the definition of wages. As AWWs and AWHs are employed by the State Government for wages in the establishments to which the 1972 Act applies, the AWWs and AWHs are employees within the meaning of the 1972 Act. In view of the said Rules of the Gujarat Government, the Anganwadi centres are not under the control of the Central Government. Therefore, the State Government will be an appropriate Government within the meaning of Clause (a) of Section 2 of the 1972 Act. Accordingly, a person or authority appointed by the appropriate Gover....