A two-judge Bench of Justice Ajay Rastogi and Justice Abhay S. Oka has held that Anganwadi Workers (AWWs) and Anganwadi Helpers (AWH) are an extended arm of the Government, thus entitled to receive gratuity under the Payment of Gratuity Act, 1972.

The judgment has been authored by the two Justices separately.

Senior Counsel Mr. Sanjay Parikh along with Senior Counsel Mr. P.V. Surendranath appeared for the Appellants while ASG Ms. Aishwarya Bhati along with Counsel Ms. Aastha Mehta appeared for the State of Gujarat before the Apex Court.

The issue which was dealt with by the Court was –

  • Whether the Anganwadi workers and Anganwadi helpers appointed to work in Anganwadi centres set up under the Integrated Child Development Scheme (ICDS) are entitled to gratuity under the Payment of Gratuity Act 1972.

In this case, the Division Bench of the Gujarat High Court had set aside the orders passed by the Controlling Authority and the Appellate Authority under the 1972 Act and held that AWWs and AWHs could not be said to be employees under Section 2(e) of the 1972 Act and the ICDS project cannot be said to be an industry.

The High Court also held that as the remuneration or the 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 High Court was assailed before the Supreme Court.

i) Justice Ajay Rastogi's Analysis

Justice Rastogi noted that the role of AWW and 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.

While holding so, Justice Rastogi held that these frontline women workers are the backbone of ICDS that was introduced on 2nd October 1975 and by this time has successfully completed its journey of 47 years and established its roots.

Further, the Judge noted –

"The record shows that ICDS is the world's largest programme for early childhood care and development, covering over 158 million children as per 2011 census, and pregnant and lactating mothers in the country. If we go as per the statistics as of June 2018, there were 1.36 million functional Anganwadi centres spread across all the districts in the country. These districts are staffed by frontline health staff: one Anganwadi worker and one Anganwadi helper."

Justice Rastogi also held that the majority of these centres are located in difficult terrains and these women have to trek for kilometers every day to discharge their duties. During the pandemic, these workers took the additional duty to home-deliver ration to the ICDS beneficiaries and also educate rural people about the dos and dont's of coronavirus and prepare a list of outsiders visiting the villages.

"ICDS scheme is not just a welfare scheme but a means of protecting the rights of children under six­ including their right to nutrition, health and joyful learning and rights of pregnant and lactating mothers. The survival, well­being and rights of children become social issues of interest to the whole community and not just to the mothers of the families concerned. "Socialised childcare" also contributes to the liberation of women: it lightens the burden of looking after children, provides a potential source of remunerated employment for women and gives them an opportunity to build women's organizations," Justice Rastogi opined.

The Judge also held that recognizing the special needs of the pregnant and lactating mothers and their relation to the child's health has been acknowledged and recognized under Section 4 of the National Food Security Act, 2013 wherein provisions have been made entitling such women to "meal, free of charge during pregnancy and six months after the child­birth, through local Anganwadi, so as to meet the nutritional standards specified in Schedule II of the Act.

"When we go further and take note of ICDS scheme implemented through Anganwadis, a pivotal role is being played by Anganwadi workers and Anganwadi helpers, by taking care of children in the age group 0­6 years, which, as already observed, constitutes around 158 million children as per 2011 census. These children are the future human resource of the country. The Ministry of Women and Child Development is implementing various schemes for welfare, development and protection of children," noted the Judge.

The Judge also opined that the contribution of AWW and AWH at the grassroots level under the ICDS scheme is being well acknowledged by the Government of India, Ministry of Women and Child Development.

The Judge parted with the order, holding, "I would like to observe that the time has come when the Central Government/State Governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and calling upon Anganwadi workers/helpers to perform multiple tasks ranging from delivery of vital services to the effective convergence of various sectoral services, the existing working conditions of Anganwadi workers/helpers coupled with lack of job security which albeit results in lack of motivation to serve in disadvantaged areas with limited sensitivity towards the delivery of services to such underprivileged groups, still being the backbone of the scheme introduced by ICDS, time has come to find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by them," and allowed the appeal.

ii) Justice Abhay S. Oka's Analysis

The Judge while discussing the importance of AWW and AWH noted that the State of Gujarat passed a Government Resolution dated 25th November 2019 that lays down exhaustive provisions regarding selection criteria, duties, disciplinary action, rules, etc. in respect of AWWs and AWHs. Also, by the said Resolution the State has framed Anganwadi Worker/Helper (Selection Criteria, Honorary Service, Review and Discipline) Rules.

Justice Oka further held that in view of the 2013 Act and Section 11 of the Rights of Children to Free and Compulsory Education Act, 2009 (RTE), Anganwadi centres perform statutory duties. In this context, the Judge opined –

"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."

The Judge further held that in view of the 2013 Act, AWWs and AWHs are no longer a part of any temporary scheme of IDS and it cannot be said that the employment of AWWs and AWHs has temporary status.

Justice Okay also held that considering the nature of duties of the AWWs and AWHs, their job is full-time employment and not part-time.

The Judge also expressed his concern over the amount of remuneration the AWWs and AWHs receive and held that it is high time that the Central Government and State Government take serious note of the plight of AWWs and AWHs who are expected to render such important services to the society.

The Judge additionally held that since Anganwadi centres have become an extended arm of the Government, it operates as an establishment or a wing of the Government. Also, the remuneration to AWWs and AWHs is paid by the State Government being received from the Central Government. Also, the occupation is carried out in the establishments of Anganwadi centres. Hence, the Anganwadi centre is an establishment under Section 2(e) of the Contract Labour Act.

The Judge also held that Anganwadi centres are establishments under Section 1(3)(b) of the 1972 Act and the honorarium paid to AWWs and AWHs will be covered under the definition of wages under the 1972 Act.

In the light of these observations, Justice Oka held that the 1972 Act will apply to Anganwadi centres and in turn to AWWS and AWHs. In this context, it was observed –

"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."

Justice Oka finally allowed the appeals and set aside the impugned order of the Division Bench of the Gujarat High Court.

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