Read Time: 18 minutes

The Supreme Court on Monday directed the authorities of the State of Gujarat to extend the benefits to eligible Anganwadi workers (AWWs) and Anganwadi Helpers (AWHs) under the Gratuity Act, 1972.

An appeal was filed by the Anganwadi workers before the Hon’ble Supreme Court as to whether AWWs and AWHs appointed to work in Anganwadi centers set up under the Integrated Child Development Scheme (ICDS) are entitled to gratuity under the Payment of Gratuity Act, 1972.

A single-judge bench of Justice Abhay S. Oka while allowing the appeal stated that all eligible AWWs and AWHs shall be entitled to the simple interest @ 10% per annum from the date specified under subsection 3A of Section 7 of the 1972 Act.

Earlier, a division bench of the Gujarat High Court held that AWWs and AWHs could not be said to be employees as per Section 2(e) of the 1972 Act, and the ICDS project cannot be said to be an industry. It was further 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 learned Senior counsel Sanjay Parikh and P.V Surendranath appearing for the appellants submitted that the Gratuity Act 1972 is a social security welfare legislation and 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.

It was added that Anganwadi centers set up under ICDS are ‘establishments’ within the meaning of clause (b) of Section 1(3) of the 1972 Act and that 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.

It was further submitted that merely because the monthly remuneration paid to AWWs is styled as honorarium, it cannot be conclusive. Under Section 2(s) of the 1972 Act, the definition of ‘wages’ is very wide to include both categories. AWWs and AWHs are doing full-time jobs involving multiple duties concerning women and children.

On the contrary, the learned counsel Aastha Mehta appearing for the State of Gujarat submitted that ICDS is a Central Government scheme and the AWWs and AWHs are appointed from amongst local inhabitants.

It was pointed out that the honorarium payable to AWWs and AWHs has been enhanced in the year 2020 and that though the share of the Central Government in the honorarium has not been increased, under the Government Resolution dated March 21, 2020, the State Government has increased its contribution, and now the remuneration of AWWs is Rs.7,800 per month.

It was further pointed out that there are 53,029 Anganwadi centers established under the ICDS in the State of Gujarat, and presently there are about 51,560 AWWs and 48,690 AWHs in the entire State. If gratuity is held to be payable to them, there will be a substantial financial burden on the State exchequer as the amount payable towards gratuity will be more than Rs.25 crores.

The Learned Addl. Solicitor General of India (ASG) Aishwarya Bhati submitted that while the Government of India acknowledges the important role of Anganwadi centers in implementing the ICDS scheme and consequently the role of AWWs and AWHs, the provisions of the 1972 Act do not apply to them.

ASG pointed out that clause (b) of Section 1(3) refers to ‘establishments’ within the meaning of any law for the time being in force concerning shops and establishments in a State and therefore, in this case, the provisions of Gujarat Shops and Establishments Act, 1948.

ASG while referring to the definitions of ‘commercial establishments’ and ‘establishments’ under the Gujarat Act, 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.

On the role of Anganwadi workers and helpers stated that “the AWWs and AWHs constitute the backbone of Anganwadi centers and therefore, this onerous responsibility of extending benefits under the 2013 Act to the beneficiaries is on them. Anganwadi centers 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.”

“The educational activity of running preschool is an integral part of Anganwadi centers. AWWs and AWHs who are managing the Anganwadi centers have a duty to look after preprimary schools as well”, the bench added.

“We may also note here that on 8th March 2018, the Government of India has launched the National Nutrition Mission by the name “The Prime Minister’s Overarching Scheme for Holistic Nourishment”. The responsibility of implementing a part of the scheme is of the Anganwadi centers. 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 centers”, the court stated.

The court on the plight of AWWs and AWHs was of the view that it is 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”, court noted.

Court further added that “in the State of Gujarat, AWWs are being paid monthly remuneration of only Rs.7,800 and AWHs are being paid monthly remuneration of only Rs.3,950/. AWWs working in mini Anganwadi centers are being paid a sum of Rs.4,400 per month. The important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers have been assigned to them. In addition, there is a duty to render preschool education. For all this, they are being paid very meager 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”, the court stated.

On the applicability of the provisions of the Gratuity Act, 1972 to AWWs and AWHs court referred to Section 2(e) of the Contract Labour (Regulation and Abolition) Act, 1970 which reads as:

“(e) "establishment" means

i) any office or department of the Government or a local authority, or

ii) any place where any industries, trade, business, manufacture or occupation is carried on.”

The bench added, “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”.

The court was of the view that the Anganwadi centers have been employing ten or more AWWs and AWHs in the State. Therefore, I have no manner of doubt that Anganwadi centers are establishments contemplated by clause (b) of subsection (3) of Section 1 of the 1972 Act.

Conclusively, the court stated that “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 centers are not under the control of the Central Government. Therefore, the State Government will be an appropriate Government within the meaning of clause (a) of Section 2 of the 1972 Act. Accordingly, a person or authority appointed by the appropriate Government for the supervision and control of AWWs and AWHs will be the employer within the meaning of clause (f) of Section 2.”

“The Government of India by a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of subsection (3) of Section 1 of the 1972 Act”, court added.

Therefore, the court stated that “I have no manner of doubt that the 1972 Act will apply to Anganwadi centers and in turn to AWWs and AWHs. In the impugned Judgment, the Division Bench was swayed by the view taken by this Court.”

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 centers. Within 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”, court-ordered.

Case Title: Maniben Maganbhai Bhariya v. District Development Officer Dahod & Ors.