Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. Act, 1972 on the genre of statutes like The Minimum Wages Act, Employees State Insurance Act, etc. is a welfare measure to secure social and economic justice to employees to assist them in old age and to ensure them a decent standard of life on retirement.
8. Derived from a Latin word ‘Gratuitas’, the term Gratuity means a ‘Gift.’ In the industrial sector, gratuity is considered as a gift from the employers to their employees. Gratuity is a lump sum payment paid by an employer to the employee for his/her past dedicated services. It is a gesture to appreciate the efforts of a person towards the betterment, development and prosperity of an establishment and that is the reason for which gratuity is considered to be a social security, and with passage of time, it has become a statutory obligation on the part of employers.
9. Thus, gratuity, as a social welfare legislation, its effective implementation is of paramount importance to fulfil the legitimate expectation of the employees. So far as the unorganized sectors are concerned, these Acts have been pillars in social security and laid the foundation for improvement in standards of living of the employees.
10. The Act 1972 is a social security legislation to wage earning population in industries, factories and establishments, etc. Therefore, considering the inflation and wage increase even in case of employees engaged in private sector, the Government decided that the entitlement of gratuity should be revised in respect of employees who are covered under Act, 1972 and accordingly, the Government initiated the process for amendment to Act, 1972 to increase the maximum limit of gratuity to such amount as may be notified by the Central Government from time to time.
11. This will indeed ensure harmony amongst employees in the private sector and in Public Sector Undertakings/Autonomous Organizations under Government who are not covered under CCS (Pension) Rules. These employees will be entitled to receive higher amount of gratuity may not be at par with their counterparts in Government sector.
12. That appears to be the reason for which amendments are made in the year 2007 to widen the definition of the term “employee” and to bring under its fold the large number of employees working in various establishments employed for wages or in any kind of work or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or any other establishment. Even by later notification, teachers have also been held eligible to claim gratuity. MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD [AJAY RASTOGI, J.]
13. When social security legislations are being interpretated, it always has to be interpreted liberally with a beneficial interpretation and has to be given the widest possible meaning which the language permits, known as Beneficial Interpretation. When a statute is meant for the benefit of a particular class and if a word in the statute is capable of two meanings, i.e., one which would preserve the benefits and one which would not, then the former is to be adopted.
14. Maxwell on Beneficial Construction holds the following: “The construction of a statute must not strain the words as to include cases plainly omitted from the natural meaning of the language. Nevertheless, even where the usual meaning of the words falls short of the object of the legislature, a more extended meaning will be attributed to them if they are fairly susceptible to it. The relaxation of strictly literal rule of interpretation is known as beneficial construction.”
15. This Court had an occasion to examine discussions in detail about constructive and welfare legislations. The judgment in State Bank of India Vs. Shri N. Sundara Money1 followed with Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others2; Sant Ram Vs. Rajinder Lal and others3 and later the Constitution Bench in Steel Authority of India Ltd. and others Vs. National Union Waterfront Workers and others4 are the exposition of law on the subject.
16. When we examine the judicial precedents while interpreting the Act 1972, we come across certain judgments of this Court in State of Punjab Vs. Labour Court, Julludur and others5; Ahmedabad Private Primary Teachers’ Association Vs. Administrative Officer and others6; Jaya Bachchan Vs. Union of India and others7; State of Karnataka and others Vs. Ameerbi and others8 and Birla Institute of Technology Vs. State of Jharkhand and others9 may be in the different context. 1 1976(1) SCC 822 2 1978(2) SCC 213 3 1979(2) SCC 274 4 2001(7) SCC 1 5 1980(1) SCC 4 6 2004(1) SCC 755 7 2006(5) SCC 266 8 2007(11) SCC 681 9 2019(4) SCC 513
17. While adverting to the facts of the instant cases, it manifests from the record that the five appellants joined as Anganwadi workers/ helpers between the period 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:-
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 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 MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD [AJAY RASTOGI, J.] 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 programme for early childhood care and development, covering over 158 million children as per 2011 census, and pregnant and lactating mothers in the country. If we go as per the statistics as of June 2018, there were 1.36 million functional Anganwadi centres spread across all the districts in the country. These districts are staffed by frontline health staff: one Anganwadi worker and one Anganwadi helper. Majority of these centres are located in difficult terrains and these women have to trek for kilometres every day to discharge their duties. In the pandemic, these workers took the additional duty to 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.
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 concerned. “Socialised childcare” also contributes to the liberation of women: it lightens the burden of looking after children, provides a potential source of remunerated employment for women and gives them an opportunity to build women’s organizations. In light of these rich contributions of childcare to social progress, ICDS deserves far greater attention in public policy since ICDS acts as an institutional mechanism for realization of child and women rights. Yet these services are regarded as State largesse rather than as enforceable entitlements.
21. If we take a holistic view of the matter, extending social security to the early child care and development of millions of 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 consensus among psychologists, educationists, pediatricians and sociologists regarding the significance of early years of life for the optimum development of child. Early childhood is a time of remarkable brain development that lays the foundation for later learning and any damage or impoverishment suffered at this stage is likely to be irreparable. These are years of extreme vulnerability and tremendous potential during which adequate protection, care and stimulation are essential to provide the foundation for the child’s well- being and development. A lack of adequate nutrition and proper care has irreversible consequences. Poor nutrition has a negative impact on school enrollment and readiness. Undernourished children are less likely to enroll in school and would drop out, if enrolled. A severe or chronic lack of essential nutrients in childhood impairs language, motor and socioemotional development. In addition, extending the provision of safe drinking water and proper sanitation would reduce infant and child mortality drastically.
23. When we talk about fundamental rights and rights of children under six years, recognizing the significance of child-care and development in realizing the goal of national progress, the Founding Parents enacted several provisions concerning welfare and development of children, especially in Parts III and IV of the Constitution. The Fundamental Rights and Directive Principles of State Policy have provided an inspiration to all legislations concerning child welfare, education and development.
24. Article 15(3) provides for affirmative action for women and children and is of great significance under which several beneficial laws and programmes have been passed. Jurisprudence developed by passage of time under Article 21 of the Constitution by this Court underlines the primary importance of early childhood developments. As right to food, nutrition and health have been judicially crafted as being part and parcel of the Right to Life to which every citizen, including a child is entitled to. It is taking this approach that right to free education up to the age of 14 years was read into Article 21 by this Court in Unni Krishnan J.P. and others Vs. State of Andhra Pradesh and others10. 10 (1993)4 SCC 111 MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD [AJAY RASTOGI, J.]
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, 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 or strength”. At the same time, Article 39(f) requires the State to ensure that “the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the childhood and youth are protected against exploitation and against moral and material abandonment.”
27. Article 45 provides that “the State shall endeavor to provide early childhood care and education for all children until they complete the age of six years”. This provision makes the right to early childhood care and education an explicit Constitutional Objective, which can be further supported by later enactment in October 2010, i.e., the Right of Children to Free and Compulsory Education Act, 2009 (RTE), that came to be introduced “with a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government may make necessary arrangement for providing free 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 constitutes the most basic and fundamental right of children. Absence of legally enforceable entitlements makes children especially under-six more vulnerable to neglect and discrimination.
29. At the same time, health, especially the reproductive health of the mother and the health of the infant child are closely related. Recognizing this close relationship, this Court in a petition (popularly known as petition for right to food) filed by the PUCL held Central and State Government responsible for providing ICDS services including supplementary nutrition, nutrition and health, education, etc. not only to every child under the age of six but to pregnant women and lactating mothers as well – a clear endorsement of binding relation of mother and child’s health.
30. Further recognizing the special needs of pregnant and lactating mother and its relation to child’s health, which has been acknowledged and recognized under Section 4 of the National Food Security Act, 2013 wherein provisions have been made entitling such women to “meal, free of charge during pregnancy and six months after the child-birth, through local Anganwadi, so as to meet the nutritional standards specified in Schedule II of the Act.”
31. The vision of ICDS scheme is to empower women living with dignity to contribute as equal partners in development in an environment free from violence and discrimination along with well nurtured children with full opportunities for growth and development in a safe and protective environment.
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 the age group 0-6 years, which, as already observed, constitutes around MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD [AJAY RASTOGI, J.] 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 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 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 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; 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 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 point to the fact that effective implementation of the aforementioned provisions of the Act largely depends on the Anganwadis, which are run by Anganwadi workers/helpers, etc., who are village level workers/ward level workers and in charge for delivery of the various services envisaged under the Act.
37. Their daily tasks include taking responsibility for pre-school 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 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 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.
41. The other argument which has been advanced by the learned counsel for the respondents denying them parity with other employees is that their work is stated to be of a community participation and their names are neither sponsored from the employment exchange nor they are bound by the code of conduct. The further objection raised is that posts have been filled up without advertisement and there is no requirement to comply with any statutory recruitment rules.
42. It may be relevant to note that the contribution of Anganwadi workers/helpers at the grassroot level under the ICDS scheme is being well acknowledged by the Government of India, Ministry of Women and MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD [AJAY RASTOGI, J.] 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, involving Community/women’s groups/Mahila Mandals and for ensuring the effective convergence of various sectoral services. For restructuring and strengthening of ICDS, provisions have been made for rationalization of appointment of Anganwadi workers as Supervisors which is a cadre post under the Government.
43. The relevant part of the policy decision dated 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 their career prospects. The following guidelines on promotion and appointment of AWWs to the posts of Supervisors, in supersession of earlier guidelines, are conveyed to the States/UTs for compliance: (i) The 50% of vacancies in the posts of Supervisors would be filled up by promotion from amongst AWWs with 10 years of experience as AWWs and having the prescribed educational qualifications as per the Recruitment Rules for the post of Supervisor, failing which the vacancies would be filled up by direct recruitment; and (ii) The remaining 50% vacancies in the posts of Supervisors would be filled up by direct recruitment. It is requested that the States/UTs may amend recruitment Rules for the posts of Supervisors as per the above guidelines on urgent 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 merit list of the candidates who had participated in the selection process for post of Anganwadi workers/helpers shall be made and if any participant/applicant is dissatisfied or aggrieved by the process of selection held by the authorities, can prefer an appeal to the Committee constituted for the said purpose.
46. Further, those who are finally selected and appointed as Anganwadi workers/helpers shall be governed by the Code of Conduct and they could also to be terminated, if any misconduct being committed in discharge of duties or on attaining the age of superannuation.
47. Thus, the 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 the effective working of Anganwadi workers/helpers in various Anganwadi centres.
48. Learned counsel for the State has given much stress on the honorarium paid to the Anganwadi workers/helpers. Suffice it to say that the honorarium is basically the quantum of money offered/conferred to somebody who is especially a professional or a well honoured person for providing services. It is a voluntary process. However, what is being paid to Anganwadi workers/helpers with a nomenclature used by the respondents in projecting the term ‘honorarium’, is in fact the ‘wages’ that has been paid for the services rendered at the end of the month. It is the form of emoluments which is being earned on discharge of duty in accordance with the terms of employment defined under Section 2(s) of the Act 1972.
49. So far as the judgment in Ameerbi (supra) on which the Division Bench of the High Court has placed reliance is concerned, it was a case MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD [AJAY RASTOGI, J.] where the question raised for consideration was as to whether those who are appointed as Anganwadi workers/helpers are holders of civil posts and are entitled to seek protection of Article 311 of the Constitution. In that context, it was held by this Court that they are not holders of civil posts and protection of Article 311 of the Constitution is not available and that was the reason for which the application which was filed at the behest of Anganwadi workers/helpers under Section 15 of the Administrative Tribunal Act, 1985 was held to be not maintainable.
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 disadvantaged areas with limited sensitivity towards the delivery of services to such underprivileged groups, still being the backbone of the scheme introduced by ICDS, time has come to find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by them.
53. In my considered view, the appeals deserve to succeed and are accordingly allowed and the impugned judgment dated 8th August, 2017 of the Division Bench of Gujarat High Court being unsustainable in law is hereby set aside. Bibhuti Bhushan Bose Appeals allowed. (Assisted by : Shubhanshu Das, LCRA)