Hunger feels like pincers, like the bite of crabs;
it burns, burns, and has no fur.
Let us sit down soon to eat with all those who haven't eaten;
let us spread great tablecloths, put salt in lakes of the world,
set up planetary bakeries, tables with strawberries in snow,
and a plate like the moon itself from which we can all eat.
For now I ask no more than the justice of eating.
- “The Great Tablecloth” Pablo Neruda
On April 25, 2022, the Supreme Court passed an important judgment in the case of Maniben Maganbhai Bhariya vs. District Development Officer Dahod and Others, holding that Anganwadi Workers (AWWs) and Anganwadi Helpers (AWHs) are entitled to the benefits under the Payment of Gratuity Act, 1972. This judgment, recognising Anganwadi workers and helpers as workmen and their legal right to gratuity, in itself, represents a major victory for the nation-wide movement of the Anganwadi workers and helpers and is a result of their fearless struggle over the past few decades. Most recently AWWs/AWHs, across the country, participated in great strength in the nation-wide General Strike on March 28-29, 2022.
The facts of the case are necessary to understand the determination with which Maniben Maganbhai Bhariya and four other AWWs and AWHs have pursued this litigation. The five of them 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 Controlling Authority under the Payment of Gratuity Act, 1972, which granted them gratuity by holding that Anganwadi Workers (AWWs) and Anganwadi Helpers (AWHs) are entitled to gratuity. The said order was challenged by the State before the Appellate Authority, which dismissed these appeals and confirmed that the AWWs/AWHs are entitled to gratuity. The State further challenged this before the High Court of Gujarat, wherein the Single Bench dismissed their case vide judgment dated 6th June 2016. However, the State further challenged the Single Bench order before the Division Bench of the High Court of Gujarat, which allowed the State’s appeal. The Division Bench vide judgement dated 8th August 2017 held that AWWs/ AWHs could not be said to be employees and the ICDS project cannot be said to be an industry. Further it held that as the remuneration or honorarium paid to them cannot be treated as wages, they are disentitled to gratuity.
It is this judgment dated 8th August 2017 that these workers and the Gujarat Anganwadi Karmachari Sangathan challenged in the Supreme Court, which has now held that AWWS/AWHs are entitled to gratuity. The Supreme Court, thereafter has directed that the State of Gujarat shall, within a period of three months from the date of the judgment (25th April 2022), take all necessary steps by the concerned authorities to extend benefits of the said Payment of Gratuity Act, 1972 to the eligible AWWs and AWHs in the state of Gujarat and further directed that all eligible AWWs and AWHs shall be entitled to simple interest @ 10% per annum.
Besides upholding this right to gratuity of the AWWs/AWHs, there are certain crucial aspects of this Supreme Court judgement which need to be emphasised.
- Role of AWWs/AWHs: The Supreme Court has accorded the highest recognition to AWWs/AWHs by recognising them that these “frontline women workers are the backbone of the ICDS”, who facilitate child nutrition besides fighting malnutrition, “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.”. The Court recognises that it is the AWWs/AWHs that are instrumental in the effective implementation of the State’s duties and responsibilities under the National Food Security Act, 2013. The Court has also recognised that it is the AWWs/AWHs who discharge the State’s obligations of providing pre-primary education to children of the age group of 3 to 6 years under section 11 of the Rights of Children to Free and Compulsory Education Act, 2009 (RTE Act).
- Full-time job: In view of the abovesaid role of the AWWs/AWHs, the Court has concluded that AWWs and AWHs perform statutory duties and the posts of AWWs and AWHs are statutory posts. The Court has also concluded that in view of the duties performed by the AWWs/AWHs, it can no longer be said that they are “part of any temporary scheme of ICDS” and it “cannot be said that the employment of AWWs and AWHs has temporary status”. The Court has explicitly concluded that it is “impossible to accept the contention that the job assigned to AWWs and AWHs is a part-time job. Considering the nature of duties specified thereunder, it is full-time employment.”.
- Honorarium or wages?: The Supreme Court has conclusively rejected the oft-repeated argument of the Government that AWWs/AWHs are paid honorarium and do not receive wages. To quote: “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.”.
- Correcting its own historic injustice: Every AWW/AWH and their organisation knows of the injustice caused to their cause by the 2007 Ameerbi judgment of the Supreme Court. In this case, the Supreme Court held that the posts of AWWs were not statutory posts and the same have been created in terms of ICDS and that there was no relationship of employer and employee between the State Government and AWWs. However, the Supreme Court in the present case, has effectively diluted and nullified the Ameerbi judgment. The Supreme Court has now held that: “Much water has flown after 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.”. As such the Supreme Court has not recognised that AWWs and AWHs perform statutory duties and the posts of AWWs and AWHs are statutory posts.
- Taking judicial notice of the demands of AWWs/AWHs and directing the Government to consider them: The Supreme Court has pointed out the unjust and dismal conditions of service of AWWs/AWHs and directed the Union Government take appropriate measures to ameliorate their situation. The Court has held that AWWs/AWHs “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.” Further the Court has held that the time has come when the Central Government/State Governments has to collectively come to find out “modalities in providing better service conditions” commensurate to the nature of job discharged by them. The Supreme Court has noted 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/- while AWWs working in mini-Anganwadi centres are being paid a sum of Rs.4,400/- per month. After noting this the Court concludes as follows: “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.”
The fundamental issue though is the resistance put up by the BJP Governments at the Centre and State to the struggle of the AWWs and AWHs, even in Court. The abovesaid findings of the Supreme Court were in rejection of the arguments forwarded by Advocate Aastha Mehta, who appeared on behalf of the State of Gujarat and Ms. Aishwarya Bhati, the Additional Solicitor General who appeared on behalf of the Union of India. The fundamental aspect cannot be ignored, that the BJP government fought tooth and naila against AWWs/AWHs getting their due rights. Indeed, this judgment affirms that the BJP governments at the Centre and State have suffered a telling blow at the hands of the sustained struggle of the AWWs and AWHs. The BJP government at the Centre must respect the conclusions of the Supreme Court, and the demands of AWWs/AWHs and immediately take all necessary steps to recognise grant them status of employees, revise their wages and declare better conditions of service on par with government servants.
We can safely assume that the BJP government will not do this and a big battle lies ahead. Intensified struggles must be waged to compel the BJP to obey the Supreme Court order and meet the demands of AWWs/AWHs.
(Liberation, July 2022)