2011(2) ALL MR 627
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
V.C. DAGA AND A.B. CHAUDHARI, JJ.
Sau. Vidya W/O. Vishnu Vanare Vs. State Of Maharashtra
Writ Petition No.5675 of 2010
23rd December, 2010
Petitioner Counsel: Shri. K. S. NARWADE
Respondent Counsel: Ms. TAJWAR KHAN
Other Counsel: Ku. K. K. PATHAK
Constitution of India, Art.226 - Industrial Disputes Act (1947), Ss.2(2), 2(j) - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), S.1 - Alternative remedy - Availability of - Anganwadi workers or Anganwadi helpers - Are workers in term of S.2(s) and Anganwadis are "industry" within meaning of S.2(j) of 1947 Act - They can approach Labour Court for enforcement of Govt. Resolution Dt.12-3-2008 through Zilla Parishad - Since their honorarium is very meagre 1000/- to 1200/- p.m. - They should not rush to High Court for enforcement of their rights - Alternative and efficacious remedy available under law - High Court cannot exercise its extra ordinary jurisdiction - As pendency of cases in Labour Courts is considerably low, there are chances of getting justice earlier, brighter. AIR 1960 SC 610 - Rel. on. (Paras 8, 10)
Bangalore Water Supply and Sewerage Board Vs. A. Rajappa, 1978 SCC (L & S) 215 [Para 8]
State of Bombay Vs. Hospital Mazdoor Sabha, AIR 1960 SC 610 : (1960)1 LLJ 251 [Para 8]
State of Karnataka Vs. Ameerbi, 2006(13) Scale 319 [Para 9]
2. In the present petition, the petitioner is seeking implementation of Government Resolution dated 12.3.2008 in her case to be made by the Zilla Parishad, Buldhana i.e. by appointing her to the post of Anganwadi Sevika.
3. It has been observed by this Court that Anganwadi helpers and Anganwadi Sevikas who hardly get honorarium @ Rs.1,000/- to 1200/- per month and who work in rural areas straightway rush to this Court invoking the jurisdiction under Article 226 of the Constitution of India in the matters pertaining to their employment i.e. termination, regularization etc.. In the instant case, we find that the petitioner claims that she has been working as Anganwadi helper since 1.11.2001 by an order of appointment made by the Zilla Parishad, Buldhana. According to her, in the year 2007 Anganwadi Sevika working at Mouza Dhanora (Bk) Tq. Nandura District Buldhana resigned and as such her post fell vacant since 5.8.2007. According to the petitioner she has been working as Anganwadi helper in the same centre since 6.10.2007 and in fact has been working incharge of the post on Anganwadi Sevika due to the said vacancy caused by resignation. It is her case that under the Government Resolution dated 12.3.2008 she is entitled to be appointed being eligible and qualified to the said post of Anganwadi Sevika and thus there is a failure on the part of respondent No.2 - Zilla Parishad to implement the said Government Resolution dated 12.3.2008 despite her repeated reminders and representations. According to her, her case was also recommended accordingly by the concerned officers but to no use.
4. Having heard learned Counsel for the petitioner and Ku. K.K. Pathak, appointed by this Court as 'Amicus Curiae', we find that Integrated Child Development Services Scheme (hereinafter referred to as ("ICDS Scheme") was launched in the year 1975 with the following objectives and services to be given.
"OBJECTIVES :- The Integrated Child Development Services (ICDS) Scheme was launched in 1975 with the following objectives :
i. to improve the nutritional and health status of children in the age-group 0-6 years;
ii. to lay the foundation for proper psychological, physical and social development of the child;
iii.to reduce the incidence of mortality, morbidity, malnutrition and school dropout;
iv. to achieve effective co-ordination of policy and implementation amongst the various departments to promote child development; and
v. 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.
SERVICES :- The above objectives are sought to be achieved through a package of services comprising:
i. supplementary nutrition,
iii. health check-up,
iv. referral services,
v. pre-school non-formal education and
vi. nutrition & health education.
Three of the six services namely Immunisation, Health Check-up and Referral Services delivered through Public Health Infrastructure under the Ministry of Health & Family Welfare."
"THE ICDS TEAM :- The ICDS team comprises the Anganwadi Workers, Anganwadi Helpers, Supervisors, Child Development Project Officers (CDPOs) and District Programme Officers (DPOs). Anganwadi Worker, a lady selected from the local community, is a community based frontline honorary worker of the ICDS Programme. She is also an agent of social change, mobilizing community support for better care of young children, girls and women. Besides, the medical officers, Auxiliary Nurse Midwife (ANM) and Accredited Social Health Activist (ASHA) form a team with the ICDS functionaries to achieve convergence of different services."
"STATUS OF ANGANWADI WORKERS AND HELPERS:-
Anganwadi Workers (AWWs) & Anganwadi Helpers (AWHs), being honorary workers, are paid a monthly honoraria as decided by the Government from time to time. Government of India has enhanced the honoraria of these Workers, w.e.f. 1.4.2008 by Rs.500 above the last honorarium drawn by Anganwadi Workers (AWWs) and by Rs.250 of the last honorarium drawn by Helpers of AWCs and Workers of Mini-AWCs. Prior to enhancement, AWWs were being paid a monthly honoraria ranging from Rs.938/- to Rs.1063/- per month depending on their educational qualifications and experience. Similarly, AWHs were being paid monthly honoraria of Rs.500/- In addition to the honoraria paid by the Government of India, many States/UTs are also giving monetary incentives to these workers out of their own resources for additional functions assigned under other Schemes."
"Role and responsibilities of AWWs
i. To elicit community support and participation in running the programme.
ii. To weigh each child every month, record the weight graphically on the growth card, use referral card for referring cases of mothers/children to the subcentres/PHC etc., and maintain child cards for children below 6 years and produce these cards before visiting medical and para-medical personnel.
iii. To carry out a quick survey of all the families, especially mothers and children in those families in their respective area of work once in a year.
iv. To organise non-formal pre-school activities in the anganwadi of children in the age group 3-6 years of age and to help in designing and making of toys and play equipment of indigenous origin for use in anganwadi.
v. To organise supplementary nutrition feeding for children (0-6 years) and expectant and nursing mothers by planning the menu based on locally available food and local recipes.
vi. To provide health and nutrition education and counseling on breast-feeding/Infant & young feeding practices to mothers. Anganwadi Workers, being close to the local community, can motivate married women to adopt family planning/birth control measures.
vii. AWWs shall share the information relating to births that took place during the month with the Panchayat Secretary/Gram Sabha Sewak/ANM whoever has been notified as Registrar/Sub-Registrar of Births & Deaths in her village.
viii. To make home visits for educating parents to enable mothers to plan an effective role in the child's growth and development with special emphasis on new born child.
ix. To maintain files and records as prescribed.
x. To assist the PHC staff in the implementation of health component of the programme viz. immunisation, health check-up, ante natal and post natal check etc.
xi. To assist ANM in the administration of IFA and Vitamin A by keeping stock of the two medicines in the Centre without maintaining stock register as it would add to her administrative work which would effect her main functions under the scheme.
xii. To share information collected under ICDS Scheme with the ANM. However, ANM will not solely rely upon the information obtained from the records of AWW.
xiii. To bring to the notice of the Supervisors/CDPO any development in the village which requires their attention and intervention, particularly in regard to the work of the coordinating arrangements with different departments.
xiv. To maintain liaison with other institutions (Mahila Mandals) and involve lady school teachers and girls of the primary/middle schools in the village which have relevance to her functions.
xv. To guide Accredited Social Health Activists (ASHA) engaged under National Rural Health Mission in the delivery of health care services and maintenance of records under the ICDS Scheme.
xvi. To assist in implementation of Kishori Shakti Yojana (KSY) and motivate and educate the adolescent girls and their parents and community in general by organzing social awareness programmes/campaigns etc..
xvii. AWW would also assist in implementation of Nutrition Programme for Adolescent Girls (NPAG) as per the guildelines of the Scheme and maintain such record as prescribed under the NPAG.
xviii. Anganwadi Worker can function as depot holder for RCH Kit/contraceptives and disposable delivery kits. However, actual distribution of delivery kits or administration of drugs, other than OTC (Over the Counter) drugs would actually be carried out by the ANM or ASHA as decided by the Ministry of Health & Family Welfare.
xix. To identify the disability among children during her home visits and refer the case immediately to the nearest PHC or District Disability Rehabilitation Centre.
xx. To support in organizing Pulse Polio Immunization (PPI) drives.
xxi. To inform the ANM in case of emergency cases like diahorrea, cholera etc.
Role and responsibilities of Anganwadi Helpers
(i) To cook and serve the food to children and Masters.
(ii) To clean the Anganwadi premises daily and fetching water.
(iii) Cleanliness of small children.
(iv) To bring small children collecting from the village to the Anganwadi."
8. Looking to the above functions of these Anganwadi Sevikas and workers, prescribed by the Government and the very scheme which is in vogue since 1975 and the activities under the said scheme, we are of the view that the Anganwadi Sevikas and Anganwadi helpers and in particular the present petitioner are 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and the scheme under which they are performing their work, nature of which has already been given by us above is nothing but an 'industry' within the meaning of definition of 'industry' as per Section 2(j) of the Industrial Disputes Act, 1947. We have no doubt that ICDS Scheme is systematic activity in which there is a cooperation between employer and employee. We also find that the said function under the ICDS Scheme does not fall within the meaning of the term 'sovereign function' as explained by the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others, reported in 1978 Supreme Court Cases (L & S) 215 .
In the said decision in the case of Bangalore Water Supply and Sewerage Board (Supra) the case of State of Bombay Vs. Hospital Mazdoor Sabha, AIR 1960 SC 610 : (1960)1 LLJ 251 was considered. We have therefore no doubt that the petitioner is a 'workman' and the establishment in which she has been working under respondent No.2 - Zilla Parishad, namely, ICDS Scheme is an 'industry'.
9. In the case of State of Karnataka & Ors. Vs. Ameerbi & Ors., reported in 2006(13) Scale 319, the Hon'ble Supreme Court has held that Anganwadi workers under the said ICDS Scheme are not the holders of any civil posts and it is in that background the Hon'ble Supreme Court held that the Administrative Tribunal constituted under the Administrative Tribunals Act, 1985 will not have jurisdiction to entertain application under the said Act. Thus, from this judgment, it is clear that the Administrative Tribunal has no jurisdiction to entertain application under Section 15 of the Administrative Tribunals Act for any relief.
10. We are aware that the State of Maharashtra has established Labour and Industrial Courts in each District in the State, pursuant to its policy to reach the justice at the door steps of the litigants with the object of saving the expenditure of the poor litigants coming to the High Court directly. As earlier stated by us, honorarium received by Anganwadi workers or Anganwadi helpers is hardly ranging from Rs.1,000/- to Rs.1200/- and therefore, there is no reason why such poor workmen should rush to this Court instead of availing effective alternate remedy which is available more speedily under the provisions of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971. We also would like to add that the pendency of the cases in the Labour and Industrial Courts in the State of Maharashtra and in particular in the areas other than Mumbai and Greater Mumbai has considerably reduced in the recent point of time and therefore, there is every hope of getting expeditious disposal of the cases. In view of the aforesaid alternate remedy and in view of the fact that the petitioner alike Anganwadi Sevikas and Anganwadi helpers get honorarium ranging from Rs.1,000/- to Rs.1200/- per month, we hold that the petitioner has a remedy to approach the Industrial Court in her District for implementation of the said Government Resolution dated 12.3.2008. We also hold that the remedy of approaching the Labour Court under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 in case of termination being available, this Court would not entertain the writ petition in its extraordinary jurisdiction particularly when the said effective alternate remedy is available.
We record our appreciation for the services rendered by Advocate Ku. K. K. Pathak acting as 'Amicus Curiae'.