Delhi District Court
Welfare, Gnctd vs . Abaku & Ors. , Which Is Pending For ... on 12 May, 2022
1
IN THE COURT OF RAJIV MEHRA,
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-II,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
ID No.270/16
The workmen
as represented by
Akhil Bhartiya Anganwadi Kamgar Union (Regd.)
C/o Room No.95, Barrack 1/10,
Jam Nagar House,
Sahjahan Road,
New Delhi-110011 ......Workmen
Versus
M/s Directorate of Social Welfare
through its Director
N.C.T of Delhi
GLNS Complex, Delhi Gate,
New Delhi ......Management
Date of Institution : 10.09.2010
Date of Order : 12.05.2022
AWAR D
1.The Government of NCT vide its order dated 6.9.2010 has referred the industrial dispute with the terms of reference as under:-
"Whether the demand for getting extra wages/honorarium to the Anganwadi workers/helpers on the dates as per Annnexure "A" when they were called to perform extra work of Pulse Polio Immunization and Enumeration from the management is legal and/or justified and if so, what directions are necessary in this respect?"
22. The workmen through Union has submitted their claim statement stating therein that the Aganwadi workers and helpers performing the duty under the Integrated Child Development Service Scheme (ICDS) and the said work is related to Health Maternity and Child Welfare and the extra work have also been taken from these workmen like Pulse Polio Immunization & Enumeration by the NCT of Delhi. It is claimed that Health Maternity and Child Welfare is a schedule employment under the Minimum Wages Act 1948 and accordingly the Aganwadi workers and helpers are entitled to extra wages at double the rates under the said Act.
3. It is submitted that the Aganwadi workers and helpers were directed to perform their duties for extra work of Pulse Polio Immunization & Enumeration by the Govt. of NCT on Sunday/Holidays from 8.00 am to 4.00 pm being their rest day. The details of working on Sunday/Holidays are as under:-
Year : 1999 - 17.1.99, 24.10.99, 21.11.99 & 19.12.99 Year : 2000 - 24.1.2000, 26.3.2000, 24.9.2000, 15.11.2000 & 10.12.2000 Year : 2001 - 21.1.2001, 15.4.2001, 13.5.2001, 14.10.2001 &
2.12.2001 Year : 2002 - 20.1.2002, 14.4.2002, 19.5.2002, 29.9.2002 & 17.11.2002 3 Year : 2003 - 5.1.2003, 9.2.2003, 6.4.2003, 1.6.2003, 14.9.2003 & 9.11.2003 Year : 2004 - 4.1.2004, 22.2.2004, 4.4.2004, 23.5.2004, 4.7.2004, 10.10.2004 & 21.11.2004 Year : 2005 - 9.1.2005, 27.2.2005, 10.4.2005, 15.5.2005, 26.6.2005, 7.8.2005, 25.9.2005 & 27.11.2005 Year : 2006 - 15.1.2006, 26.2.2006, 9.4.2006, 21.5.2006, 10.9.2006 & 12.11.2006
4. Workmen are demanding the payment at double the rate under the Minimum Wages Act, 1948. The management has allowed and paid Rs. 150/- & Rs. 125/- to Aganwadi Workers and Helpers respectively in the year for performing their duties for extra work of Pulse Polio Immunization & Enumeration on Sunday/Holiday being a rest day.
5. It is claimed that Aganwadi Workers being skilled and Aganwadi Helpers being unskilled workmen are entitled for extra wages for extra work performed on the holiday and Sundays etc but the management denied the said payments.
6. It is claimed that the duty performed by the Aganwadi Workers and Helpers is covered in the schedule employment of Health Maternity and Child Welfare as per the notification Annexure-1. It is claimed that work of Aganwadi Workers and Helpers form part of such employment, entitled to the wages fixed for skilled and unskilled 4 workmen respectively by the appropriate Government under Section 2
(g) of the Minimum Wages Act, 1948.
7. It is claimed that the work which is being done by the Aganwadi Workers and Helpers is a branch of work forming part of such employment as Health Maternity and Child Welfare as the said work is included under the scheduled employment of local authorities as per Annexure-A.
8. The workmen have also appended relevant calculation chart alongwith the claim statement claiming that the workers and helpers are entitled for the net amount of Rs. 10,169/-and Rs. 8,867/- respectively from the management for the work performed by them.
9. It is prayed that an Award may be passed directing the management to pay double overtime for the work performed by the Aganwadi Workers and Helpers on the dates as per Annexure IV & V attached with the claim petition.
10. Management has filed the written statement on record stating that the present statement of claim is not maintainable in view of the fact that the same is pre-mature as the Directorate of Social Welfare has already preferred a WPC No.5444/2002 titled Director of Social Welfare, GNCTD Vs. Abaku & Ors. , which is pending for disposal before the Hon'ble High Court of Delhi and till the disposal of the said 5 writ petition by the Hon'ble High Court of Delhi, the present statement of claim may kindly be adjourned sine-die.
11. Even on merits of the case the management has denied the claim stating that the Aganwadi Workers and Aganwadi Helpers work willingly for the pulse polio immunization and are being paid additional honorarium by the Health Department, Govt. of NCT of Delhi for the period of Pulse Polio Immunization days. They are also being granted compensatory holiday in lieu of working on Sundays/Holidays.
12. It is submitted by the management that one of the services under ICDS Scheme is the health check up and immunization for achieving the objectives of the scheme. The aim of the Pulse Polio Immunization campaign is the eradication of Polio. Routinely, under the ICDS Scheme, the health services to the beneficiaries are being delivered by the Health Department, GNCTD. Therefore, besides the Aganwadi Workers and Aganwadi Helpers many other voluntary workers also participate actively in the Pulse Polio programme conducted by the Health Department. These include Local Volunteers, School Children, Opinion Leaders, NGOs, Education Department (Teachers) etc., they are also being paid at the same rate as in case of Aganwadi Workers & Helpers. Therefore, this work of Pulse Polio does not entitle Aganwadi Workers & Helpers for extra payment, that the one referred to above.
613. It is stated that Aganwadi Workers and Aganwadi Helpers are performing the duties under the ICDS Scheme of Govt. of India, Ministry of Women & Child Development but they are not working under Health Maternity and Child Welfare Employment. ICDS programme being a centrally sponsored scheme is uniformly applicable throughout India. The Govt. of NCT of Delhi is only an implementing agency for implementation of ICDS services as per norms and guidelines of Govt. of India and accordingly, as prescribed, the Aganwadi Workers/Aganwadi Helpers do not fall under the definition of workman and therefore not entitled for wages but are only honorary workers.
14. The management has denied that there is a violation of Minimum Wages Act as claimed by and on behalf of the workmen.
15. It is claimed that Minimum Wages Act is not applicable in the case of Aganwadi Wrokers and Aganwadi Helpers.
16. The workmen had filed the rejoinder wherein they have reiterated the contents of the written statement.
17. Vide order dated 15.5.2012, the following issues were framed:-
ISSUES
1. Whether present reference is pre-mature? OPM
2. As per terms of reference.7
18. In support of its case, workmen has examined Smt. Raj Kumari, General Secretary of the Union as WW-1. WW-1 has been cross examined by the opposite AR on 24.9.2015.
19. In support of its case, management has examined Mrs. Vijaya Bharti, Child Development Project Officer (CDPO) as MW-1. Her affidavit of evidence is Ex.MW1/A. Her cross examination was closed vide order dated 2.8.2018 for her repeated absence.
20. This Tribunal has heard the AR(s) for the parties at length and has perused the records carefully.
21. Issue wise disposal is as under:-
ISSUE NO.1 - Whether present reference is pre-mature? OPM
22. From the record, it may be noted that alongwith affidavit of MW-1, a copy of the order passed by Hon'ble Delhi High Court in the matter of Department of Social Welfare Vs. Akhil Bhartiya Anganwari Kamgar Union WP (C) 5872/2007 & CM Appln. No.10958/2007 has been filed. A perusal of this order date 7.2.2013 passed by our own High Court, the Court while dealing and analyzing the factual and legal position and also following a case of the Division Bench in the matter of Akhil Bhartiya Anganwadi Kamgar Union 8 (Regd.) Vs. Union of India & Ors decided on 27.5.2011 held that Anganwadi Workers and Helpers are not the workmen.
23. The aforesaid case of our own High Court further observed relying upon the judgment of the Hon'ble Supreme Court in the matter of State of Karnataka and Ors. Vs. Ameerbi and Ors. (2007) 11 SCC 681 and also relying upon the judgment of the Division Bench in the matter of Akhil Bhartiya Anganwadi Kamgar Union (Supra) is of the view that ICDS programme is not an Industry.
24. After the decision of our own High Court in the matter of Department of Social Welfare Vs. Akhil Bhartiya Anganwari Kamgar Union WP (C) 5872/2007 & CM Appln. No.10958/2007 (Supra), the plea that dispute is pre-mature till the decision in this case does not survive any more.
ISSUE NO.2 - As per terms of reference.
25. It may be noted that in supports of its claim the workmen have been relying upon an Award dated 22.7.1996 of Presiding Officer Industrial Tribunal-II, wherein the Learned Tribunal has awarded the relief to the workmen. However, in view of the judgment (Supra) of our own High Court, wherein, this Award has also been assailed and also the verdict of the Hon'ble Delhi High Court that Anganwadi Workers and Anganwadi Helpers are not the workmen as defined under Section 2 (s) 9 of Industrial Disputes Act, 1947, the terms of reference is answered in negative.
26. Copy of this award be sent to GNCT of Delhi for publication.
27. File be consigned to record room.
Dictated and Announced in the open Court on 12.05.2022.
( RAJIV MEHRA ) Presiding Officer Industrial Tribunal-II, Rouse Avenue District Court New Delhi