Gujarat High Court
Child Development Officer (Icds) vs State Of Gujarat on 9 May, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/4835/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4835 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
CHILD DEVELOPMENT OFFICER (ICDS)
Versus
STATE OF GUJARAT
Appearance:
MR MP PRAJAPATI(677) for the PETITIONER(s) No. 1
MR DEVNANI AGP (99) for the RESPONDENT(s) No. 1
HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 2
MRS KRISHNA G RAWAL(1315) for the RESPONDENT(s) No. 2
NOTICE SERVED(4) for the RESPONDENT(s) No. 1,3
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/05/2018
ORAL JUDGMENT
1. Heard Mr. Prajapati, learned advocate for the petitioner, Mrs. Krishna G. Rawal, learned advocate for the respondent No. 2 and Mr. Devnani learned AGP.
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2. Having regard to the facts of the case, Rule.
Returnable forthwith. Mrs. Krishna G. Rawal, learned advocate, and Mr. Devnani, learned AGP have waived service of Rule on behalf of the respondents and with their consent the petition is taken up for final order toady.
3. This petition is taken out by Child Development Officer under Integrated Child Development Scheme ("ICDS" for short) introduced by Government of India.
4. The petitioner Child Development Officer, ("CDO" for short) ICDS is aggrieved by award dated 27.11.2015 passed by learned Labour Court at Mehsana in Reference (LCM) No. 73 of 2010 whereby the learned Labour Court partly allowed reference and directed present petitioner to reinstate the claimant on her original post with continuity of service and 50% backwages.
5. So far as factual background is concerned, it has emerged from the record that the respondent claimed that she worked as Aganwadi Worker with the office of ICDS.
6. She also claimed that she worked with office of CDO, Page 2 C/SCA/4835/2016 JUDGMENT ICDS for almost 14 years and that despite her service of 14 years the said opponent (employer) illegally terminated her service by oral order dated 25.5.2010. With the said allegations present respondent raised industrial disputes and demanded that she should be reinstated with the opponent employer (Child Development Officer, ICDS) with all benefits.
6.1 Appropriate government referred the said dispute to learned Labour Court for adjudication vide order of reference dated 29.6.2010. On receipt of the order of reference learned Labour Court registered said order of reference as Reference (LCM) No. 73 of 2013. 6.2 Before learned Labour Court the claimant reiterated same allegations and demanded that she should be reinstated in service with all benefits.
6.3 Learned Labour Court adjudicated said reference and having reached to the conclusion that the opponent employer i.e. ICDS committed breach of Section 25F of Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act"), the learned Court directed the said opponent Page 3 C/SCA/4835/2016 JUDGMENT employer to reinstate the claimant on her original post and to pay 50% backwages.
6.4 With the said direction learned Labour Court passed award on 27.11.2015 which is challenged in present petition.
7. At the outset it is relevant to take into account the fact that this Court has held that the persons working under for implementation of the said scheme are not workman within the meaning of the said term defined under Section 2(s) of the I.D. Act.
8. Actually, in the decision in case of State of Karnataka vs. Ameerbi and others, 2007 (11) SCC 681, Hon'ble Apex Court held that the persons working as Anganwadi do not hold civil post and they are also not industrial workers. In the said decision Hon'ble Apex Court observed, inter alia, that:-
"29. Appointments made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention has not been drawn to any rule or regulation governing the mode of their recruitment. Some statements in this behalf have been made by the interveners but for the reasons stated hereinbefore, we cannot enter thereinto. A distinction must be made about a post created by the Central Government or the State Governments in exercise of their power under Articles 77 or 162 of the Constitution of India or under a statute vis-`-vis cases of this nature who are sui generis. Terms and conditions of services of an employee may be referable to acts of appropriate legislature. The matter may also come within the purview of Article 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum.
30. The result of an appointment being made in violation of the Constitutional Page 4 C/SCA/4835/2016 JUDGMENT scheme has recently been noticed by a Constitution Bench of this Court in Secretary, State of Karnataka and Others v. Umadevi (3)
31. One of the questions which was raised before us was in regard to the right of an Anganwadi worker to contest an election. They are indisputably free to do so. A holder of a civil post may not be entitled thereto.
32. In Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Another this Court while considering the provisions of Article 191(1)(a) of the Constitution of India in relation to the posts held by the employees of an Integrated Tribal Development Agency opined that their employees would not be holder of office of profit although the State exercises control thereover holding: (SCC pp. 427-28, para 28) "28. It is also necessary to bear in mind that the Government is undertaking several projects and activities including commercial activities through the corporations and local bodies exercising some control over such corporations or bodies. In that view of the matter they may come within the meaning of the "State" envisaged in Article 12 but that may not be a decisive factor in deciding the issue. As a matter of fact Section 10 of the Representation of People Act as well as Article 58(2) of the Constitution of India do indicate that all persons employed in such undertakings, corporations or local bodies cannot be deemed to suffer disqualification for contesting the elections except to the extent indicated therein. This aspect also has been considered in some of the above- mentioned decisions. If a strict and narrow construction is to be applied that amounts to shutting off many prominent and other eligible persons to contest the elections which forms the fundamental basis for the democratic set-up. Therefore several factors as indicated above depending upon the facts of each case have to be taken into consideration in deciding whether a particular person is disqualified by virtue of his holding an office of profit before concluding that such an office is under the Government"
33. The decision, therefore, is an authority for the proposition that those employees who come within the meaning of Article 12 of the Constitution of India are not necessarily government servants. A'fortiori the State in terms of a scheme may exercise control over a section of the persons working but thereby only, they do not become entitled to protection under Article 311 of the Constitution of India.
34. Reference to the provisions of the Minimum Wages Act, in our opinion, is also not apposite. The said Act is applicable to the workmen working in the industries specified therein. It is not the case of the respondents that the ICDS programme would constitute an 'industry' or Anganwadi workers are industrial workmen. There cannot be any doubt whatsoever that it is one thing to say that the State would be liable to pay minimum wages irrespective of its financial constraints but it is another thing to say that as to whether such a claim can be raised in respect of those who are working under a project. It is not a case where the concept of minimum wage, living wage or fair wage can be brought in service.
35. Different tests applied even for determining the relationship of employer and employee have recently been noticed by this Court in District Rehabilitation Officer & Ors. v. Jay Kishore Maity & Ors.[2006 (11) SCALE 545]. In that case, in almost similar project, the employees appointed by the District Rehabilitation Centre claimed themselves to be the Central Government employees. Each case, therefore, has to be considered on its own merits."
8.1 The said issue also came up for consideration before Division Bench in case of Patdi Taluka Panchayat vs. Zebunnisha Nathumiya (LPA No.663 of 2004). 8.2 In the said decision Hon'ble Apex Court considered Page 5 C/SCA/4835/2016 JUDGMENT judgment dated 12.12.2003 passed by learned Single Judge in Special Civil Application No.12086 of 2003. 8.3 It is necessary to note that the concerned Anganwadi worker i.e. Zebunnisha Nathumiya had raised industrial dispute which culminated into Reference (LCS) No. 175 of 1993.
8.4 In the said reference case learned Labour Court rendered award dated 25.2.2002 in favour of the claimant. Feeling aggrieved by said award dated 25.2.2002 in Reference (LCS) No.175 of 1993 Patdi Taluka Panchayat preferred Special Civil Application No.12086 of 2003. 8.5 This Court rejected the petition filed by the Patdi Taluka Panchayat. Feeling aggrieved by order dated 12.12.2003 passed by learned Single Judge in Special Civil Application No.12086 of 2003 the said petitioner Patdi Taluka Panchayat filed Letters Patent Appeal No.663 of 2004. By decision dated 20.9.2011 Hon'ble Division Bench allowed the appeal and Hon'ble Division Bench set aside the order dated 12.12.2003 passed by learned Single Judge in Special Civil Application No.12086 of 2003. Hon'ble Division Page 6 C/SCA/4835/2016 JUDGMENT Bench also set aside award dated 25.2.2002 passed by learned Labour Court in Reference (LCS) No.175 of 1993.
9. In the said decision dated 20.9.2011 Hon'ble Division Bench observed and held that:-
"3. It is the case of the appellant that the respondent herein was employed as Anganwadi Helper vide order dated 31.05.1998 on honorarium basis with a specific condition that she is not employed in the regular establishment. As the respondent was irregular in performing her duties and due to unauthorised leave taken by her from 01.12.1993 to 15.12.1993 her honorarium was deducted. Thereafter, the respondent was issued notices on 03.03.1993, 09.03.1993, 13.03.1993 & 15.03.1993. Ultimately, on 23.03.1993 after hearing the respondent, she was relieved. Being aggrieved by the said relieving order, the respondent employee approached the labour court by way of filing LCS No. 375 of 1993. The labour court by way of award dated 25.02.2002 reinstated the respondent employee with 100% backwages. Being aggrieved by the said award, the appellant approached this court by way of filing Special Civil Application No. 12086 of 2003 whereby the learned Single Judge confirmed the award passed by the labour court and dismissed the writ petition vide order dated 12.12.2003. Hence the present appeal is filed challenging the impugned order passed in the writ petition.
4. Mr. H.S. Munshaw, learned advocate appearing for the appellant panchayat submitted that the respondent was appointed only on honorary basis as Anganwadi Helper under a scheme known as Integrated Child Development (ICDS) and that she was not a workman as defined under the provisions of Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). He submitted that the respondent was not paid wages as defined under the provisions of Industrial Disputes Act, 1947 and therefore she ought not to have been granted any relief by the Labour Court as the provisions of the Act were not applicable in her case.
4.1 Mr. Munshaw further submitted that the Labour Court as well as the learned Single Judge ought to have appreciated that the respondent herein was working only on honorary basis and that there was no relationship of the nature of employer- workman/master-servant between them. He submitted that the performance of the respondent was far below satisfactory and she was even issued number of notices by the competent authority under who she was performing her duties.
4.2 In support of his submissions, Mr. Munshaw has relied upon a decision of the Apex Court in the case of State of Karnataka and Others vs. Ameerbi and Others reported in 2007(11) SCC 681 wherein it is held that the persons working as anganwadi workers do not hold civil post and their application is not maintainable under Section 15 and that anganwadi workers are not industrial workmen and therefore the Minimum Wages Act shall not be applicable to Anganwadi workers working under ICDS programme.
5. Mr. Shakeel Qureshi, learned advocate appearing for the respondent has strongly supported the case of the respondent and the orders passed by the court below and submitted that the respondent is covered by the provisions of section 2(s) of the Act. He submitted that the learned Single Judge has rightly upheld the reinstatement order passed by the Labour Court and therefore this appeal may not be entertained.
6. Before deciding the issue in question, it shall be relevant to peruse Sections 2(s) &
(k) of the Industrial Disputes Act, 1947. The same are reproduced as under:
2(k) : "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and Page 7 C/SCA/4835/2016 JUDGMENT workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;
2(s) : "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire orreward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
i. who is subject to the Air Force Act, 1950 (45 of 1950),or the Army Act, 1950 (46 of 1950), or the Navy Act,1957 (62 of 1957); or ii. who is employed in the police service or as an officer or other employee of a prison; or iii. who is employed mainly in a managerial or administrative capacity; or iv. who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
7. We have carefully gone through the aforesaid definitions of workman and industry and we do not find that even those persons who hold honorary posts and are paid honorarium are to be treated as workman under the Act. In the case where honorarium is paid to a person, the relationship of master and servant shall not exist which shall mean that the person cannot be termed as an employee.
7.1 In the present case, it is evident that the respondent was not paid any wages under the Act and therefore mere honorarium shall not entitle her to be considered as an employee under the Act. She was not appointed on any pay scale. Moreover, such scheme is on a year-to-year basis. In such a event if there is no relationship of employer and employee between the parties, the dispute between them cannot be termed as industrial dispute as defined under section 2(k) of the Act.
8. Even otherwise the law on the subject is well settled in view of the recent decision and guidelines of the Apex Court in the case of State of Karnataka and Others (supra). The relevant paras thereof read as under:
"13. The posts of Anganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and Anganwadi workers but it is another thing to say that they are holders of civil post.
14. We are not oblivious of the fact that their presence in their respective villages is extremely important. They are supposed to make significant contribution to the society. They, we understand, are required to carry a large number of activities, primarily amongst them being the welfare of the children.
20. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed. We do not think that the said decision has any application in the instant case.
34. Reference to the provisions of the Minimum Wages Act, in our opinion, is also not apposite. The said Act is applicable to the workmen working in the Page 8 C/SCA/4835/2016 JUDGMENT industries specified therein. It is not the case of the respondents that the ICDS programme would constitute an 'industry' or Anganwadi workers are industrial workmen. There cannot be any doubt whatsoever that it is one thing to say that the State would be liable to pay minimum wages irrespective of its financial constraints but it is another thing to say that as to whether such a claim can be raised in respect of those who are working under a project. It is not a case where the concept of minimum wage, living wage or fair wage can be brought in service."
8.1 In view of the aforesaid decision which is squarely applicable to the facts of the present case, we find that the orders of the learned Single Judge and the Labour Court deserve to be set aside as the same are bad in law.
9. Accordingly, we quash and set aside the impugned order dated 12.12.2003 passed by the Single Judge in Special Civil Application No. 12086 of 2003 and the award dated 25.02.2002 passed by the Labour Court, Surendranagar in Reference (LCS) No. 175 of 1993 reinstating the employee with full backwages. The relieving order dated 23.03.1993 is hereby upheld."
10. Subsequently, in another case i.e. Letters Patent Appeal No. 1844 of 2017 similar issue was again raised before Hon'ble Division Bench. In the said case i.e. Letters Patent Appeal No. 1844 of 2017 Hon'ble Division Bench considered earlier decision dated 20.9.2011 in Special Civil Application No.663 of 2004 as well as decision by Hon'ble Apex Court in case of State of Karnataka (supra). Hon'ble Division Bench, in Letters Patent Appeal No.1844 of 2017, after having regard to the decision dated 20.9.2011 in Letters Patent Appeal No.663 of 2004 observed and held that:-
"5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the appellant herein was working as Anganwadi Worker under the Integrated Child Development Scheme and was being paid honorarium and even her services were not full time service. That the appellant raised Industrial Dispute challenging her discontinuation as Anganwadi Workers holding inter alia that her termination as Anganwadi Worker is in breach of Section 25 F, G and H of the Industrial Disputes Act. That considering and relying upon the decision of the Hon'ble Supreme Court in the case of Ameerbi and Ors (supra) and the direct decision of the Division Bench of this Court in the case of Patdi Taluka Panchayat (supra), the Labour Court has rejected the Reference on the ground that the appellant cannot be said to be workman within the meaning of Section 2(s) of the Industrial Disputes Act.
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The aforesaid has been confirmed by the learned Single Judge by impugned judgment and order. Therefore, short question which is posed for consideration of this Court is whether Anganwadi Workers who are paid honorarium and who are appointed under the particular benevolent scheme known as ICDS, can be said to be workman within the meaning of Section 2(s) of the Industrial Disputes Act.
5.1 At the outset, it is required to be noted that the aforesaid issue is directly covered against the appellant in view of the decision of the Division Bench of this Court in the case of Patdi Taluka Panchayat (supra). In the case of Patdi Taluka Panchayat, it is specifically observed and held by the Division Bench of this Court that the Anganwadi Worker under the ICDS Scheme, cannot be said to be workman within the meaning of Section 2(s) of the Industrial Disputes Act. As such in the case of Ameerbi and Ors (supra), the Hon'ble Supreme Court has specifically observed and held that post of Anganwadi Worker are not statutory post. That they have been created in terms of the scheme. Even considering object of the scheme, ICDS programme / scheme under which Anganwadi workers are appointed and paid honorarium cannot be said to be Industry under the Industrial Disputes Act. That ICDS Scheme has been formulated in pursuance of the National Policy for Children. As such, it is a benevolent scheme evolved to make coordinated effort for an integrated programme for betterment of the children, more particularly, in the rural area and to provide additional support for proper health care education, nutrition and social well being of children. Under the circumstances, when considering the object of the ICDS Scheme under which Anganwadi workers were appointed under ICDS Scheme cannot be said to be workman within the meaning of Section 2(s) of the Industrial Disputes Act and therefore, as such the learned Labour Court has rightly rejected the Reference and same has been rightly confirmed by the learned Single Judge by impugned order.
6.0. Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of Vidya (supra) is concerned, we are not agree with the view taken by the Bombay High Cort. As such, decision of the Bombay High Court shall not be binding to this Court. There is a direct decision of the Division Bench of this Court in the case of Patdai Taluka Panchayat (supra) taking a view that Anganwadi Workers, cannot be said to be workman within the meaning of Section 2(s) of the Industrial Disputes Act.
7.0. We are in complete agreement with the view taken by the learned Labour Court confirmed by the learned Single Judge. No interference of this Court is called for in exercise of intra Court appellate jurisdiction. Under the circumstances, present Letters Patent Appeal deserves to be dismissed and is accordingly dismissed."
11. This Court is bound by the said decision. From the said decision it emerges that this Court held that the Anganwadi worker, working under ICDS cannot be considered workman within the meaning of the term defined under Section 2 (s) of I.D. Act.
11.1 Learned Labour Court could not have entertained reference which was made at the behest of the person who cannot be termed workman.
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11.2 The dispute or grievance which is raised by person who is not "workman" within the meaning of the term defined under Section 2(s) of the I.D. Act cannot be termed as Industrial Dispute (defined under Section 2(k) of I.D. Act) and that therefore learned Labour Court would have no jurisdiction to decide such dispute which is raised at the behest of the person who is not workman within the terms defined under Section2(s) of the Act.
11.3 In light of the above mentioned two decision viz. decision dated 20.9.2011 in Letters Patent Appeal No.663 of 2004 and the decision dated 7.11.2017 in Letters Patent Appeal No. 1844 of 2017 the said award is passed without considering above mentioned decision. Besides this the award is without jurisdiction.
12. Therefore said award cannot be sustained.
The award award dated 27.11.2015 passed by learned Labour Court at Mehsana in Reference (LCM) No. 73 of 2010, consequently deserves to be set aside and is accordingly set aside.
Therefore petition succeeds and award deserves to be Page 11 C/SCA/4835/2016 JUDGMENT set aside. Consequently award dated 27.11.2015 in Reference (LCM) No. 73 of 2010 is set aside. The petition stands allowed accordingly. Rule is made absolute to the aforesaid extent.
The petition is disposed of.
Orders accordingly.
Sd/-
(K.M.THAKER, J) SURESH SOLANKI Page 12