MESMA and Nature of Service of Anganwadi workers
Recently, Government of Maharashtra
passed an order which decided to bring anganwadi workers under the scope of
Maharashtra Essential Services Maintenance Act, 2017 (hereinafter referred to as “the
MESMA” for the sake of brevity). Later the said order was revoked and the
operation of the MESMA against anganwadi workers was stayed. This article
attempts to simplify the issue by analyzing it critically.
It is duty of the State to see that every person gets
essential services such as transport, water, milk, gas, electricity, public
health etc. For which Central Act namely The Essential Services Maintenance
Act, 1968 was enacted. The MESMA is State Legislation connected
with matters in respect of which the State Legislature has power to make laws. Object of the MESMA is to provide for the
maintenance of certain essential services and the normal life of the community.
Section 2 of the MESMA defines essential
services. It is necessary to understand context of Section 2(a)(v) and 2(a)(vi)
which extends scope of ‘essential services’ to include various incidental and
connected services. It certainly gives discretion to State Government to extend
scope of provisions of the MESMA over connected matters in respect which State
Legislature has power to make laws.
Anganwadi is a type of rural mother
and child centre in India. They were started by the Indian Government in 1975
as part of the integrated child development services program. 1
It basically provides preschool education, food and primary healthcare to
children under 6 years of age and their mothers.2
Anganwadi workers are appointed to
carry out abovementioned functions. It is also apposite to examine the nature
of service of anganwadi workers. They are appointed under Integrated Child Development Services (hereinafter referred as “ICDS” for the sake of
brevity) scheme which is not of a permanent nature although might have
continued for a long time. The dictum of Supreme Court in State Of Karnataka & Ors v. Ameerbi & Ors3
rests doubt regarding nature of service. It deals with anganwadi workers’ appointed under the said Scheme and the
maintainability of an application filed by the workers under Section
15 of the Administrative Tribunals
Act, 1985. Supreme Court has
elucidated that anganwadi workers do not fall under civil posts hence Article
309 or 311 of the Constitution cannot be invoked. Neither they can invoke
Section 15 of Administrative Tribunals Act, 1985 nor they are protected under
Minimum Wages Act. It was held in the said case that the post of
such workers was not a statutory post and their recruitment process was not
governed by the Constitution or any statute and thus the application was not
maintainable. It was specifically held that ICDS Programme would neither
constitute an "industry" nor anganwadi workers "industrial
workmen". The post of anganwadi workers was not a statutory post and had
been created in terms of the said Scheme. During 2011 Delhi High Court while
deciding the case of Akhil Bhartiya Anganwadi Kamgar Union v. Union of India
and Ors4 reiterated the fact that anganwadi workers do not
fall under the civil posts. But Court remarked that, ‘it was on the
humanitarian grounds that we felt that the matter must be looked at
sympathetically by the Government itself’.
In
the case of P.Narayanan v. The Director Of Social Welfare & Ors, 5
anganwadi worker was terminated from service. Later she died as she was
suffering from cancer. Her husband challenged an order of termination by filing
writ petition before Madras High
Court wherein it was held that State is not under any obligation
to carry statutory enquiry while
terminating service of anganwadi worker. It is hence much clear that Article
309 or Article 311 of Constitution cannot be invoked in case of anganwadi
workers. They fall under the scheme of ICDS which is well governed and funded
by the Central Government.
Recently, in the Lok Sabha the question regarding wages /
honorarium of anganwadi workers was raised by Member of Parliament Dr. Parayamparanbil
Kuttappan Biju wherein Minister of Women
and child development answered that Anganwadi Workers and Anganwadi Helpers
are honorary workers under the Integrated Child Development Services Scheme,
they are not entitled for minimum wages. In a ruling of 07.12.2006 in Civil
Appeal No.4953-4957 of 1998 – State of Karnataka & Ors. Vs. Ameerbi &
Ors. the Hon’ble Supreme Court has also held that Anganwadi Workers do not hold
any civil post and Minimum Wages Act is also not applicable to them.6
Now it is much clear that anganwadi workers do not hold any
civil post nor they are protected under minimum wages act. They are appointed
as per the scheme of ICDS which is not
permanent. It is seen that most of them are working since very long period of
time. Their honorarium varies from State to State. Their service can be terminated
at any point of time without any specific statutory / constitutional obligation
as to enquiry upon the appropriate Government. The ICDS scheme is implemented
nationwide.
The
scheme of Anganwadi is not limited to any particular State in India. It is seen
all over India. As the scheme of anganwadi is
nationwide, I feel it is necessary that any rule / law / restriction / orders
passed against any of their interest has to be passed by Central Government.
Technically orders passed under Section 3 of the MESMA can be contended to be
valid under Section 2(a) (vi) which says, any other service, post,
employment or class thereof, connected with matters in respect of which the
State Legislature has power to make laws and when the State Government is of
opinion that strike in such service, post, employment or class thereof would
prejudicially affect the public safety or the maintenance of the supplies or
services essential to the life of the community or would result in the
infliction of grave hardships on the community, and which the State Government by
notification in the Official Gazette, declares to be an essential service for
the purpose of this Act.
During October 2017 High Court of Karnataka had stayed the
operation of order passed by Karnataka State Government under Karnataka
Essential Services Maintenance Act as it
was contended by the petitioner that the exercise of powers under Section 3 of ESMA so
as to bring BMRCL under the control of the state government, was illegal.
Therefore, the state has no jurisdiction to issue the impugned notification and
prohibit any form of strike, they contended.7
Undoubtedly,
any service essential to the life of community if terminated may cause huge
hardship. It also cannot be denied that functions performed by Anganwadi
workers and helpers are vital. The issue is whether services rendered by
Anganwadi falls within the meaning of essential services under MESMA.
Technically,
it might be possible to contend that it falls but I think it is necessary to
balance the equation. Anganwadi workers not being permanent employees under
civil services, adequate attention towards their welfare is necessary.
Maintaining welfare does not only include giving honorarium but also other factors. Anganwadi
workers are not full time workers but part time which has been reiterated
through various judicial pronouncements. I think it requires attention as to whether
work allotted to them amounts to part time work. Ultimately, MESMA can be
invoked anganwadi workers technically but thorough analysis is necessary to
balance both the sides.
3.
Civil Appeal No. 4953-4957 of 1998 (Supreme Court)
4. WP(C) No. 1158 of
1992 ( Delhi High Court)
5. WP No. 36115 of
2006 (Madras High Court)
6. https://www.gservants.com/2018/02/22/wages-to-anganwadi-workers/19165 (Lok Sabha, Starred Que. No.109- Answered
on 09/02/2018)
7. http://www.newindianexpress.com/states/karnataka/2017/oct/08/esma-order-against- metro-staff-stayed-1668488.html
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