K.M. Thaker, J.

1. Heard Mr. K.M. Patel, learned senior counsel with Mr. V.K. Patel, learned advocate for the petitioner company and Ms. Shailaja, learned advocate for the respondent P.F. Department.

2. In present case, the petitioner has placed under challenge order dated 6.12.2010 passed by the learned Employees Provident Fund Appellate Tribunal and the order dated 4.4.1996 passed by respondent No. 1 RPFC in exercise of powers under section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act).

3. By his order dated 4.4.1996, the respondent No. 1 held that the amounts paid in name and style of production incentive would fall within the purview of the term basic wages as defined and contemplated under the Act and consequently, the said payments liable to be taken into account for calculating contribution payable towards provident fund and other funds under the Act.

3.1 Feeling aggrieved by the said order dated 4.4.1996, present petitioner filed appeal before the learned Appeal Tribunal. The learned Tribunal, vide its order dated 6.12.2010, confirmed the said decision of respondent No. 1 and rejected the appeal (ATA No. 926 (5) 2004) filed by present petitioner.

4. So far as factual background is concerned, it has emerged from the record and submissions by learned advocates for the petitioner and the respondent P.F. Organization that the petitioner is a company incorporated under the Companies Act, 1956 and it is also an establishment covered under the Act. It is claimed that the petitioner is an exempted undertaking/establishment because since 1973 it has established and set up its own provident fund trust.

4.1 The petitioner claims that its employees are paid salary as well as other benefits and other perquisites under and in accordance with settlements arrived at between the workmen/union and the company. It is also claimed that one of such settlements was arrived at in September 1992 which brought in operation production incentive scheme. It is further claimed that the said settlement was arrived at between the parties during pendency of Reference No. 10 of 1992 and the learned Industrial Tribunal, after considering the settlement, passed award dated 2.9.1992 in terms of the settlement.

4.2 It is further claimed that subsequently, somewhere in May 1994, the respondent No. 2 issued notice dated 12.5.1994 under Section 7A of the Act on the ground that the petitioner had committed default in payment of provident fund contribution in respect of its employees inasmuch as contribution in respect of the amounts paid to the employees towards so-called production incentives, i.e. in name and style of incentive have not been paid.

4.3 It is claimed that the petitioner opposed the notice by filing reply in July 1994. It is also claimed that the petitioner placed on record before the respondent No. 1 relevant material/documents with the contention and explanation that the demand was unjustified and production incentive would not come within the purview of the term basic wages defined under section 2(b) of the Act. However, the respondent No. 1 did not accept the said reply and contentions and passed order dated 4.4.1996 holding, inter-alia, that the amounts paid by the petitioner is part of basic wages and that, therefore, contribution should be paid in respect of the amount paid in name of production incentive.

4.4 Feeling aggrieved by such direction, the petitioner had filed petition, i.e. Special Civil Application No. 3554 of 1996 in this Court. The said petition came to be disposed of vide order dated 15.10.2004 and the Court relegated the petitioner to statutory remedy under the Act, i.e. appeal before the learned Tribunal.

4.5 The said appeal came to be dismissed by the learned Tribunal vide order dated 6.12.2010 whereby the learned Tribunal confirmed the order passed by respondent No. 1. It is against the said order dated 6.21.2010 passed by the learned Tribunal that the