IMPORTANT POINTS
Contribution towards provident fund can only be on basic wage and it is not at all necessary that the workman must necessarily be on duty or that the workman should actually have worked in order to attract the provisions of the EPF Act. The judgment of the Gujarat High Court in Swastik Textile Engineers Pvt Ltd (supra), being against the principles laid above, cannot be accepted in the light of the above precedents. Furthermore, a Division Bench of this Court in K.Y.Varghese (supra) had held that when the workman was reinstated in service with full benefits including back wages, he should have been deemed to be in service from the date on which he was kept under suspension till 16.3.1981 on which day, he was reinstated in service.

JUDGMENT :

The 2nd respondent, Sri. Venugopal was employed as a Field Officer in the Pattumalay Division of Wallardie Estate. For alleged violation of the standing orders of the Wallardie Estate, disciplinary proceedings were initiated against the 2nd respondent by the petitioner. A domestic enquiry was conducted and accepting the findings of the enquiry officer, the 2nd respondent was dismissed from service. The issue ultimately reached the Industrial Tribunal, Idukki and by award dated 28.8.2019, the Tribunal held that the petitioner failed to bring home the charges against the 2nd respondent. The 2nd respondent was ordered to be reinstated in service with back wages and all consequent benefits. Being aggrieved by the order passed by the Industrial Tribunal, the petitioner herein approached this Court and filed a Writ Petition under Article 226 of the Constitution of India. This Court by judgment dated 24.07.2015 in W.P.(C) No. 934 of 2010 dismissed the Writ Petition. Though the matter was taken in appeal, the Division Bench by its judgment dated 10.02.2016 in Writ Appeal No. 2691 of 2015 refused to interfere with the judgment. The award has thus become final.

2. Alleging non compliance of the award, the 2nd respondent filed a claim petition before the Labour Court, Ernakulam as C.P. No.9 of 2016 claiming a total sum of Rs.12,39,802.02/-which includes interest of Rs.4,84,600/-. The said claim petition was partly allowed by the Labour Court and the 2nd respondent was awarded a sum of Rs.7,55,202.02/-by excluding the interest which was claimed. Being aggrieved by the quantum of amount awarded and the denial of interest, the 2nd respondent filed W.P.(C) No.33527 of 2017 which is pending before this Court. The petitioner is stated to have remitted a sum of Rs.7,55,202/-as ordered by the Labour Court.

3. While things being so, the 2nd respondent approached the 1st respondent seeking a direction to the Employer to pay their share of Contribution under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 on the amount of back wages paid to him as per the award of the Labor Court. The 1st respondent heard the petitioner and the 2nd respondent and passed Exhibit P5 order finding that the 2nd respondent was eligible for membership of the Employees Provident Fund Scheme, 1952 and Employees Pension Scheme, 1995 for the period from 10.7.2004 to 2.11.2009. The above order is under challenge in this Writ Petition.

4. I have heard Sri.Jai Mohan, the learned counsel appearing for the petitioner, Sri. B. Ashok Shenoy, the learned Counsel appearing for the 2nd respondent and Sri. Joy Thattil Ittoop, the learned standing counsel appearing for the 1st respondent.

5. Sri.Jai Mohan, the learned counsel, very fervently submitted that back wages awarded to the 2nd respondent consequent to the decision in an Industrial Dispute cannot be considered as emoluments earned by an employee while on duty. According to the learned counsel, the expression “emoluments”, which are earned by an employee while on duty represents the amounts actually earned by an employee during the period of his employment while he is actually on duty. Reliance is placed on a judgment of the High Court of Gujarat in Swastik Textile Engineers (Pvt) Ltd Vs Virjibhaji Mavjibhai Rathode and Another, [2008 (1) CLR 953] and it was argued that the amount of back wages as awarded by the court will not constitute “basic Wages” as envisaged by the EPF Act and therefore, the employer is not under an obligation to make statutory contribution to the Provident Fund under the EPF Act.

6. Per contra, the learned standing counsel appearing for the 1st respondent submitted that the question posed in the instant case is no longer res integra and is squarely covered by the principles laid down by the Hon'ble Supreme Court in Pranitiya Vidhyut Mandal Mazdoor Federation and Ors. v. Rajasthan State Electricity Board and Ors., [1992 (2) SCC 723] Changdeo Sugar Mills Vs Union of