The main legal point established in the judgment is that the special allowance paid by the employer to the employee could not be included for computation of the contribution payable by the employer under the provisions of the Employees Provident Fund and Family Pension Fund Act, 1952, as it was not agreed to be treated as part of the basic wages or dearness allowance.

Ismail, C.J.

This is an appeal against the order of Varadarajan, J, dated 26th July, 1979, allowing Writ Petition No. 837 of 1977. The short question that arose before the learned Judge was whether the special allowance paid by the employer to the employee as a result of an agreement entered into between the parties could be said to form part of dearness allowance of not for the purpose of calculating the contribution payable by the employer under the provisions of the Employees Provident Fund and Family Pension Fund Act, 1952, Section 2, clause (b) of the Act defines"the term" basic wages"

" basic wages

"means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment - and which are paid or payable in cash to him but does not include -

(i) the cash value of any food concession;

(ii) any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of arise in the cost of living) house-rent allowance, overtime allowance, bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment :

(iii) any presents made by the employer"

2. Thus, it will be seen that this definition of the term" basic wages" *

excluded a number of allowances grouped in sub-cl. (ii) of sub-s. (b) of S. 2. However, under S. 6, dearness allowance and remaining allowances were taken into account for the purpose of calculating the contribution. The rational behind the exclusion under section 2(b)(ii) and the inclusion under section 6 was considered by the Supreme Court in Bridge and Roof Company (India) Limited v. Union of India. The learned Judge followed that judgment and held that in this case the special allowance was not agreed to be treated by the employer and the employees as part of the basic wages or dearness allowance and, therefore, it cannot be included for computation of the contribution payable by the employer under the provisions of the Employees Provident Fund and Family Pension Fund Act, 1952. As a matter of fact, even the appellant merely stated that as per section 6 of the Employees Provident Funds and Miscellaneous Provisions Act the special allowance should also be deemed to be dearness allowance. But he has not given any reason as to why the same should be deemed to be dearness allowance. It is not the finding of the appellant that the special allowance formed part of dearness allowance, but as he himself states in his order, dated 7th March, 1977, it was only deemed to be dearness allowance. Needless to say that an officer like the appellant has no power to deem something to be something else which it is not, it being the prerogative only of the Legislature. Under these circumstances, the learned Judge was right in allowing the writ petition. We see no justification to interfere with the order of the learned Judge. Hence, the appeal is dismissed.