Layoff compensation does not form part of wages and cannot attract the provisions of Section 14(B) of the Employees' Provident Fund and Miscellaneous Provisions Act 1952.

Vinod K. Sharma, J.

1. The petitioner has challenged the order passed by the Assessing Officer, u/s 14(B) of the Employees' Provident Fund and Miscellaneous Provisions Act 1952, (herein-after referred to as the "Act") and that of Employees Provident Fund Appellate Tribunal. The petitioner is the Co-operative Sugar Mills situated in the backward area of Madurai District. Keeping in view of the continuous losses, the petitioner applies for permission for layoff u/s 25-M(1) of the Industrial Disputes Act 1947. The permission was granted for layoff vide order, dated June 28, 2003. The layoff was also held to be justified vide award, dated June 28, 2006 by the learned Industrial Tribunal, Chennai. The employees were paid 50% of the wages as layoff compensation.

2. On account of non deposit of contribution by the petitioner, the proceedings u/s 7A were taken, in which, the layoff compensation paid by the petitioner was also taken to be part of wages. The petitioner in compliance with the order passed by the Assessing Officer deposited the said amount.

3. Thereafter, the proceedings u/s 14(B) of the Act were initiated against the petitioner, on the ground of delay in deposit of contribution, wherein a positive stand was taken that the damages u/s 14(B) could not be imposed on the amount paid as layoff compensation as it did not form part of the wages.

4. In support of this plea, the petitioner placed reliance on the Commissioner's Circular, dated October 13, 1957, excluding layoff retrenchment compensation as forming part of basic wages. This contention was rejected by recording that as this ground was not raised in the proceedings u/s 7A of the Act. It is not open to the petitioner for the first time to raise this plea in a proceeding u/s 14B of the Act.

5. The learned counsel for the petitioner challenged the impugned order on the ground that the proceedings u/s 14B are not executory proceedings, as held by the authorities, but independent proceedings, which are to be adjudicated, in the quasi judicial manner. The authority is to apply its mind to the facts of the case, and thereafter, come to a conclusion as to whether the damages are to be levied or not.

6. The impugned order on the face of it, is perverse and not sustainable in law.

7. The question to be decided by the authorities, was "whether layoff compensation falls within the definition of "wages", so as to attract the action for non deposit of contribution, and to impose damages". At present this Court is not concerned with the order passed u/s 7A, as it has already attained finality having not been challenged.

8. At the same time, once the circular issued by the Commissioner, specifically excluded the layoff compensation from basic wages, it was not open to the respondent, to impose damages u/s 14(B) of the Act on the amount deposited towards contribution u/s 7A of the Act. The claim of contribution on lay off compensation had no legal backing, therefore the delay in deposit of the contribution would not attract Section 14(B) of the Act. The damages can only be imposed for delay in deposit of contribution which are legally due, and not those which are paid wrongly though were not payable.

9. The learned counsel for the respondent, contended that the circular issued by the Commissioner excluding layoff compensation from wages cannot be the oasis to challenge order under 14B of the Act as the layoff compensation falls under definition of basic wages u/s 2(B) of the Act.

10. This contention again is misconceived, as Section 2(B) does not include layoff compensation on wages. The circular issued by the Commissioner, was binding on the authorities under the Act. The layoff compensation therefore cannot attract the provisions of Section 14(b) of the Act.

11. The Learned counsel for the respondent also contends, that while reckoning the service of the employees, the period of layoff is also reckoned as the service therefore, the layoff compensation forms part of the wages, as it wil