Allowances must be universally and necessarily paid to qualify as 'basic wage' under the EPF Act; variable allowances do not meet this criterion.

ORDER :

M.S. RAMESH, J.

Prayer in WP.No.9130/2014: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus to forbear the respondents from continuing with the proceedings initiated against the petitioner under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, pursuant to the notice Ref: No.CHN/TN/31309/CC3(26)/Eng/Regl/2013 dated 30.12.2013 till the pronouncement of the judgment by the Division Bench of this Court in W.A.Nos.982, 985, 1026, 1343 and 1344 of 2011.

Prayer in WP.No.9131/2014: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus to prohibit the respondents from proceedings further in the inquiry in terms of notice bearing CHN/TN/31309/CC3(26)/Eng/Regl/2013 dated 05.12.2013 initiated under Section 7A of the Act claiming contribution on allowances for the past period from 01.04.1994 to 05.12.2013.

Prayer in WP.No.16862/2014: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus to forbear the respondent from continuing proceedings initiated pursuant to No.CC1/21/TN/30223 A//Enf/Regl/14 dated 19.05.2014 and direct the respondent to keep the inquiry in abeyance till such time the pronouncement of the judgment of the Supreme Court on the issue.

Prayer in WP.No.15973/2015: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus to forbear the respondent from continuing with the proceedings initiated against the petitioner under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, pursuant to the notice Ref: No.CHN/TN/31309/Div19/CC-1/Eng/Regl/2015 dated 12.03.2015 till the pronouncement of the judgment by the Division Bench of this Court in W.A.Nos.982, 985, 1026, 1343 and 1344 of 2011 & W.P.Nos.9130 & 9131 of 2014.

In all these Writ Petitions, the summons issued under Section 7A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “the EPF Act”), are put under challenge.

2. The core issue involved in these Writ Petitions is, as to whether the various allowances namely, medical, special holidays, night shift incentives, conveyance, special allowances, city compensatory allowances, education allowances, cost of living allowances and food concessions, would fall within the meaning of 'basic wage', as per Section 2(b) of the EPF Act?

3. Pending the Writ Petitions, the Hon'ble Supreme Court in the case of Regional Provident Fund Commissioner Vs. Vivekananda Vidyamandir & others reported in 2019 SCC OnLine SC 291, had passed a judgment, holding that, except the allowances, which are not earned by all employees equally and may vary from one workman to other, the rest of the wages which are universally, necessarily and ordinarily paid, would fall within the definition of 'basic wage' under Section 2(b) of the EPF Act. The relevant portion of the judgment reads as follows:-

..... “19. The term “basic wage” has not been defined under the Act. Adverting to the dictionary meaning of the same in Kichha Sugar Co. Ltd. v. Tarai Chini Mill Majdoor Union [Kichha Sugar Co. Ltd. v. Tarai Chini Mill Majdoor Union, (2014) 4 SCC 37 : (2014) 1 SCC (L&S) 773] , it was observed as follows: “9. According to http://www.merriam-webster.com (Merriam-Webster Dictionary) the word “basic wage” means as follows:

‘(1) a wage or salary based on the cost of living and used as a standard for calculating rates of pay

(2) a rate of pay for a standard work period exclusive of such additional payments as bonuses and overtime.’

10. When an expression is not defined, one can take into account the definition given to such expression in a statute as also the dictionary meaning. In our opinion, those wages which are universally, necessarily and ordinarily paid to all the employees across the board are basic wage. Where the payment is available to those who avail the opportun