The Supreme Court defined 'basic wage' under the EPF Act, clarifying that only universally paid wages qualify, while variable allowances do not.

JUDGMENT :

M.S. RAMESH, J.

Common Prayer: Writ Appeals filed under Clause 15 of Letters Patent praying to allow the appeals and set aside the orders of the learned Judge dated 07.06.2011 in WP.Nos.25442, 15823 & 22480 of 2010 respectively.

In all these Writ Appeals, the orders that were impugned in the Writ Petitions, are notices under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “the EPF Act”), calling upon the employer to attend the inquiry to be conducted under Section 7A of the Act.

2. The learned Single Judge had upheld the orders passed by the Provident Fund Appellate Tribunal and rejected the Writ Petitions in WP.Nos.25442, 15823 & 22480 of 2010, through a common order dated 07.06.2011, by placing reliance on several decisions of the Hon'ble Supreme Court. These orders of the Writ Court are assailed in the present Writ Appeals.

3. Pending the Writ Appeals, 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 opportunity more than others, the amount paid for that cannot be included in the basic wage. As for example, the overtime allowance, though it is generally enforced across the board but not earned by all employees equally. Overtime wages or for that matter, leave encashment may be available to each workman but it may vary from one workman to other. The extra bonus depends upon the extra hour of work done by the workman whereas leave encashment shall depend upon the number of days of leave available to workman. Both are variable. In view of what we have observed above, we are of the opinion that the amount received as leave encashment and overtime wages is not fit to be included for calculating 15% of the hill development allowance.”

20. That the Act was a piece of beneficial social welfare legislation and must be interpreted as such was considered in Daily Partap v. Provident Fund Commr. [Daily Partap v. Provident Fund Commr., (1998) 8 SCC 90 : 1999 SCC (L&S) 113]

21. Applying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate that the allowances in question being paid to its employees were either variable or were linked to any incentive for production resulting in greater output by an employee and that the allowances in question were not paid across the board to all employees in a particular category or were being paid especially to those who avail the opportunity. In order that the amount goes beyond the basic wages, it has to be shown that the workman concerned had become eligibl