The exclusion clause in the definition of 'basic wage' under the Employees Provident Fund Act justifies the exclusion of certain allowances for determining contributions to the Fund.

MAHESH GROVER, J.

1. The Petitioner impugns the order (Annexure P-5) passed by the Appellate Tribunal under the provisions of the Employees Provident Fund & Misc. Provisions Act, 1952 while determining the issue raised by the Respondents regarding its liability under the provisions of Section 7A of the Act.

2. The Respondent-Company is an establishment which is amenable to the provisions of Employees Provident Fund and Misc. Provisions Act and for the purposes of determining its contribution was taking into consideration the basic wage as given to its employees.

3. The Petitioner's grievance is that the Respondents were splitting the wage structure of the employees as a subterfuge so as to dilute its liability and that this was contrary to the wage structure which is to be taken into consideration for the contributions to be made to the Fund under the Act. The precise grievance is that rates of minimum wages which ought to have been taken into consideration are not being done so by the Respondents and by splitting up the wage structure there is an evasion of its liability.

4. The Tribunal considered the matter and held that the Respondents were right in taking into consideration the basic wage of the employee for determining the contribution to the Fund. The plea of the Petitioner was negated which has prompted him to file the instant writ petition.

5. It has been contended by the learned Counsel for the Petitioner that it is the minimum wage, the definition of which is provided under the Minimum Wages Act which is to be taken into consideration for determining the contribution and that the Tribunal was wrong in interpreting the provisions of law and determining the liability of the Respondents on the basis of the basic wage which was being given by the Respondents to its employees for the purposes of determining the contribution to the fund. It is his case that the Respondents have deliberately, by not including the allowances in the basic wage have sought to deflate the share of the employees contribution. Reliance has been placed on cases titled as D.C.M. Limited vs. Regional Provident Fund Commissioner, (1998) 1 LLJ 979 and Airfreight Ltd. vs. State of Karnataka and Others, (1999) 6 SCC 567.

6. On the other hand, learned Counsel for the Respondents has stated that the definition of basic wage as given in the Act clearly provide for an exclusion clause and they have gone strictly by definition of basic wage to determine the liability of the contribution to the fund. It has further been contended that definition of wages under the Minimum Wages Act is distinct from that of the basic wage under the Employees Provident Fund & Misc. Provisions Act and the provisions of one Act cannot be read into the other when the Legislative intent is clear since the Provident Fund Act was enacted subsequent to the enactment of the Minimum Wages Act and if the Legislature so intended , it would have certainly read the definition of wage as provided under the Minimum Wages Act into the provisions of the Employees Provident Fund Act but instead it chose to provide a separate definition as it was conscious of the needs of the Legislation.

7. I have heard learned Counsel for the parties and have perused the impugned order.

8. On due consideration it is to be noticed that Section 2(b) of the Employees Provident Fund and Miscellaneous Provisions Act which is extracted below, clearly provides that the basic wage means all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which may be paid or payable in cash to him but would not include the cash value of any food concession, any Dearness Allowance, House Rent Allowance, over time allowance, bonus, commission or any other similar allowance payable to an employee in respect of his employment or work done in such an employment:

2(b) "basic wages" means all emoluments which are earn