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IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
S.K. Gangele and Brij Kishore Dube, JJ.
Surya Roshni Ltd.
Vs.
Employees Provident Fund and Anr.
W.P. No. 1891 of 2011
Decided On: 24.03.2011
(2) Employees Provident Funds and Miscellaneous Provisions Act, 1952 -- Ss.6, 2(b) and 7A -- basic wages for purpose of provident fund -- components of -- all special allowances are included -- but lunch allowance is not included.
The petitioner-company has been paying the salary to the workers, which includes, basic wage + VDA + HRA + transport allowance + attendance incentive + special allowance + washing allowance + canteen allowance and lunch allowance. It has been deducting the provident fund contribution on two components of salary i.e. basic wage + VDA. It is an admitted fact that it has been paying transport allowance i.e. conveyance allowance to all its employees. It is not a case that some employees are not getting the aforesaid allowance. Similarly, in regard to canteen allowance, it has been contended that the aforesaid allowance has been paid to operators and those employees, who are required to remain on machines during lunch period. [Para 13
Held: The aforesaid amount could not be included in basic wages and there is no liability of the petitioner company to deduct provident fund of the employees against the aforesaid amount.
Except this component, in our opinion, the rest of the special allowances paid by the petitioner company to the workers are liable to be included under the basic wages and the petitioner company is not entitled to deduct the provident fund under the head lunch allowance. (2008)5 SCC 428, AIR 1963 SC 1474, AIR 1963 SC 1480 and (200 1) 7 SCC 204 followed. [Para 13
¼1½ deZpkjh Hkfo";&fuf/k vkSj izdh.kZ mica/k vf/kfu;e] 1952 && /kkjk 2¼[k½] 6 rFkk 7d && fu;ksDrk }kjk fuf/k ds vfHknk; dk Hkqrku && Hkfo";&fuf/k ds iz;kstu ds fy, vk/kkfjd etnwjh && ds la?kVd && leLr fo‘ks"k HkRrs lfEefyr gSa && fdarq Hkkstu HkRrk lfEefyr ugha gSA
¼iSjk 13½
¼2½ deZpkjh Hkfo";&fuf/k vkSj izdh.kZ mica/k vf/kfu;e] 1952 && /kkjk 6] 2¼[k½ rFkk 7d && Hkfo";&fuf/k iz;kstu ds fy, vk/kkfjd etnwjh && ds la?kVd && leLr fo‘ks"k HkRrs lfEefyr gS && fdarq Hkkstu HkRrk lfEefyr ugha gSA
;kph daiuh deZdkjksa dks osru Hkqxrku dj jgh gS ftlesa vk/kkfjd etnwjh $ ifjorZuh; eagxkbZ HkRrk $ edku fdjk;k HkRrk $ ifjogu HkRrk $ mifLFkfr izksRlkgu $ fo‘ks"k HkRrk $ /kqykbZ HkRrk $ dSaVhu HkRrk rFkk Hkkstu HkRrk lfEefyr gSA ;g Hkfo";&fuf/k vfHknk; esa osru ds nks la?kVdksa esa ls dkVk tk jgk gS vFkkZr~ vk/kkfjd etnwjh $ ifjorZuh; eagxkbZ HkRrkA ;g Lohd`r rF; gS fd ;g vius leLr deZpkfj;ksa dks ifjogu HkRrk vFkkZr okgu HkRrk dk Hkqxrku dj jgh gSA ekeyk ;g ugha gS fd dqN deZpkjh mi;ZqDr HkRrk izkIr ugha dj jgs gSaA mlh rjg dSaVhu HkRrk ds laca/k esa izfrokn fd;k x;k fd mi;qZDr HkRrk vkijsVlZ dk Hkqxrku fd;k tkrk gSs rFkk mu deZpkfj;ksa dks ftudk Hkkstu dkykof/k esa e‘khu ij jguk visf{kr gSA
¼iSjk 13½
vfHkfu/kkZfjr % mi;qZDr jde ^^vk/kkfjd etnwjh** esa lfEefyr ugha dh tk ldrh Fkh rFkk mi;qZDr jde esa ls Hkfo";&fuf/k dkVus dk daiuh dk nkf;Ro ugha gSA bl jde ds vykok gekjs er esa] daiuh }kjk deZdkjksa dks Hkqxrku fd, tk jgs fo‘ks"k HkRrs ^^vk/kkfjr etnwjh* esa lfEefyr fd, tkus ds nkf;Rok/khu gSa rFkk ;kph daiuh ^^Hkkstu HkRrk** ‘kh"kZ ls Hkfo";&fuf/k dkVus dh gdnkj ugha gSA ¼2008½5 ,l lh 428] , vkb vkj 1963 ,l lh 1474] , vkb vkj 1963 ,l lh 1480 rFkk ¼2001½7 ,l lh lh 2004 vuqlfjrA
¼iSjk 13½
S.K. Gangele, J.
1. Petitioner-Company has filed this petition against the order dated 9-3-2011, Annexure P-l passed by Employees Provident Fund Appellate Tribunal and the order dated 22-4-2008, Annexure P-2 passed by Assistant Provident Fund Commissioner, Gwalior.
2. The Petitioner is a Company, registered under the provisions of the Companies Act, 1956. Its establishment is governed under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, hereinafter referred to as the 1952 Act' and also under the provisions of the Employees' Provident Fund Scheme, 1952, hereinafter referred to as the 1952 Scheme'. The Petitioner - Company has been allotted a Provident Fund Code No. MP/IN/9826. The Petitioner has three categories of employees, i.e. Firstly, Workman Category, which includes - Unskilled, Semi-skilled, Skilled and Highly Skilled, secondly, Staff Category which includes - Supervisor and Officer and thirdly, Management category, which includes - Senior Officer, Manager, General Manager and Vice President.
3. The Petitioner - company in accordance with the management policy has been paying Variable Dearness Allowance (for brevity, 'VDA') which is payable to first category of employees i.e. Workmen-category and they are getting package of salary, which includes Basic + VDA + HRA + Transport allowance + Canteen allowance + Lunch incentive. The Petitioner company has been remitting the provident fund contribution of eligible employees in accordance with the 1952 Act and the 1952 Scheme and it has been deducting provident fund contribution on two components of salary i.e. Basic + VDA. However, it has not been deducting provident fund contribution on other components i.e. Transport Allowance + Attendance incentive + Special allowance + Lunch Incentive.
4. The Assistant Provident Fund Commissioner noticed that the Petitioner -Company was paying wages to its workers in guise of allowances to avoid the EPF liability, hence it issued a summon on 9-2-2007 under Section 7A of the 1952 Act for determination of provident fund dues against the Petitioner -company for the period from June, 2003 to December, 2006.
5. The Petitioner-company contended before the Assistant Provident Fund Commissioner that it was not liable to pay provident fund contribution of its workers on other heads of wages except basic wage + VDA. The Authority vide order dated 22-4-2008 has held that the Special allowance is being paid to the workers as a part of monthly salary and, in order to reduce the provident fund liability the management has separated this amount from the basic wages. The Authority has further held that the Petitioner-company is not liable to pay provident fund contribution and deduct provident fund of the workers on washing allowance because it has been given to workers for maintaining the uniform clean.
6. In regard to other allowances, the Authority has held that other allowances are part of basic wages for the purpose of provident fund contribution. Hence, the Authority has held that the Petitioner is liable to deposit provident fund contribution for the period from June, 2003 to March, 2006 of Rs. 69,09,534/-.
7. Against the aforesaid order the Petitioner-company filed an appeal before the Employees' Provident Fund Appellate Tribunal, New Delhi under Section 7-A of the 1952 Act. The Appellate Authority dismissed the appeal.
8. Learned Counsel for the Petitioner-Company has contended that the impugned orders passed by the Assistant Provident Fund Commissioner and the Appellate Authority are against the provisions of the 1952 Act. The Petitioner-company is not liable to deduct provident fund from the wages of the workers except basic wages + VDA and it has been depositing the provident fund contribution with the department accordingly. Hence, it is not liable to deposit any additional amount. In support of his contentions learned Counsel relied on the judgment of the Hon'ble Supreme Court in the case of Manipal Acade
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