JUDGMENT

Order dated 1.2.2016 of the Assessing Officer for the period from 6/2005 to 2/2009 and assessment of the dues on account of non contribution towards the EPF under the Employee's Provident Funds and Miscellaneous Provisions Act, 1952 Act and 31.8.2021 of the Industrial Tribunal are under challenge on behalf of the petitioner, Management. The petitioner is a partnership firm of 11 petty contractors engaged in the business of labour supply contract to M/s Apollo tyres, Perambra and had been allotted a code under the provisions of the aforementioned Act. The service condition of certain employees of the petitioner firm are not similar to the others as only few of the employees are entitled to special HRA, conveyance allowance, special conveyance allowance and Sunday wages. On the basis of the inspection done in the premises, petitioner received a notice of not having made the payment equal and at par with respect to other employees on the aforementioned account. It was duly replied that only few of the employees are doing the extra and skilled duty and therefore they were entitled, which resulted into the impugned order and appeal preferred thereto was also dismissed.

2. Learned counsel for the petitioner submitted that the order of the assessing authority merged in the order of the appellate authority whereby matter has been again remanded back to the assessing authority on the point that all the employees are liable to be paid equal allowances ie, special HRA, conveyance allowances, special conveyance allowances and Sunday allowances is wholly sustainable. The wage register placed on record along with the appeal has totally been misconstrued much less misinterpreted. From perusal of the aforementioned documents annexed with the writ petition as well as Ext.P1, out of the 334 employees only 98 employees are getting the special allowances referred to above. In support of the contentions relied upon the judgment of the Supreme Court in Regional Provident Fund Commissioner(II) West Bengal vs. Vivekananda Vidyamandir (2020 (17) SCC 643) wherein the findings rendered by the larger bench of the Supreme Court in Bridge and Roof Co.(India) Ltd v. Union of India (1963 (3) SCR 978) has been relied upon and held that the aforementioned allowances would not fall within the definition of basic wages. Keeping in view the nature and duties of the employees though there was no material placed on behalf of the assessee in the cited judgment , the order of the assessing authority was upheld.

3. On the contrary, learned counsel appearing on behalf of the Regional Provident Fund Commissioner countered the argument of the learned counsel for the petitioner on the premise that the writ petition would not be maintainable against the order of the remand. All the pleas taken in this Court can be urged and raised before the Assessing authority as and when the matter is taken up after the demand. The findings of the appellate Tribunal with regard to the special allowances cannot be treated to be a mandate but would be obiter. Management failed to place on record the wage register before the assessing authority resulting into the assessment under 7A to the tune of Rs.16,42,814/-.

4. I have heard the learned counsel for the parties and appraised the paper book. It would be expedient to extract the definition of basic wages and contribution as defined under Section 2(b) and(c) of the EPF Act, 1952.

b) “basic wages” 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 are paid or payable in cash to him, but does not include—(i) the cash value of any food concession;

(ii) any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living), house-rent allowance, overtime allowance, bonus commission or any other similar allowance payable to the e