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drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2081 OF 2018

The Regional Provident Fund Commissioner

PETITIONER

Employees’ Provident Fund Organization,

Regional Office, Plot No.2,

Bhavishya Nidhi Bhavan, Town Centre,

Commercial Area, CIDCO, Aurangabad 431 009

VERSUS

M/s Laxmi Agni Components & Forgings Pvt. Ltd., RESPONDENT

(Through its Authorized Signatory)

B-11/12, MIDC, Chikalthana, Aurangabad

Maharashtra

.......

Mr. K. B. Chaudhary, Advocate for the petitioner

.......

[CORAM : NITIN B. SURYAWANSHI, J.]

RESERVED ON : 30

^th MARCH, 2022

PRONOUNCED ON : 6

^th JUNE, 2022

JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard finally with

the consent of the learned advocate for the petitioner.

2.

This petition, filed under Article 227 of the Constitution of

India, is directed against the order dated 12^th August, 2016

passed by the Provident Fund Appellate Tribunal (hereinafter for

short “the Tribunal”) in Appeal No. ATA No. 355 (9) 2016 thereby

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setting aside the order dated 23^rd February, 2016 passed by the

petitioner under section 7-A of the Employees’ Provident Funds &

Miscellaneous Provisions Act, 1952 (hereinafter, for short “the

said Act”).

3.

The petitioner is an “authorized officer” as defined under

section 2 (aa) of the said Act, conferred with the powers to

determine the amount of contribution due and payable as per

the provisions of the said Act and schemes framed thereunder,

from the establishments covered under the provisions of the said

Act. The respondent is an establishment covered under the

provisions of the said Act.

4.

The establishment failed to remit the amount of

contribution, therefore, an inquiry under section 7-A of the said

Act was initiated. Pursuant to the inquiry, the Enforcement

Officer submitted report that on the verification of salary

statement tendered by the establishment for the period 2002-03

to 2009-10, the establishment has shown basic pay, HRA,

washing allowance, personal allowance, education allowance,

allowance-1, allowance-2, arrears, leave and Over Time payable

to the employees and the attendance allowance is shown to have

been paid from September, 2009 onwards. It is further stated

that from the year 2003-04, the establishment has reduced

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“basic wages” percentage, compared to the earlier “basic wages”

and the same is done to avoid provident fund contribution to be

paid by the employer. The Enforcement Officer, therefore, stated

in his report that the allowances mentioned in the report may be

treated as part of the “basic salary and wages” and by doing so,

worked out the amount of contribution to be paid by the

establishment at Rs.69,93,870/-.

5.

The report was forwarded to the establishment and its

reply was sought. The establishment submitted reply, contending

that the employees are getting allowances as agreed by the

union. Considering the definition of “basic wages”, the

allowances which are being paid by the establishment are

exempted from being considered for assessment of the dues.

Since the basic wages are being paid on the basis of settlement

signed with the recognized union, the ratio percentage is not

applicable. Sometimes, in terms of the agreement, wages are

increased, but as per the understanding between the parties, it

is not added to the basic wages, therefore, the say of the

Enforcement Officer that there is reduction of basic wages is

erroneous and cannot be accepted.

6.

The petitioner, thereafter, called upon the Enforcement

Officer to submit reply to the say filed by the establishment,

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which was submitted on 26^th November, 2015. The establishment

thereafter submitted application on 1^st January, 2016 requesting

for reconsideration of the records and fresh assessment as the

dues were calcula