The Management Of Mando India v. The Regional Provident Fund
2024:MHC:3937
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.10.2024 Pronounced on 15.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE M.S. RAMESH AND THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN and M.P.Nos.1, 1 & 1 of 2011 WA.No.1028/2011 The Management of Mando India Ltd, F64, Sipcot Industrial Park, Irrungattikottai, Sriperumbudur Taluk, Deputy General Manager - HR.
...Appellant Vs.
The Regional Provident Fund Commissioner Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, TNHB Shopping Cum Office Complex, Chennai - 600 037.
...Respondent
WA.No.1087/2011 The Management of Reynolds Pens India Pvt. Ltd., Plot No.C21, SIPCOT Industrial Park, Irrungattikottai, Pennallur Post, Sriperumbudur Taluk, Kancheepuram - 602 105.
...Appellant 1/9
Vs.
1.The Regional Provident Fund Commissioner-II Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, Ministry of Labour Government of India, No.R-40A, TNHB Office-cum-Shopping Complex, Mugappair, Chennai - 600 087.
2.The Assistant Provident Fund Commissioner Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, Ministry of Labour Government of India, No.R-40A, TNHB Office-cum-Shopping Complex, Mugappair, Chennai - 600 087.
...Respondents
WA.No.1096/2011 The Management of Hinduja Foundries Limited, Plot No.K2, SIPCOT Industrial Park, Arneri Village, Sriperumbadur - 602 105, Rep. by its Managing Director.
...Appellant Vs.
The Regional Provident Fund Commissioner Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, TNHB Shopping Cum Office Complex, Chennai - 600 037.
...Respondent
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. 2/9
(in all WAs) For Appellants : Mr.Anand Gopalan for M/s.T.S.Gopalan & Co.
For Respondents : Ms.Sunita Kumari COMMON JUDGMENT M.S. RAMESH, J.
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.
3/9
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.merriamwebster.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 4/9
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 5/9
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 eligible to get this extra amount beyond the normal work which he was otherwise required to put in. There is no data available on record to show what were the norms of work prescribed for those workmen during the relevant period.
It is therefore not possible to ascertain whether extra amounts paid to the workmen were in fact paid for the extra work which had exceeded the normal output prescribed for the workmen.
who have arrived at a factual conclusion that the allowances in question were essentially a part of the basic wage camouflaged as part of an allowance so as to avoid deduction and contribution accordingly to the provident fund account of the employees. There is no occasion for us to interfere with the concurrent conclusions of facts. The appeals by the establishments therefore merit no interference. Conversely, for the same reason the appeal preferred by the Regional Provident Fund Commissioner deserves to be allowed......"
4. In the light of the aforesaid decision of the Hon'ble Supreme Court in the case of Regional Provident Fund Commissioner (supra), it would be appropriate that the appellants herein be granted liberty to appear before the Adjudicating Authority under Section 7A of the EPF Act and put forth their objections. The Adjudicating Authority, while passing final orders, shall consider the law laid down in the case of Regional Provident Fund Commissioner (supra) and also grant due opportunity to the appellants herein.
5. With the above directions, all the Writ Appeals stand closed. No 7/9
costs. Consequently, connected miscellaneous petitions are closed. [M.S.R., J.] [M.J.R., J.] 15.11.2024 Index:Yes Speaking order hvk To 1.The Regional Provident Fund Commissioner Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, TNHB Shopping Cum Office Complex, Chennai - 600 037.
2.The Regional Provident Fund Commissioner-II Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, Ministry of Labour Government of India, No.R-40A, TNHB Office-cum-Shopping Complex, Mugappair, Chennai - 600 087.
3.The Assistant Provident Fund Commissioner Employees' Provident Fund Organisation, Sub Regional Office, Ambattur, Ministry of Labour Government of India, No.R-40A, TNHB Office-cum-Shopping Complex, Mugappair, Chennai - 600 087.
8/9
M.S. RAMESH, J.
and M.JOTHIRAMAN, J.
hvk Pre-delivery common judgment made in 15.11.2024 9/9