Splitting-up of the Minimum Wages Vs. Basic Wages under EPF - A good article by SK Gupta
Splitting-up of the Minimum Wages Vs. Basic Wages under Employees’ Provident Fund and Misc. Provisions Act,1952
( By: S K Gupta , Advocate , Supreme Court,
25-B, Pocket-I, Mayur Vihar-III, Delhi-110096
M-09891170907,09968097740
Email:skpfdelhi@gmail.com)
Today the main discussions among all of us is that ‘Which component constitutes “Basic Wages” as defined under Section 2(b) of the Employees’ Provident Fund and Misc. Provisions Act, 1952 ( short the “Act,1952”) for the purpose of deduction of the Provident Fund contribution as per Section 6 of the Act,1952 ?.’ This burning topic is now more important to the Provident Fund Consultant(s) , labour Laws Advisor(s) , Corporate sector(s) as well as the small entrepreneur(s)/establishment(s) across country as the recently the Additional Central Provident Fund Commissioner , Employees’ Provident Fund Organization, Bhikaji Cama Place , New Delhi, ( in short the “Addl.C.P.F.C.”) vide his circular dated 23.05.2011 , circulated all their Additional Central Provident Fund Commissioner, Regional Provident Fund Commissioner and Assistant Provident Fund Commissioner to adhere the directions of the aforesaid circular that “Splitting of Minimum wages for the purpose of PF contribution not permissible”. In this circular, the Addl.C.P.F.C. has given reference of Group 4 Securities Guarding Ltd. Vs. RPFC and others, 2004 LLR 540 by which the High Court of Karnataka has categorically upheld the view that RPFCs u/s 7A of the Act can examine and look into the nature of contract entered between the employer and its employees as the pay structure to decide whether the pay is being split up under several heads as a subterfuge to avoid PF contribution. Besides this, The Addl. C.P.F.C. has also given reference of RPFC, Punjab Vs. Shibu Metal Works-1965(1) LLJ 473 and Air Freight Ltd. Vs. State of Karnataka and Ors. 1999 Supp. (1) SCR 22. The Addl. CPFC also took reliance other citation such as Crown Aluminum Works Vs. Workers Union 1958 I LLJ 1 and Air Freight Ltd. Vs. State of Karnataka and ors. 1999 Suppl.(1)SCR 22
When this circular (supra) came in various offices of the RPFCs/APFCs across the country to give effect, lot of questions arises that
(i) Is not right to deduct PF contribution only on basis wages as defined under section 2(f) read along with section 6 of the Act, 1952?
(ii) Or P F Contribution should be deducted on other components such as special allowance, House Rent, conveyance allowance, washing allowance or other similar allowance?
(iii) or PF Contribution should be deducted at least on all components subject to Minimum wages payable under Minimum Wages Act, 1948 as notified by the State Government time to time?
In the midst of all burning questions, let us understand the legal view of “basis wages” based on the legislation definition of basic wages as defined under section 2(b) of the Act, 1952 and the judicial pronouncements of the Apex Court as well as the various High Courts thereof in this respect.
Definition of basic wages as defined under section 2(b) of the Act, 1952.
(b) "basic wages" means all emoluments which are earned by an employee while on duty or 10[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 employee in respect of his employment or of work done in such employment;
(iii) any presents made by the employer;
Section 6 of the Act,1952
6. Contributions and matters which may be provided for in the Scheme
The contribution which shall be paid by the employer to the Fund shall be [twelve per cent] of the basic wages, [dearness allowance and retaining allowance (if any)], for the time being payable to each of the employees [(whether employed by him directly or by or through a contractor)] and the employees' contribution shall be equal to the contribution payable by the employer in respect of him and may, [if any employee so desires be an amount not exceeding [twelve per cent] of his basic wages, dearness allowance and retaining allowance (if any), subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under this section]:
[PROVIDED that in its application to any establishment or class of establishments which the Central Government, after making such inquiry as it deems fit, may, by notification in the Official Gazette specify, this section shall be subject to the modification that for the words [ten per cent], at both the places where they occur, the words [twelve per cent] shall be substituted][PROVIDED FURTHER that] where the amount of any contribution payable under this Act involves a fraction of a rupee, the Scheme may provide for the rounding off of such fraction to the nearest rupee, half of a rupee or quarter of a rupee.
Explanation 1 : For the purposes of this [section], dearness allowance shall be deemed to include also the cash value of any food concession allowed to the employee.
Explanation 2 : For the purposes of this [section], "retaining allowance" means an allowance payable for the time being to an employee of any factory or other establishment during any period in which the establishment is not working, for retaining his services.]
Paragaph 2(f) of the Scheme,1952 “excluded employee” mean—
(i) an employee who, having been a member of the Fund, withdrew the full amount of his accumulations in the Fund under clause (a) or (c) of sub-paragraph (1) of paragraph 69;
(ii) an employee whose pay at the time he is otherwise entitled to become a member of the Fund, exceeds [six thousand and five hundred rupees] per month;
Explanation : --‘Pay’ includes basic wages with dearness allowance [retaining allowance (if any) and cash value of food concessions admissible thereon;]
(iii) [omitted];
(iv) an apprentice.
Paragraph 29 of the Scheme,1952 . Contributions
(1) The contributions payable by the employer under the Scheme shall be at the rate of [ ten per cent] of the [basic wages, dearness allowance (including the cash value of any food concession) and retaining allowance (if any)] payable to each employee to whom the Scheme applies:
Provided that the above rate of contribution shall be [twelve] per cent in respect of any establishment or class of establishments which the Central Government may specify in the Official Gazette from time to time under the first proviso to sub-section (1) of section 6 of the Act.
(2) The contribution payable by the employee under the Scheme, shall be equal to the contribution payable by the employer in respect of such employee:
Provided that in respect of any employee to whom the Scheme applies, the contribution payable by him may, if he so desires, be an amount exceeding [ten per cent] or [twelve per cent], as the case may be, of his basic wages, dearness allowance and retaining allowance (if any) subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under the Act;
(3) The contributions shall be calculated on the basis of [basic wages, dearness allowance (including the cash value of any food concession) and retaining allowance (if any)] actually drawn during the whole month whether paid on daily, weekly, fortnightly or monthly basis.
(4) Each contribution shall be calculated to [the nearest rupee, 50 paise or more to be counted as the next higher rupee and fraction of a rupee less than 50 paise to be ignored.
Based on the legislation intention and interruption “basic wages” thereof , the PF contribution should be deducted on the following component as per section 2(b) read along with section 6 of the Act,1952 and paragraph 29 of the Scheme,1952:-
(i) Basic Wages
(ii) Dearness Allowance
(iii) Retaining Allowance
(iv) Food Concession
The word “pay” is further clearly defined under paragraph 2(f) of the Scheme,1952
Explanation: ‘Pay’ includes basic wages with dearness allowance (retaining allowance (if any) and cash value of food concessions admissible thereon)
The paragraph 29 of the Scheme,1952 clearly empowered the employer to deduct PF on basic wages ,dearness allowance , retaining allowance and food concessions. The employer shall not be under an obligation to pay any contribution over and above his contribution payable under the Act. The relevant wordings of paragraph 29 of the Scheme,1952 is being reproduced as under:-
“………….Provided that in respect of any employee to whom the Scheme applies, the contribution payable by him may, if he so desires, be an amount exceeding [ten per cent] or [twelve per cent], as the case may be, of his basic wages, dearness allowance and retaining allowance (if any) subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under the Act;
(3) The contributions shall be calculated on the basis of [basic wages, dearness allowance (including the cash value of any food concession) and retaining allowance (if any)] actually drawn during the whole month whether paid on daily, weekly, fortnightly or monthly basis.”
In fact, most of the establishment, in view of the clear definition of the basic wages as defined under section 2(b) of the Act,1952 , have not been deducting provident fund contribution on these allowances (supra) or similar allowance as these allowance will come within the scope of the exclusion clause as per Section 2(b) (i) (ii) of the Act.1952 . In view of the clear definition of basic wages as defined under Section 2(b), the employers have not been deducting EPF contribution on these allowances (supra). Now keeping in view of the new circular (supra) , the following relevant question arose for discussion :-
A. whether the special allowance , conveyance allowance and washing allowance or similar allowance could be treated as part of the basic wages or dearness allowance as defined under section 2(f) of the Act,1952 or not”.
B. Whether the respondent is having power to rewrite the definition of the basic wages which has already been defined under the Act,1952 under Section 2(b) read along with Section 6 of the Act,1952 or not ?
Repeatedly, such questions have already been decided by many High Courts, however , based on the ideology of the individual Judges and facts of the each case , the judgments differ on the issue of allowance(s). In 2004 , the Gujarat High Court in the matter of Gujarat Cypromet Ltd. Vs. Asstt. P.F. Commissioner 2005 Lab.I.C. 422, Group 4 Securities Guarding Ltd. Vs. RPFC and others, 2004 LLR 540 and recently judgments pronounced by the MP High Court in the matter of Montage Enterprises Pvt. Ltd Vs. Employees’ Provident Fund ,Indore and Another 2011 LLR867 and the Management of Reynolds Pens India Pvt. Ltd. Kancheepuram and others Vs. Regional Provident Fund Commissioner-II,Chennai 2011 LLR 876 again create a point of discussion among the Advocates. Now , the decision of the Montage Enterprises (supra) as well as the Management of Reynolds Pens India Pvt. Ltd.(supra) created a vacuum for clarification to the Apex Court. However, the Montage Enterprises (supra) has already filed review application before the Hon’ble M P High Court and still it is pending for disposal and the Management of Reynolds Pens India Pvt. also filed writ appeal before the Hon’ble Madras High Court which is pending.
The correct law of basic wages , initially interrupted by the Apex Court in the matter of Bridge and Roof Company way in 1963 ( 1962-II-LLJ-490 ) in paragraph 8 and 9 that ………. “The main question therefore that falls for decision is as to which of these two rival contentions is in consonance with s. 2(b). There is no doubt that "basic wages" as defined therein means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash. If there were no exceptions to this definition, there would have been no difficulty in holding that production bonus whatever be its nature would be included within these terms. The difficulty, however, arises because the definition also provides that certain things will not be included in the term "basic wages", and these are contained in three clauses. The first clause mentions the cash value of any food concession while the third clause mentions that presents made by the employer. The fact that the exceptions contain even presents made by the employer shows that though the definition mentions all emoluments which are earned in accordance with the terms of the contract of employment, care was taken to exclude presents which would ordinarily not be earned in accordance with the terms of the contract of employment. Similarly, though the definition includes "all emoluments" which are paid or payable in cash, the exception excludes the cash value of any food concession, which in any case was not payable in cash. The exceptions therefore do not seem to follow any logical pattern which would be in consonance with the main definition.
9. Then we come to clause (ii). It excludes dearness allowance, house-rent allowance, overtime allowance, bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment. This exception suggests that even though the main part of the definition includes all emoluments which are earned in accordance with the terms of the contract of employment, certain payments which are in fact the price of labour and earned in accordance with the terms of the contract of employment are excluded from the main part of the definition of "basic wages". It is undeniable that the exceptions contained in clause (ii) refer to payments which are earned by an employee in accordance with the terms of his contract of employment. It was admitted by counsel on both sides before us that it was difficult to find any one basis for the exceptions contained in the three clauses. It is clear however from clause (ii) that from the definition of the word "basic wages" certain earnings were excluded, though they must be earned by employees in accordance with the terms of the contract of employment. Having excluded "dearness allowance" from the definition of "basic wages", s. 6 then provides for inclusion of dearness allowance for purposes of contribution. But that is clearly the result of the specific provision in s. 6 which lays down that contribution shall be 6-1/4 per centum of the basic wages, dearness allowance and retaining allowance (if any). We must therefore try to discover some basis for the exclusion in clause (ii) as also the inclusion of dearness allowance and retaining allowance (for any) in s. 6. It seems that the basis of inclusion in s. 6 and exclusion in clause (ii) is that whatever is payable in all concerns and is earned by all permanent employees is included for the purpose, of contribution under s. 6, but whatever is not payable by all concerns or may not be earned by all employees of a concern is excluded for the purpose of contribution. Dearness allowance (for examples is payable in all concerns either as an addition to basic wages or as a part of consolidated wages where a concern does not have separate dearness allowance and basic wages. Similarly, retaining allowance is payable to all permanent employees in all seasonal factories like sugar factories and is therefore included in s. 6; but house-rent allowance is not paid in many concerns and sometimes in the same concern it is paid to some employees but not to others, for the theory is that house-rent is included in the payment of basic wages plus dearness allowance or consolidated wages. Therefore, house-rent allowance which may not be payable to all employees of a concern and which is certainly not paid by all concern is taken out of the definition of "basic wages", even though the basis of payment of house-rent allowance where it is paid is the contract of employment. Similarly, overtime allowance though it is generally in force in all concerns is not earned by all employees of a concern. It is also earned in accordance with the terms of the contract of employment; but because it may not be earned by all employees of a concern it is excluded from "basic wages". Similarly, commission or any other similar allowance is excluded from the definition of "basic wages" for commission and other allowances are not necessarily to be found in all concerns; nor are they necessarily earned by all employees of the same concern, though where they exist they are earned in accordance with the terms of the contract of employment. It seems therefore that the basis for the exclusion in clause (ii) of the exceptions in s. 2(b) is that all that is not earned in all concerns or by all employees of concern is excluded from basic wages. To this the exclusion of dearness allowance in clause (ii) is an exception. But that exception has been corrected by including dearness allowance in s. 6 for the purpose of contribution. Dearness allowance which is an exception in the definition of "basic wages", is included for the propose of contribution by s. 6 and the real exceptions therefore in clause (ii) are the other exceptions beside dearness allowance, which has been included through s. 6.there is no scope for in the matter”.
In the matter of Gujarat Cypromet Ltd.(supra) , the Hon’ble judge , himself written in paragraph no. 15 that ……”In the view that I have taken, I take inspiration from a decision of the Bombay High Court reported in (1995) 2 Lab.LJ 279:1995 Lab IC 775 ( Hindustan Lever Employees Union Vs.R.P.F.C. and Anr. In which it was held that in context of the term “basic wages” as defined under section 2(b) of the said Act unless the payment falls in any one of the specifically mentioned excepted categories, every emolument which is earned by the employee while on duty or on leave or on holiday with wages in either casein accordance with the terms of the contract of employment and which are paid or pay able in case to him must be included within basic wages.” Subsequently, this Hindustan Lever Employees Union Vs.R.P.F.C. and Anr. (Supra) discussed by the Supreme Court in the matter of Manipal Academy of Higher Education Vs. Provident Fund Commissioner LLR 2008 SC 443 and the Hon’ble Supreme court has decided that the payment of earned leave is not basic wages. So, the findings of Gujarat Cypromet Ltd.(supra) is not correct law in view of Manipal Academy case (Supra) and the same is distinguishable on this point alone.
The Madras High Court in the matter of E.I.D. Parry (India) Ltd. Vs. Regional Commissioner, EPF Tamil Nadu and another, 1984-I-LLJ, DB-Madras HC 300 that “We understand by Cl.2 constituting an exception with regard to allowances that speaks of (i) dearness allowance (ii) house rent allowance (iii) over time (iv) bonus (v) commission (vi) or any similar allowance allowances payable to the employees in respect of his employment or of work done in such employment. For instance, uniform allowance is not spoken to here .Therefore, according to the learned Government Pleader, that will not stand excluded. we are unable to agree with this argument. The object of exclusion of certain categories of allowance under clause (ii) in this definition cannot be determined if regard is had to S.6”.
The Hon’ble Madras High Court further clearly pronounced in the matter of the Regional Commissioner, EPF, Tamil Nadu and Pondicherry Vs. Management of Southern Alloy Foundries (P) Ltd., 1982 I LLJ Mad. 28 that “ Thus, it will be seen that this definition of the term “ basic wages” excluded a number of allowance grouped in sub-cl.(ii) of sub-s(b) of S.2. However, under S.6, dearness allowance and retaining allowance allowances were taken into account for the purpose of calculating the contribution. The rationale behind the exclusion under section 2(b) (ii) and inclusion under section 6 was considered by the Supreme Court in the Bridge and Roof Company ( India ) Limited V. Union of India, ( 1962-II L.L.J. 490). The Learned Judge followed that judgment and held that in this case the special allowance was not agreed to be treated by the employer and the employees as part of the basic wages or dearness allowances and therefore , it cannot be included for computation of the contribution payable by the employer under the provision of the Employees Provident Fund and Family Pension Act,1952. As a matter of fact, even the appellant merely stated that as per section 6 of the Employees’ Provident and Miscellaneous Provisions Act, the special allowance should also be deemed to be dearness allowance. But he has not given any reason as to why the same should be deemed to be dearness allowance. It is not the finding of the appellant that the special allowance formed part of dearness allowances, but as he himself states in his order, dated 7th March, 1977, it was only deemed to be dearness allowance. Needless to say that an officer like the appellant has no power to deem something to be something else which it is not , it being the prerogative only of the Legislature. Under these circumstances, the learned Judge was right in allowing the writ petition. We see no justification to interfere with the order of the learned Judge. Hence, the appeal is dismissed”.
Recently the Punjab and Haryana High Court in the matter of Asstt. Provident Fund Commissioner, Gurgoan Vs. M/s G4S Security (India) Ltd. and Another 2011 LLR 316 has clearly pronounced in paragraph 10 that ……. “The laws of interpretation of statute also provides that nothing more is to be read into the language of a statute and the words are to be read and interpreted as they exist to acknowledge the legislative intent.”
The Hon’ble Supreme Court in the matter of Vemareddy Kumarasswamy Reddy & Anr V. State of A.P.,AIR 2006, Supreme Court , 3517 particularly para no. 17 to 20 of the aforesaid judgment which the related to jurisdiction of the interpretation of the quasi-judicial authority. The para 20 narrates that “While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. V. Popular Trading Company, Ujjain (2000(5 )SCC 515). The legislative casus omissus can not be supplied by judicial interpretative process. (see Maulavi Hussein Haji Abraham Umarji V. State of Gujarat and Anr 2004(6)SCC ,672) and State of Jharkhand and Anr. V. Govind Singh (2005(10)SCC 437)”.
Thus, it will be seen that this definition of the term “ basic wages” excluded a number of allowance grouped in sub-cl.(ii) of sub-s(b) of S.2. However, under S.6, dearness allowance and retaining allowance allowances were taken into account for the purpose of calculating the contribution. The rationale behind the exclusion under section 2(b) (ii) and inclusion under section 6 was considered by the Supreme Court in the Bridge and Roof Company ( India ) Limited V. Union of India, ( 1962-II L.L.J. 490) and thereafter, the Apex court in the matter of Manipal Academy of Higher Education Vs. Provident Fund Commissioner LLR 2008 SC 443 , made out basic principles as laid down in Bridge Roof case(supra) on a combined reading of section 2(b) and 6 are as under:-
(a) Where the wages is universally, necessarily and ordinarily paid to all across the board such emoluments are basic wages.
(b) Where the payment is available to be specially paid to those who avail of the opportunity is not basic wages . By way of example it was held that overtime allowance , through it is generally in force in all concern is not earned by all employees of a concern . It is also earned in accordance with the terms of the contract of employment but because it may not be earned by all employees of a concern , it is excluded from basic wages.
(c) Conversely, any payment by way of a special incentive or work is not basic wages.
When HRA is paid all across the board, then as per the Manipal Academy (supra)’s principles, HRA should be basic wages but it is already excluded from basic wages by exclusion clause 2(b)(ii). Once the legislature excluded no. of allowance(s) by writing a word i.e. similar allowance in the exclusion clause itself so it has to be excluded from the purview from the basic wages. The dispute of allowances, repeatedly discussed in the Central Board of Trustees’ meeting and the Central Provident Fund Commissioner, EPFO, Delhi, on the approval of Central Board of Trustees, Employees’ Provident Fund, Delhi, circulated time to time that certain allowances are not forming part of basic wages for deduction of PF contribution.
The Employees’ Provident Fund Appellate Tribunal, New Delhi repeatedly taken a view that on allowance the contribution is not payable:
I. V. M Salgaocar & Bros. Pvt. Ltd. Vs. APFC , Panji , ATA 96(9)2005
II. Old Anchor Vs. APFC , Goa ,
ATA 69(9)2007
III. Rank Cranes Pvt. Ltd. Vs. APFC , Hyderabad , ATA 208(1)2001
IV. Orbit Park In Pvt. Ltd. Vs. APFC, Rajkot, ATA 203(5)2007
V. Elegance Technological Maintenance Pvt. Ltd Vs. APFC, Rajkot ATA 850(5)2008
Dispute of splitting of Minimum wages , in view of latest circular of the Addl. Central Provident Fund Commissioner, Delhi.
The Addl. CPFC , while issuing the circular (supra) , has completely ignored the fact that the Minimum Wages Act, 1948 was a prior enactment to the Act of 1952 and whereas, ‘wages’, as defined under section 2(h) of the Minimum Wages Act, 1948, specifically includes house rent allowance and did not exclude other similar allowances. The Act of 1952 contains a distinct and separate definition of ‘basic wages’ under section 2(b), which specifically excludes house rent allowance and other similar allowances, from which it is more than apparent that the legislature, in itself wisdom, had consciously not provided in the Act of 1952 that the payment of provident fund contribution has to be on not less than the minimum wages, prescribed under the Minimum Wages Act, 1948, as otherwise they would have adopted the same definition of ‘wages’ in the Act of 1952 also and/or provided that the provident fund contribution would not be, in any case, on not less than the minimum wages, prescribed under the Minimum Wages Act, 1948. The Central Provident Fund Commissioner , while issuing the circular (supra) , also completely ignored the relevant judgment of Ld. Single Judge of the Hon'ble Punjab and Haryana High Court dated 1.2.2011 in C.W.P. No. 15343/2009, filed by the Assistant Provident Fund Commissioner, Gurgaon against M/s. G4S Security Services (India) Ltd., 2011 LLR 316 P&H HC. In this judgment , while considering the definition of ‘wages’ under section 2(h) of the Minimum Wages Act, 1948 and of the ‘basic wages’ under section 2(b) of the Act,1952 had categorically held that the definitions were manifestly distinct and that the contention of the Provident Fund Department that minimum wages fixed under the Minimum Wages Act, 1948 were to be taken into consideration for determining the provident fund contribution was misplaced and the employer had rightly excluded certain allowances, such as house rent allowance, conveyance and washing allowance while determining the liability towards the fund. In fact, the said judgment was challenged by the Assistant Provident Fund Commissioner, Gurgaon by filing Letters Patent Appeal, L.P.A. No. 1139/2011 (O&M) and a Division bench upheld the decision of the single judge and pronounced through a reasoned order categorically holding that there was no compulsion to hold that the definition of ‘basic wages’ should be equated to the definition of ‘minimum wages’ under the Minimum Wages Act, 1948. The said judgment reported in 2011 LLR 943. Subsequently , the Hon’ble Delhi High Court has also confirmed the views of the Punjab and Haryana High Court in the matter of Group04 Securitas Guarding Vs. EPFAT, 2012 LLR 22 .
In fact, the Addl. CPFC, while issuing circular (supra) relied the dictionary meaning of the terms ‘basic wages’ and ‘minimum wages’ as defined in Oxford Dictionary for seeking to interpret the definition of ‘basic wages’ under section 2(b) of the Act, 1952. In doing so, they completely ignored the basic and fundamental principles of interpretation of statute that if a self-contained and complete code in itself defines a particular term in clear and unequivocal language, then resort cannot be had to any external source, including any dictionary meaning or provisions of any other Act for seeking to interpret the term contained in the Act. Accordingly, since the Act,1952 is a self-contained and complete code in itself providing for a clear and unequivocal definition of ‘basic wages’ under section 2(b) of the Act,1952 nothing can be added and subtracted from the plain meaning of the definition by having resort to any dictionary meaning or the provisions of the Minimum Wages Act, 1948. The definition of ‘wages’ under section 2(h) of the Minimum Wages Act, 1948 specifically includes house rent allowance and therefore, if house rent allowance is being separately paid by an employer apart from basic wages, then the house rent allowance would be included for determining whether the minimum wages, prescribed under the Minimum Wages Act, 1948, are being paid and similarly since the definition of ‘basic wages’, contained under section 2(b) of the Act, specifically excludes house rent allowance and other similar allowances and section 6, apart from basic wages only includes dearness allowance and retaining allowance, if any, if an employer is paying house rent allowance and other similar allowances separately, then said allowances would not be taken into consideration for the purpose of provident fund contribution and both the Minimum Wages Act, 1948 and the Act of 1952 specifically recognize the right of the employer to split the total remuneration by separately paying house rent allowance and other similar allowances. Therefore, it could not have been validly held that the ‘basic wages’, under the Act, must not be less than the minimum wages, prescribed under the Minimum Wages Act, 1948 and they should not be split up. The judgment of the Hon'ble Supreme Court, in the case of Air Freight Ltd. Vs. State of Karnataka and others, 1999 Supp. (1) SCR 22, was with regard to fixation of minimum wages by the appropriate Government under the Minimum Wages Act, 1948 and it did not preclude the employer from splitting the minimum wages by providing separate house rent allowance and other similar allowances, which were part of definition of ‘wages’ as contained in section 2(h) of the Minimum Wages Act, 1948 and besides, the said judgment was not delivered in the context of the definition of ‘basic wages’ contained in section 2(b) of the Act,1952. The reliance upon the said judgment in the circular for holding that provident fund contributions are not to be remitted on wages less than the minimum wages is, therefore, entirely misconceived and baseless. That the Hon’ble Supreme Court in the matter of AIR 1999 SUPREME COURT 2459 "Airfreight Ltd. v. State of Karnataka" has held that “Minimum rate of wages fixed under the Act is remuneration payable to the worker as one package of fixed amount. In cases where minimum wage is linked with the cost of living index, the amount paid on the basis of dearness allowance is not to be taken as an independent component of the minimum wages but as part and parcel of the process of computing the rates of minimum wages which is to be determined after taking into consideration the cost of various necessities.”
The EPF Appellate Tribunal in many appeals had taken a view that minimum wages is not defined under the Act, 1952 and pronounced in several matter that …. “The perusal of the section makes it clear that the Authority has the power to resolve the dispute regarding the payment of dues but it has no power to hold whether minimum wages amount to basic wage or not or whether the payment was made as per Minimum Wages Act or not. In this case in hand the authority has assessed the dues on the basis of Minimum Wages Act so the same is not legal.”
The following final order(s) in respect of the Minimum Wages dispute was recently pronounced by the Tribunal:-
1. Benchmark Infocom (P) Ltd. Vs. RPFC-Indore , ATA 364(8)2009
2. Hotel Shree Maya Vs. RPFC , Indore , ATA 536(8)2009
3. E-Ruchi Marketing(P) Ltd. Vs. RPFC, Indore , ATA 278(8)2010
4. Bhagurath Coach & Metal Fabrication Ltd. Vs. RPFC ,ATA493(8)2009
5. Pakija Textile (P) Ltd. Vs. RPFC , ATA 130(8)10
The final order(s) in the matter of the Group 4 Security Services (India) Ltd which were also pronounced by the Presiding Officer, Employees’ Provident Fund Appellate Tribunal, New Delhi which are as under:-
1. Group 4 Security India Ltd. ATA 4 (17)99
2. Group 4 Security India Ltd. ATA 223(16)2006
3. Group 4 Security India Ltd. ATA 710(17)2006
4. Group 4 Security India Ltd. ATA 627(16)2006
So, in view of the clear judgment of the Punjab and Haryana High Court in the matter of Assistant Provident Fund Commissioner, Gurgaon against M/s. G4S Security Services (India) Ltd., 2011 LLR 316 P&H HC which is upheld by the Division Bench, L.P.A. No. 1139/2011 (O&M) on 20th July’2011 ( 2011 LLR 943). In fact , the Division bench upheld the decision of the single judge and pronounced through a reasoned order categorically holding that there was no compulsion to hold that the definition of ‘basic wages’ should be equated to the definition of ‘minimum wages’ under the Minimum Wages Act, 1948. Not only this, the Employees’ Provident Fund Appellate Tribunal, New Delhi repeatedly has been taking view that the 7A authority can not decided the dispute in respect of minimum wages saying that …. “The perusal of the section makes it clear that the Authority has the power to resolve the dispute regarding the payment of dues but it has no power to hold whether minimum wages amount to basic wage or not or whether the payment was made as per Minimum Wages Act or not. In this case in hand the authority has assessed the dues on the basis of Minimum Wages Act so the same is not legal.”
The Regional Provident Fund Commissioner or Assistant Provident Fund Commissioner, while passing the 7A order, they have been mentioning in the 7A order either Group 4 Securities Guarding Ltd. Vs. RPFC and others, 2004 LLR 540 or Gujarat Cypromet Ltd. Vs. Asstt. P.F. Commissioner 2005 Lab.I.C. 422.Both the judgments are distinguishable, Group 4 Securities Guarding Ltd.(supra) , the matter had reached Supreme Court , Special Leave to appeal (Civil) No. 12318 of 2004 and the Supreme Court clearly pronounced that “ we are not inclined to interfere with the order of remand passed by the High Court. The special Leave Petition is dismissed. The observations made by the Division Bench in its order should not be taken as conclusive but as tentative only and the authorities would be at liberty to decide the matter in accordance with law on its merits with out being influenced by them”. Accordingly, the Supreme Court had held that this judgment will not have binding effect.
In case of the Gujarat Cypromet Ltd. Vs. Asstt. P.F. Commissioner (supra), the Gujarat High has granted stay order against the aforesaid and still pending before the Gujarat High Court so effect of the aforesaid judgment can not be given unless the Gujarat High Court decides the matter finally. Moreover, in this judgment , the Hon’ble judge , himself written in paragraph no. 15 that ……”In the view that I have taken, I take inspiration from a decision of the Bombay High Court reported in (1995) 2 Lab.LJ 279:1995 Lab IC 775 ( Hindustan Lever Employees Union Vs.R.P.F.C. and Anr. In which it was held that in context of the term “basic wages” as defined under section 2(b) of the said Act unless the payment falls in any one of the specifically mentioned excepted categories, every emolument which is earned by the employee while on duty or on leave or on holiday with wages in either casein accordance with the terms of the contract of employment and which are paid or pay able in case to him must be included within basic wages.” Subsequently, this Hindustan Lever Employees Union Vs.R.P.F.C. and Anr. (Supra) was discussed by the Supreme Court in the matter of Manipal Academy of Higher Education vs. Provident Fund Commissioner LLR 2008 SC 443. Since the Supreme Court in the matter Manipal Academy case (supra) has already decided that the payment of earned leave do not fall within definition of basis wages as defined under the Act,1952 so the findings of Gujarat Cypromet Ltd.(supra) which is made out based Hindustan Lever case(supra), is now incorrect law and the same is distinguishable on this point alone.
So, in view of the clear judgment of the Punjab and Haryana High Court in the matter of Assistant Provident Fund Commissioner, Gurgaon against M/s. G4S Security Services (India) Ltd., 2011 LLR 316 P&H HC which is upheld by the Division Bench, L.P.A. No. 1139/2011 (O&M) on 20th July’2011 ( 2011 LLR 943) and consistent view taken by the EPF Appellate Tribunal in their final order(s) quoted above, the Regional Provident Fund Commissioner or Assistant Provident Fund Commissioner has no right under the Act,1952 to decide the dispute of minimum wages or direct the establishment or employer to remit the Provident Fund on minimum wages prescribed by the State Government time to time.
S K Gupta, Advocate
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