Vivekananda Vidyamandir & others vs RPFC, WB, & Surya Roshini vs EPFO -SC judgement in the dispute on basic wages and dearness allowance - Feb 2019

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO(s). 6221 OF 2011
THE REGIONAL PROVIDENT FUND
COMMISSIONER (II) WEST BENGAL
...APPELLANT(S)
VERSUS
VIVEKANANDA VIDYAMANDIR AND OTHERS ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(s). 39653966
OF 2013
SURYA ROSHNI LTD. ...APPELLANT(S)
VERSUS
EMPLOYEES PROVIDENT FUND
AND OTHERS ...RESPONDENT(S)
CIVIL APPEAL NO(s). 39693970
OF 2013
UFLEX
LTD. ...APPELLANT(S)
VERSUS
EMPLOYEES PROVIDENT FUND
AND ANOTHER ...RESPONDENT(S)
CIVIL APPEAL NO(s). 39673968
OF 2013
MONTAGE ENTERPRSES PVT. LTD. ...APPELLANT(S)
VERSUS
EMPLOYEES PROVIDENT FUND
AND ANOTHER ...RESPONDENT(S)
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TRANSFER CASE (C) NO(s).19 OF 2019
(arising out of T.P.(C)No. 1273 OF 2013)
THE MANAGEMENT OF
SAINTGOBAIN
GLASS INDIA LTD. ...PETITIONER(S)
VERSUS
THE REGIONAL PROVIDENT FUND
COMMISSIONER, EMPLOYEES’
PROVIDENT FUND ORGANISATION ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellants with the exception of Civil Appeal No. 6221
of 2011, are establishments covered under the Employees’
Provident Fund and Miscellaneous Provisions Act, 1952
(hereinafter referred to as the “Act”). The appeals raise a
common question of law, if the special allowances paid by an
establishment to its employees would fall within the expression
“basic wages” under Section 2(b)(ii) read with Section 6 of the Act
for computation of deduction towards Provident Fund. The
appeals have therefore been heard together and are being
disposed by a common order.
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2. It is considered appropriate to briefly set out the individual
facts of each appeal for better appreciation.
Civil Appeal No. 6221 of 2011 : The respondent is an
unaided school giving special allowance by way of incentive to
teaching and nonteaching
staff pursuant to an agreement
between the staff and the management. The incentive was
reviewed from time to time upon enhancement of the tuition fees
of the students. The authority under the Act held that the
special allowance was to be included in basic wage for deduction
of provident fund. The Single Judge set aside the order. The
Division Bench initially after examining the salary structure
allowed the appeal on 13.01.2005 holding that the special
allowance was a part of dearness allowance liable to deduction.
The order was recalled on 16.01.2007 at the behest of the
respondent as none had appeared on its behalf. The subsequent
Division Bench dismissed the appeal holding that the special
allowance was not linked to the consumer price index, and
therefore did not fall within the definition of basic wage, thus not
liable to deduction.
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Civil Appeal Nos. 396566
of 2013: The appellant was paying
basic wage + variable dearness allowance(VDA) + house rent
allowance(HRA) + travel allowance + canteen allowance + lunch
incentive. The special allowances not having been included in
basic wage, deduction for provident fund was not made from the
same. The authority under the Act held that only washing
allowance was to be excluded from basic wage. The High Court
partially allowed the writ petition by excluding lunch incentive
from basic wage. A review petition against the same by the
appellant was dismissed.
Civil Appeal Nos. 396970
of 2013: The appellant was not
deducting Provident Fund contribution on house rent allowance,
special allowance, management allowance and conveyance
allowance by excluding it from basic wage. The authority under
the Act held that the allowances had to be taken into account as
basic wage for deduction. The High Court dismissed the writ
petition and the review petition filed by the appellant.
Civil Appeal Nos. 396768
of 2013: The appellant company
was not deducting Provident Fund contribution on house rent
allowance, special allowance, management allowance and
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conveyance allowance by excluding it from basic wage. The
authority under the Act held that the special allowances formed
part of basic wage and was liable to deduction. The writ petition
and review petition filed by the appellant were dismissed.
Transfer Case (C) No.19 of 2019 (arising out of T.P. (C) No.
1273 of 2013): The petitioner filed W.P. No. 25443 of 2010
against the show cause notice issued by the authority under the
Act calling for records to determine if conveyance allowance,
education allowance, food concession, medical allowance, special
holidays, night shift incentives and city compensatory allowance
constituted part of basic wage. The writ petition was dismissed
being against a show cause notice and the statutory remedy
available under the Act, including an appeal. A Writ Appeal
(Civil) No.1026 of 2011 was preferred against the same and which
has been transferred to this Court at the request of the petitioner
even before a final adjudication of liability.
3. We have heard learned Additional Solicitor General, Shri
Vikramajit Banerjee and Shri Sanjay Kumar Jain appearing for
the Regional Provident Fund Commisioner and Shri Ranjit
Kumar, learned Senior Counsel who made the lead arguments
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on behalf of the Establishmentappellants,
and also Mr. Anand
Gopalan, learned counsel appearing for the petitioner in the
transfer petition.
4. Shri Vikramajit Banerjee, learned Additional Solicitor
General appearing for the appellant in Civil Appeal No. 6221 of
2011, submitted that the special allowance paid to the teaching
and nonteaching
staff of the respondent school was nothing but
camouflaged dearness allowance liable to deduction as part of
basic wage. Section 2(b)(ii) defined dearness allowance as all
cash payment by whatever name called paid to an employee on
account of a rise in the cost of living. The allowance shall
therefore fall within the term dearness allowance, irrespective of
the nomenclature, it being paid to all employees on account of
rise in the cost of living. The special allowance had all the
indices of a dearness allowance. A bare perusal of the breakup
of the different ingredients of the salary noticed in the earlier
order of the Division Bench dated 13.01.2005 makes it apparent
that it formed part of the component of pay falling within
dearness allowance. The special allowance was also subject to
increment on a time scale. The Act was a social beneficial
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welfare legislation meant for protection of the weaker sections of
the society, i.e. the workmen, and was therefore, required to be
interpreted in a manner to subserve
and advance the purpose of
the legislation. Under Section 6 of the Act, the appellant was
liable to pay contribution to the provident fund on basic wages,
dearness allowance, and retaining allowance (if any). To exclude
any incentive wage from basic wage, it should have a direct
nexus and linkage with the amount of extra output. Relying on
Bridge and Roof Co. (India) Ltd. vs. Union of India, (1963) 3
SCR 978, it was submitted that whatever is payable by all
concerns or earned by all permanent employees had to be
included in basic wage for the purpose of deduction under
Section 6 of the Act. It is only such allowances not payable by
all concerns or may not be earned by all employees of the
concern, that would stand excluded from deduction. It is only
when a worker produces beyond the base standard, what he
earns would not be a basic wage but a production bonus or
incentive wage which would then fall outside the purview of
basic wage under Section 2(b) of the Act. Since the special
allowance was earned by all teaching and nonteaching
staff of
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the respondent school, it has to be included for the purpose of
deduction under Section 6 of the Act. The special allowance in
the present case was a part of the salary breakup payable to all
employees and did not have any nexus with extra output
produced by the employee out of his allowance, and thus it fell
within the definition of “basic wage”.
5. The common submission on behalf of the appellants in the
remaining appeals was that basic wages defined under Section
2(b) contains exceptions and will not include what would
ordinarily not be earned in accordance with the terms of the
contract of employment. Even with regard to the payments
earned by an employee in accordance with the terms of contract
of employment, the basis of inclusion in Section 6 and exclusion
in Section 2(b)(ii) is that whatever is payable in all concerns and
is earned by all permanent employees is included for the
purpose of contribution under Section 6. But whatever is not
payable by all concerns or may not be earned by all employees of
a concern are excluded for the purposes of contribution.
Dearness allowance was payable in all concerns either as an
addition to basic wage or as part of consolidated wages.
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Retaining allowance was payable to all permanent employees in
seasonal factories and was therefore included in Section 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, and would therefore stand excluded from basic
wage. Likewise overtime allowance though in force in all
concerns, is not earned by all employees and would again stand
excluded from basic wage. It is only those emoluments earned
by an employee in accordance with the terms of employment
which would qualify as basic wage and discretionary allowances
not earned in accordance with the terms of employment would
not be covered by basic wage. The statute itself excludes certain
allowance from the term basic wages. The exclusion of dearness
allowance in Section 2(b)(ii) is an exception but that exception
has been corrected by including dearness allowance in Section 6
for the purpose of contribution.
6. Attendance incentive was not paid in terms of the contract
of employment and was not legally enforceable by an employee.
It would therefore not fall within basic wage as it was not paid to
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all employees of the concern. Likewise, transport/conveyance
allowance was similar to house rent allowance, as it was
reimbursement to an employee. Such payments are ordinarily
not made universally, ordinarily and necessarily to all employees
and therefore will not fall within the definition of basic wage. To
hold that canteen allowance was paid only to some employees,
being optional was not to be included in basic wage while
conveyance allowance was paid to all employees without any
proof in respect thereof was unsustainable.
7. Basic wage, would not ipsofacto
take within its ambit the
salary breakup structure to hold it liable for provident fund
deductions when it was paid as special incentive or production
bonus given to more meritorious workmen who put in extra
output which has a direct nexus and linkage with the output by
the eligible workmen. When a worker produces beyond the base
or standard, what he earns was not basic wage. This incentive
wage will fall outside the purview of basic wage.
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8. We have considered the submissions on behalf of the
parties. To consider the common question of law, it will be
necessary to set out the relevant provisions of the Act for
purposes of the present controversy.
“Section 2 (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), houserent
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: Contributions and matters which may be
provided for in Schemes. – The contribution which
shall be paid by the employer to the Fund shall be
ten percent. 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 exceeding ten percent 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
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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 percent”, at both the places where
they occur, the words “12 percent” 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
rounding off of such fraction to the nearest rupee,
half of a rupee, or quarter of a rupee.
Explanation I – 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 II. – For the purposes of this section,
“retaining allowance” means 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.”
9. Basic wage, under the Act, has been defined as all
emoluments paid in cash to an employee in accordance with the
terms of his contract of employment. But it carves out certain
exceptions which would not fall within the definition of basic
wage and which includes dearness allowance apart from other
allowances mentioned therein. But this exclusion of dearness
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allowance finds inclusion in Section 6. The test adopted to
determine if any payment was to be excluded from basic wage is
that the payment under the scheme must have a direct access
and linkage to the payment of such special allowance as not
being common to all. The crucial test is one of universality. The
employer, under the Act, has a statutory obligation to deduct the
specified percentage of the contribution from the employee’s
salary and make matching contribution. The entire amount is
then required to be deposited in the fund within 15 days from
the date of such collection. The aforesaid provisions fell for
detailed consideration by this Court in Bridge & Roof (supra)
when it was observed as follows:
“7. 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
13
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.
8. Then we come to clause (ii). It excludes dearness
allowance, houserent
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
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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 61/
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 houserent
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
houserent
is included in the payment of basic
wages plus dearness allowance or consolidated
wages. Therefore, houserent
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 houserent
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
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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.”
10. Any variable earning which may vary from individual to
individual according to their efficiency and diligence will stand
excluded from the term “basic wages” was considered in Muir
Mills Co. Ltd., Kanpur Vs. Its Workmen, AIR 1960 SC 985
observing:
“11. Thus understood "basic wage" never
includes the additional emoluments which some
workmen may earn, on the basis of a system of
bonuses related to the production. The quantum
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of earning in such bonuses varies from
individual to individual according to their
efficiency and diligence; it will vary sometimes
from season to season with the variations of
working conditions in the factory or other place
where the work is done; it will vary also with
variations in the rate of supplies of raw material
or in the assistance obtainable from machinery.
This very element of variation, excludes this part
of workmen's emoluments from the connotation
of "basic wages"…”
11. In Manipal Academy of Higher Education vs. Provident
Fund Commissioner, (2008) 5 SCC 428, relying upon Bridge
Roof’s case it was observed:
“10. The basic principles as laid down in Bridge
Roof's case (supra) on a combined reading of
Sections 2(b) and 6 are as follows:
(a) Where the wage 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, 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.
(c) Conversely, any payment by way of a special
incentive or work is not basic wages.”
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12. The term basic wage has not been defined under the Act.
Adverting to the dictionary meaning of the same in Kichha
Sugar Company Limited through General Manager vs. Tarai
Chini Mill Majdoor Union, Uttarakhand, (2014) 4 SCC 37, 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
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
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encashment and overtime wages is not fit to be
included for calculating 15% of the Hill
Development Allowance.”
13. That the Act was a piece of beneficial social welfare
legislation and must be interpreted as such was considered in
The Daily Partap vs. The Regional Provident Fund
Commissioner, Punjab, Haryana, Himachal Pradesh and
Union Territory, Chandigarh, (1998) 8 SCC 90.
14. 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
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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. The wage structure and the
components of salary have been examined on facts, both by the
authority and the appellate authority under the Act, 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.
15. Resultantly, Civil Appeal No. 6221 of 2011 is allowed. Civil
Appeal Nos. 396566
of 2013, Civil Appeal Nos. 396768
of 2013,
Civil Appeal Nos. 396970
of 2013 and Transfer Case (C) No.19
of 2019 are dismissed.
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.……………………….J.
(Arun Mishra)
………………………..J.
(Navin Sinha)
New Delhi,
February 28, 2019
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