Mishra and Navin Sinha, JJ.] v. Vivekananda Vidyamandir and Others

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 t he 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. 2. It is considered appropriate to briefly set out the indi vidual 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 non- teaching staff pursuant to an agreement between the s taff and the management. The incentive was reviewed from time to t ime 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 pa rt 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 hol ding that the special allowance was not linked to the consumer price i ndex, and therefore did not fall within the definition of basic wage , thus not liable to deduction. Civil Appeal Nos. 3965-66 of 2013 : The appellant was paying basic wage + variable dearness allowance(VDA) + hou se rent allowance(HRA) + travel allowance + canteen allowanc e + 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 excl uded from basic wage. The High Court partially allowed the writ petition by 279 excluding lunch incentive from basic wage. A review petition against the same by the appellant was dismissed. Civil Appeal Nos. 3969-70 of 2013 : The appellant was not deducting Provident Fund contribution on house rent allowance, special allowance, management allowance and conveyance allow ance 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. 3967-68 of 2013 : The appellant company 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 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 unde r 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 Gener al, 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 on behal f of the Establishment-appellants, 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 non-teaching staff of the respondent school was nothing but camouflaged dearness allowance REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v. VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.] 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, irrespe ctive 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 dearnes s allowance. A bare perusal of the breakup of the different ingredients of the salary noticed in the earlier order of the Divi sion Bench dated 13.01.2005 makes it apparent that it formed part of the compo nent of pay falling within dearness allowance. The special allowance was also subject to increment on a time scale. The Act was a soci al beneficial 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 sub-serve and advance the purpose of the leg islation. 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 exclu ded 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 non-teaching staff of 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 Sectio n 2(b) contains exceptions and will not include what would ordinarily not be earned in accordance with the terms of the contract of employm ent. 281 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 consolidate d wages. Retaining allowance was payable to all permanent employees in seasonal factories and was therefore included in Section 6. But, hous e rent allowance is not paid in many concerns and sometimes in the sam e concern, it is paid to some employees but not to others, a nd 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 emo luments earned by an employee in accordance with the terms of employ ment 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 S ection 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 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 ipso-facto 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 REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v. VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.] produces beyond the base or standard, what he earns was not basi c wage. This incentive wage will fall outside the purview of basic wage. 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), house-rent allowance, overtime allowa nce, 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, dea rness allowance and retaining allowance, if any, for the time bei ng payable to each of the employees whether employed by him directly or by or through a contractor, and the empl oyees’ 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 and above his contribution payable under this section: Provided that in its application to any establishment or c lass 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: 283 Provided further that where the amount of any contribution payable under this Act involves a fraction of a rupee, the Scheme m ay 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, “r etaining allowance” means allowance payable for the time being to a n employee of any factory or other establishment during any period in which the establishment is not working, for retain ing 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 include s dearness allowance apart from other allowances mentioned therein. But this exclusion of dearness allowance finds inclusion in Section 6. The test adopted to determine if any payment wasto be excluded from b asic wage is that the payment under the scheme must have a dir ect access and linkage to the payment of such special allowance as not being common to all. The crucial test is one of universality. The e mployer, under the Act, has a statutory obligation to deduct the specified percentage of the contribution from the employee’s salary and make matc hing contribution. The entire amount is then required to be deposited in the fund within 15 days from the date of such collection. The afores aid 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 t here 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 REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v. VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.] 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 prese nts which would ordinarily not be earned in accordance with the terms of the contract of employment. Similarly, though the definit ion 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 , 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. Thi s 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 t he terms of the contract of employment are excluded from the main part of the definition of “basic wages”. It is undeniabl e that the exceptions contained in clause (ii) refer to payments whic h 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 basi s for the exceptions contained in the three clauses. It is clear howeve r 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 contr act 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 t hat 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 285 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 conc erns 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 payme nt 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 w ages”. 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 t he 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 empl oyees 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.” REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v. VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.] 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 of earning in such bonuses varies from individual to indivi dual 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 elem ent 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 con tract of employment but because it may not be earned by all emplo yees 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.” 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: 287 REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v. VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.] “9. According to http://www.merriam-webster.com (Mer riam 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 suc h 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 al so the dictionary meaning. In our opinion, those wages whic h 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 e ach 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 a mount received as leave 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 w elfare legislation and must be interpreted as such was considered in TheDaily Partap vs. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chan digarh , (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 de monstrate 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 we re 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 workma n 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 possi ble 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 cam ouflaged 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 Provi dent Fund Commissioner deserves to be allowed. 15. Resultantly, Civil Appeal No. 6221 of 2011 is allowed. Civil Appeal Nos. 3965-66 of 2013, Civil Appeal Nos. 3967-68 of 2013, Civil Appeal Nos. 3969-70 of 2013 and Transfer Case (C) No.19 of 2019 are dismissed. Nidhi Jain Appeals disposed of.