M/S Big Kids Kemp vs The Assistant Provident Fund ... on 5 March, 2014

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Karnataka High Court

M/S Big Kids Kemp vs The Assistant Provident Fund ... on 5 March, 2014

Bench: Ram Mohan Reddy

                           1

                                            W.P.10957/11

IN THE HIGH COURT OF KARNATAKA, BANGALORE

    DATED THIS THE 5TH DAY OF MARCH, 2014

                       BEFORE

  THE HON'BLE MR.JUSTICE RAM MOHAN REDDY

        WRIT PETITION NO. 10957/2011 [L-PF]

BETWEEN:

M/S. BIG KIDS KEMP
M.G. ROAD
BANGALORE - 560 001
REP. BY ITS MANAGING PARTNER -
MR. RAVI MELWANI
                                          ... PETITIONER

(BY SRI. SOMASHEKAR, ADV., FOR
SRI. S.N. MURTHY ASSOCIATES, ADVOCATE)

AND :

THE ASSISTANT PROVIDENT
FUND COMMISSIONER [COMPLIANCE]
EMPLOYEES' PROVIDENT FUND
ORGANISATION
'BHAVISHYANIDHI BHAVAN'
P.B. No.25146, No.13,
RAJA RAMMOHAN ROY ROAD
BANGALORE - 560 025
                                         ... RESPONDENT
(BY SRI. RAJESH SHETTIGAR, ADV., FOR
SRI. HARIKRISHNA S. HOLLA, ADV.,)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER OF THE EPF TRIBUNAL DTD. 22.12.2010 VIDE ANN-F
AND ETC.

      THIS WRIT PETITION COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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                                                            W.P.10957/11

                              ORDER

Petitioner - Establishment covered under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 [for short 'Act'], aggrieved by the order dated 22.7.2008 Annexure-B of the Assistant Provident Fund Commissioner [Compliance] in a proceeding under section 7A of the Act, preferred an appeal under section 7-I of the Act to the Employees Provident Fund Appellate Tribunal, whence the appeal was dismissed by order dated 22.12.2010 Annexure-F. Hence this petition.

2. Heard learned counsel for the parties, perused the pleadings and examined the orders impugned. Suffice it to notice that in the order Annexure-B the Assistant Provident Fund Commissioner has raised the following question for decision making -

W.P.10957/11

"Whether the EASP and outfit allowance is to be treated as basic wages or dearness allowance and should be subjected to provident fund deductions or not?"

3. The Assistant Provident Fund Commissioner, though noticed the principles laid down by the Apex Court in 'BRIDGE & ROOF COMPANY [INDIA] LTD., & OTHERS v. UNION OF INDIA AND OTHERS'1, concluded that the EASP and outfit allowance constitute basic wage for the purposes of the Act.

4. The Employees Provident Fund Appellate Tribunal, instead of considering the appeal filed by the petitioner over the conclusions arrived at by the Assistant Provident Fund Commissioner's order Annexure-B, dismissed the appeal in the order impugned, on the following premise: 1

1962 [5] FLR 423 4 W.P.10957/11 "10. In this case, there is no material to hold that the allowance paid for the work done beyond the schedule working hour. So allowances are treated as basic wage"

5. Apparently, the Employees Provident Fund Appellate Tribunal did not apply its mind to the facts, circumstances and the point for consideration and therefore, prima facie, the order suffers from perverse findings and conclusions. The error is apparent on the face of the record, calling for interference.

6. In the result, this petition is allowed in part. The order dated 22.12.2010 Annexure-F of the Employees Provident Fund Appellate Tribunal is quashed and the proceeding remitted for consideration afresh and to pass order strictly in accordance with law and in the light of the observations made supra.

Sd/-

JUDGE AN/-

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