Full Judgment Text
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 10 October, 2023
+ LPA 712/2012, CM APPL. 18237/2012 & CM APPL.
18238/2012
REGIONAL PROVIDENT FUND COMMISSIONER
..... Appellant
Through: Mr. Rajesh Kumar (SC EPFO),
Ms. Ramneet Kuar, Mr. Shivam
Singh, & Ms. Mishika Pandita,
Advocates.
versus
GROUP 4 SECURITY GUARDING LTD
..... Respondent
Through: Mr. Amitabh Chaturvedi, Mr.
Ankit Monga, Mr. Prakriti
Jalan, Advs.
+ LPA 713/2012, CM APPL. 18240/2012 & CM APPL.
18241/2012
REGIONAL PROVIDENT FUND COMMISSIONER
..... Appellant
Through: Ms. Inderjeet Sidhu, Adv.
versus
WHIRLPOOL OF INDIA LTD ..... Respondent
Through: None .
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
VIBHU BAKHRU, J.
Signature Not Verified
LPA 712/2012 & LPA 713/2012 Page 1 of 6
Digitally Signed
By:HARMINDER KAUR
Signing Date:18.10.2023
15:49:34
1. The appellant has filed the present intra-court appeals
impugning an order dated 20.09.2011 (hereafter ‘ the impugned
order ’), passed by the learned Single Judge, whereby the respective
petitions filed by the respondents were disposed of.
2. The principal controversy involved in these appeals is whether
Section 6 of the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 (hereafter ‘ EPF Act ’) casts an obligation on the
employer to contribute to the provident fund in respect of wages and
allowances other than the basic wages payable to the employees.
According to the appellant, the respondents are liable to contribute to
the provident fund not only on the basis of basic wages, but also
taking into account minimum wages, dress allowance, and conveyance
allowance.
3. The learned Single Judge had noted the definition of basic
wages under Section 2(b) of the EPF Act, and had observed that the
definition of the term “basic wages” did not include dearness
allowance, house rent allowance, overtime allowance, bonus,
commission or similar allowances payable to the employees. The
Court, thus, concluded that the decision of the learned Tribunal for
including any of the aforesaid allowances for calculating the
contribution to the Fund was based on an incorrect interpretation of
the provisions of law. The learned Single Judge had also noted that a
similar question had arisen in the case of the respondent, G4S Security
Services (India) Ltd., before the Punjab and Haryana High Court, in
Asstt. Provident Fund Commissioner, Gurgaon v. M/s. G4S Security
Signature Not Verified
LPA 712/2012 & LPA 713/2012 Page 2 of 6
Digitally Signed
By:HARMINDER KAUR
Signing Date:18.10.2023
15:49:34
Services (India) Ltd. and Another : 2011 LLR 316 , whereby the Court
held that the respondent [G4S Security Services (India) Ltd.] had
rightly excluded certain allowances such as house rent allowance,
washing allowance and conveyance allowance while determining their
liability for contribution to the provident fund. The appellant’s appeal
(LPA No. 1139/2011) against the said decision was dismissed by the
Division Bench of the Punjab and Haryana High Court by order dated
20.07.2011.
4. It is material to note that the present appeals were not filed
within the time as stipulated, but the same were filed after a delay of
357 days. The appellant has filed accompanying applications seeking
condonation of delay. The reason set out in the said applications are
similar and read as under:
“2. That the applicant/appellant did not file the instant appeal
within time because of the guidance given by the counsel as the
Special Leave Petition between the same parties involving
similar issues is pending before Hon’ble Supreme Court. The
said SLP bearing No. 32744/11 titled as “Assistant Provident
Fund Commissioner, Gurgaon Versus M/s. G-4s Security
Services (India) Ltd. & Another” against the Division Bench
judgment dated 20.07.2011 in LPA No. 1139/2011 passed by
Hon’ble Punjab and Haryana High Court is pending. That
notice has been issued in the said SLP and next date of hearing
fixed for 21.09.2012. That petitioner was under false
impression due to the guidance given by the counsel that the
decision in the above stated pending SLP would be applicable
in the present case also and hence instant appeal was not filed
within time.”
5. It is apparent from the above that it is the appellants case that
Signature Not Verified
LPA 712/2012 & LPA 713/2012 Page 3 of 6
Digitally Signed
By:HARMINDER KAUR
Signing Date:18.10.2023
15:49:34
the issue involved in the present appeals is identical to the issue
involved in the Special Leave Petition bearing No.32744/2011
captioned Assistant Provident Fund Commissioner Gurgaon v. M/s.
G4S Security Services (India) Ltd. & Another which was filed
against the judgment dated 20.07.2011, passed by the Division Bench
of Punjab and Haryana High Court in LPA No. 1139/2011.
6. These appeals were listed for the first time on 19.10.2012, and
on a number of dates thereafter. However, these were not pressed by
the appellant on the ground that the issue raised in the present appeals
was pending before the Hon’ble Supreme Court in SLP
No.32744/2011. Thus, this Court had deferred the present matter
awaiting the decision of the Hon’ble Supreme Court in the said appeal.
7. The Hon’ble Supreme Court has since dismissed the Civil
Appeal, being Civil Appeal No. 9284/2013, arising out of SLP No.
32744/2011 by an order dated 17.08.2023 and has upheld the decision
of the Punjab and Haryana High Court in Asstt. Provident Fund
Commissioner Gurgaon v. M/s. G4S Security Services (India) Ltd. &
Another ( supra ) (which as stated above was affirmed by the Division
Bench of Punjab and Haryana High Court in LPA No.1139/2011).
8. The Supreme Court considered the term ‘basic wages’ as
defined under Section 2(b) of the EPF Act and held as under:
“4. In our opinion, once the EPF Act contains a
specific provision defining the words ‘basic wage’
(under Section 2b), then there was no occasion for the
appellant to expect the Court to have travelled to the
Minimum Wages Act, 1948, to give it a different
Signature Not Verified
LPA 712/2012 & LPA 713/2012 Page 4 of 6
Digitally Signed
By:HARMINDER KAUR
Signing Date:18.10.2023
15:49:34
connotation or an expansive one, as sought to be urged.
Clearly, that was not the intention of the legislature.”
9. The learned counsel appearing for the appellant now states that
there is another question, which requires consideration in these
appeals. This question relates to the applicability of Section 12 of the
EPF Act, which has not been considered by the Hon’ble Supreme
Court. He earnestly contended that the decision of the Hon’ble
Supreme Court in Civil Appeal No.9284/2013 is per incuriam as it
overlooks the provisions of Section 12 of the EPF Act.
10. Concededly, the question regarding applicability of Section 12
was not considered by the Employees Provident Fund Appellate
Tribunal in the orders from which these appeals arise [Case No.
ATA/16/(6)/99 captioned M/s. Whirlpool of India Limited, Faridabad
v. Regional Provident Fund Commissioner Faridabad & Anr. and
Case No. ATA/16/(11)/99 captioned M/s. Group 4 Securities
Guarding Ltd, Faridabad v. Regional Provident Fund Commissioner,
Faridabad ] and there is no mention of the said provision in the order
dated 01.05.2000 passed by the Tribunal. This issue was also not the
subject matter of controversy before the Learned Single Judge. This
question also does not find any mention in the order dated 31.05.1999
passed by the Assessing Authority under Section 7A of the EPF Act.
Thus, we are unable to accept that the said question would arise in
these appeals.
11. Further, we are of the view that the appellant cannot be
permitted to contend that the present appeals involves issues other
Signature Not Verified
LPA 712/2012 & LPA 713/2012 Page 5 of 6
Digitally Signed
By:HARMINDER KAUR
Signing Date:18.10.2023
15:49:34
than those involved before the Supreme Court in in Civil Appeal
No.9284/2013. As noted above, the only reason as stated in the
application seeking condonation of delay is that the matter involving
the same issue, is pending before the Hon’ble Supreme Court and
therefore, the appellant had not filed the present appeals. That issue
has since been decided.
12. We are unable to accept that the order passed by the Supreme
Court in Civil Appeal No.9284/2013 is per incuriam . The said order
is binding on this Court and covers the issue involved in this appeals.
13. In view of the above, the present appeals are dismissed.
VIBHU BAKHRU, J
AMIT MAHAJAN, J
OCTOBER 10, 2023
“SK”
Signature Not Verified
LPA 712/2012 & LPA 713/2012 Page 6 of 6
Digitally Signed
By:HARMINDER KAUR
Signing Date:18.10.2023
15:49:34