1. By way of this petition, the petitioner has challenged the order dated 3rd August 2011, passed by the Employees Provident Fund Appellate Tribunal, New Delhi, in A.T.A. No. 300(5)/2008, whereby the Tribunal has allowed the said appeal filed by the present respondent No.1.
2. The brief facts leading to filing of this appeal are that the present respondent No.1 is an establishment covered under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. The respondent-establishment failed to deposit the provident fund (PF) and allied dues in respect of its employees. Accordingly, an inquiry was initiated against the respondent-establishment and an amount of Rs.1,56,068/- assessed in respect of the said employees. Against which, the present respondent No.1 preferred an Appeal being Appeal No. ATA 300(5) of 2008 before the Employees Provident Fund Appellate Tribunal, New Delhi. The Tribunal after hearing learned advocates for both the parties and after recording the evidence has allowed the said appeal, against which the present petition is filed by the present petitioner.
3. Learned counsel for the petitioner contended that the Tribunal has committed an error in allowing the appeal filed by the present respondent No.1. He further contended that the the Tribunal has failed to appreciate the material on record in its true perspective. In support of his contention he relied upon the decision of this Court (Coram:- Akil Kureshi, J.) in the case of Gujarat Cypromet Ltd. Vs. Assistant PF Commissioner, dated 26.7.2004 and prayed to allow this petition.
4. I have heard learned counsel for the petitioner and perused the material on record. I have gone through the order of the Tribunal. The Tribunal has given cogent and convening reasons in allowing the appeal. The relevant portion of the said order is reproduced as under:-
"Basic Wages" means all emoluments which are earned by an employee while on duty or (on leave or holidays with wages in either case) in accordance with the terms of the contract of employment and which are paid or payable in case to him, but does not include-
(iv) the cash value of any food concession;
(v) 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, bonus commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment;
(vi) any presents made by the employer.
The dominant feature in the definition is that the amount was paid to one while on duty. Leave encasement salary does not paid to all the staff but it was paid to those employee who had worked without taking the leave. So leave salary cannot be treated as the basic wages. In the case of M/s Manipal Academy Higher Education versus PFC reported in 2008 Vol. 117, FLR SC at page 358, their lordship held that "basic wages was never intended to include the amount received from leave encasement". In this case the dues were calculated by treating leave salary as basic wages"
5. In view of the above, I am in complete agreement with the view taken by the Tribunal in allowing the appeal. Apart from that learned advocate for the petitioner is not in a position to show anything from the record to take a different view in the matter.
6. The decision relied upon by the learned advocate for the petitioner will not apply to the facts of the present case.
7. In the result, this petition is dismissed. No order as to costs.
(K.S.
JHAVERI,J.) pawan Top