Umakanthan53
Labour Law & Hr Consultant
Apex Management
Labour Laws Consultants
+1 Other

Kindly clarify the following doubt for my Professional guidance please.

Our Company is in Telangana State and we have two set of Employees viz.1.Conpany Employees and 2. Contract Workmen engaged through Licenced Contractors.

While the Company Employees are being paid the Salary on Cost to Company (C to C) pattern and PF inrespect of Company Employees is being paid on the Basic (as there was no DA component exists for Company Employees) which is equivalent to 50% of Gross Salary and treating the remaining 50% of Gross salalry as Allowances bifurcating as HRA, Conveyance, Medical, LTA, Education Allowance, Washing Allowance and Other Allowance, the Contract Workmen are being paid as per the Minimum Wages declared by Telanagna State Government for Unskilled, Semi Skilled and Skilled Category based on the GO applicable for Scheduled Employements, from time to time, copy of the latest GO issued by Telangana Government is in the attachment for your kind perusal and reference please.

Sir, in Telangana State Minimum Wages comprises of Basic Wage(fixed one) and VDA and accordingly we are paying PF inrespect of Contract Workmen on 50% of the total Minimum Wage on par with Company Employees and accordingly while preparing monthly wage bill the Contractor is showing 50% monthly earned total Minimum wage as PF Wage and the remaining 50% of earned Wage as other allowances, without any bifurcation/breakup.

For example: If the Minimum Wage inrespect of Contract Helpers (at Sl.No.10 in the attachment) is Rs. 8244.10 per month ie., (Basic Wage = Rs. 3496/- and VDA = Rs. 4748.10) we are paying 12% PF on Rs. 4122.05ps.being 50% of Total Minimum Wage as against actual Basic of Rs. 3496/-. It means we are paying PF on more than Rs.626/- of Basic Wage ( ie., 50% of Total Minimum Wage (Minus) Basic Wage).

Would like to have your expert opinion for the following taking into consideration of Sec.2(b) and Section 6 of EPF Act 1952:

Pl.confirm whether PF inrespect of our Contract Workmen is to be deducted based on Basic Wage or based on 50 % of Total Minimum Wage(as being followed right now in our Company) or based on 100% of Total Minimum Wage which include Basic Wage + VDA.

In our Company while there is no DA component inrespect of Company Employees in the bifurcation of total C to C, there is a VDA component in respect of the Total Minimum Wages being paid to Contract Workmen.

While as per Sec. 2(b) of the EPF Act 1952 Basic Wage does not include any Dearness allowance but as per Section 6 of EPF Act "The Contribution which shall be paid by the Employer to the Fund shall be (10%), of the Basic Wages, (Dearness allowance and retaining allowance (if any) for the time being payable to each of the employees.... ... ... ..... There is little bit ambiguity whether PF is to be paid only on Basic wage(on par with company regular employees or on 50% of the total Minimum Wage as at present for the Contract Workmen or on 100% of Basic wage + VDA ie; total Minimum wage.

Also pl.quote relevant settled citations, if any on this for my professional guidance pl.

Thanks,

LV Sastry

Mobile: 09866077163.

Mail ID: .

Date : 24.01.2017.
24th January 2017 From India, Hyderabad
Dear Mr LV Sastry,

Please note that their is no discrimination in EPF for regular and contractual employees as the definitions of "wages" and "employees" etc. are at par without any exception.

Treating 50% of notified minimum wages for paying contribution of EPF is unjustifiable and illegal. You are liable to contribute on earned Basic and DA subject to maximum Rs.15000/- per month which is a ceiling at present.

Section 2 (b) “basic wages” means all emoluments which are earned by an employee while on duty or 4[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 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;

As far as rate of contribution at 10% is concerned, it is only for establishments employing less than 20 employees and for some schedules of employment otherwise it is 12%.

P K Sharma
24th January 2017 From India, Delhi
Sec.2(b) of the EPF Act,1952 defines " basic wages" in which other components of wage structure like dearness allowance are excluded whereas sec.6 of the Act specifically deals with contribution, inter alia, matters connected therewith the scheme wherein dearness allowance has been mentioned as one of the constituents of the percentage of the contribution. The confusion mentioned in the post would arise only because of the unnecessary conjunctive reading of both the provisions. One speaks about basic wages while the other about the percentage and the components of the contribution to be made. So, no comparison of both the sections.

Minimum Wage fixed under the Minimum Wages Act,1948 would mean the sum total of the wages comprising of all the components of the wage structure except the excluded ones from the term " wages " as defined in sec.2(h) of the MW Act,1948. When D.A is there, automatically it should be entirely taken into a/c for computing the contribution to EPF in terms of the percentage so fixed under the EPF Act.

Just because 50% of the gross salary of the regular employees are taken into a/c to determine the EPF contribution in view of the conspicuous absence of D.A component and the sheer coincidence of the basic wages being exactly 50% of the gross, it can not be blindly followed in the case of contract labour whose minimum wages comprise of just two components viz basic and V.D.A.
24th January 2017 From India, Salem
Many establishments are bifurcating the wages into various allowances ignoring the dictum of the Gujarat, Madhya Pradesh and Madras High Courts holding that all allowances other than house rent allowance will form part of ‘basic wages’ to attract provident fund contributions. Some of such allowances include as under:

Special Allowance, •City Compensation Allowance, •Tiffin Allowance, •Night Shift Allowance, •Hardship Allowance, •Supplementary Allowance, •Punctuality Allowance, •Attendance Allowance, •Children Education Allowance, •Travelling Allowance, •Uniform Allowance, •Washing Allowance, •Tea Allowance •Canteen Allowance, •Leave Travel Allowance, •Milk Allowance, •Make Up Allowance, •Newspaper Allowance, •Regularity Allowance, •Suspension Allowance, •Medical Allowance, •Production Allowance, •Heat Gas and Dust Allowance, •Meal/Food Allowance, •Overtime Allowance, •Wellness Allowance, •Performance Allowance, •Field Working Allowance, •Location Allowance, •Compensatory Allowance, •Cash Handling Allowance, •Supervisory Allowance, •Steno Typist Allowance, •Computer Allowance, •Conveyance Allowance, •Area Allowance, •Driver Allowance, •Cycle Allowance, •Entertainment Allowance, •Additional allowance, •Club Allowance, etc. etc.

[The above list is only illustrative and not exhaustive. Out of above allowances, some are being paid universally necessarily, and ordinarily paid to all the employees].

Savings

The industry previously lacked consistency in the inclusion of ‘other’ allowances for calculating PF. Through the years the PF Authorities too did not insist hard upon the inclusion of difference types of wage element which did not fall under the Basic or DA category. With the wages sky rocketing the employer PF contribution of 13.45% (12% employer and 1.45% Administrative charges & EDLI contribution) started to prove to be costly. Needless to say the employers shifted the weight of the pay packets from the Basic and DA to the other wages elements.

Now the PF Authorities have woken up to this truth after being prompted by two independent rulings, by the Madras High Court and the Madhya Pradesh High Court, holding allowances (except HRA) paid by the employer to the employee to be part of basic wages.

This decision raises a question on whether it is the PF Authority who will decide on what and how a salaried employee has to save for his future. While this may be a welcome change for some but most would feel the pinch as their spending capacities would be crippled. This could also affect the salaried class who has invested in long term money saving schemes that involve premiums that cannot be stopped now as a result of their reduced take home pay.

The employers would be again be burdened with higher employer PF contributions and contributing to higher employee cost. Even in the present scenario the employer sees 25.45% of the wages being directed into the employees PF account and therefore this inclusion of ‘other’ wage elements would send the employers head spiraling!!

Present Legal Position

Special Leave Petitions including Appeal (Civil) filed before the Hon’ble Supreme Court by following Establishments on the issue of whether Basic Wages include all allowances (excluding HRA) and also whether the employer has the liberty to split the minimum wages declared by the Government into various allowances is pending before the Apex Court:-

Sl.No. Name of the Establishment SLP No. Issue relating to

1. Surya Roshni & Others – Vs - EPFO Appeal (Civil) No.8781-8782/2012 Whether various allowances form part of basic wages and attract PF contribution

2, Montage Enterprises Pvt Ltd. – Vs – EPFo SLP(C)11438/2012 Appeal against the Order /Judgement of the Gwalior Bench of Madhya Pradesh High Court. The Division Bench held that since the conveyance and special allowance is paid universally, necessarily, and ordinarily paid to all employees will form part of basic wages and attract PF Contribution

3. U Flex Limited – Vs – EPFO SLP(C)11440-11441/2012 Whether various allowances form part of basic wages and attract PF contribution

4. EPFO – Vs – G4 Security Services (India) Ltd. SLP(C)20085/2011 Against the Judgement of Punjab & Haryana High Court which went in favour of G4 Security – Whether the employer can split the minimum wages declared by the Government into various allowances.

As the issues involved is identical in all the above SLP’s the Apex Court has decided to hear all the SLPs together.

PRESENT STATUS

In spite of the above Appeals pending before the Apex Court, the EPFO has issued a Circular on 23rd May, 2011 instructing to its field officers to ensure that PF contributions are remitted at least on the minimum wages based on the Apex Court Order dated 23rd July, 20004 wherein the Apex Court while tentatively upholding the order of the Division Bench of Karnataka High Court in the Case of Group 4 Securities Guarding Ltd., - Vs – RPFC (which was challenged by Group 4) granted liberty to the authorities to decide the matter in accordance with law on its merits.

Subsequently based on the decision of the Punjab & Haryana High Court in the case of G4 Security Services (India) Ltd., the EPFO withdrew the above circular vide Circular dated 2nd December, 2011 keeping the matter in abeyance till the outcome of the decision of the Apex Court.

Even though some of the parties approached the Apex Court in June 2016 for early hearing, the Apex Court negated the request. The case is still pending with the Apex Court for disposal.

The EPFO had subsequently issued a Circular dated 30th November, 2012 pertaining to Guidelines for Quasi-judicial proceedings under section 7A of the EPF&MP Act, 1952 issued by the EPFO on the inclusion of certain allowances etc. for calculating Provident Fund contribution.

The above Circular has created a lot of confusion and subsequently the Union Labour and Employment Minister Mallikarjun Kharge on 13th December, 2012 said that the Circular November 30th, 2012 pertaining to Guidelines for Quasi-judicial proceedings under section 7A of the EPF&MP Act, 1952 issued by the EPFO on the inclusion of certain allowances etc. for calculating Provident Fund contribution is to be kept in abeyance and the Circular of 30th November, 2012 stands withdrawn.

So the status quo will continue.

Under the scenario, either the authority has to wait for the final verdict of the Apex Court or they should go for an amendment of the definition of basic wages.

Be it known that the provident fund contributions can be demanded up to any past period since there is no limitation period fixed for it as of now and the employers are held liable to pay not only employees’ share of contributions, interest thereon but penal damages also.



P.S. Lakkshmanan

S.G.Management Services

Kolkata

(M) 9831877248 (P) (033) 24292298
26th January 2017 From India, Kolkata
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