The Apex court has announced common verdict in five different appeals having the common question. Which are a) RPFC, West Bengal Vs. Vivekananda Vidyamandir b) Surya Roshni Ltd. Vs. EPFO, c) U- Flex Ltd. Vs. EPFO d) Montage Enterprise Pvt. Ltd. Vs. EPFO and e) The management of Saint Gobain Glass Ltd. Vs. RPFC
The question examined was:
“Whether 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.”
1st March 2019 From India, Mumbai

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The analysis is precise and clear.Thanks Mr.Shailesh Parikh for sharing it.The other implications can be:
1) The take home pay of the employees may get less since they have to pay contribution on other allowances that are uniformly paid to all but beneficial in the long run at the time of retirement since it provides more financial cushion as the additional contribution on the additional allowances also attracts interest .
2) It may not cast much extra load on the employer as he can limit his contribution to Rs.15000/- which is the wage cap, if he so chooses.
3) The International workers might probably have to more by way of contribution because of inclusion of other allowances and there is no wage limit in their case.
These are only observations and others are welcome to throw futher light on it.
B.Saikumar
HR & Labour relations Adviser
1st March 2019 From India, Mumbai
Hi All
Thanks for sharing your views. I have one query on same. As this is a judgement and not a notification or circular to have a with effect date. That means this is from the day since the act was applicable and hence forward from the date of establishment registration in EPF. My query is
1. Will the EPFO dept go back and say the establishment should pay the difference of EPF from that date till today?
2. If yes in what section of the Act?
3. What shall be the remedy to this?
Thanks in advance.
1st March 2019
Hi Aniket,
1. Will the EPFO dept go back and say the establishment should pay the difference of EPF from that date till today?
This judgment is in an appeal filed by revel parties-RPFC/employers. Which implies there was a dispute, short contribution by employers and RPFC pointed out violation and demand for diff. together with interest which contention has been upheld by this judgment. Therefore I think there is possibility of additional burden on employers.
2. If yes in what section of the Act?
The applicable section as noted in the judgment has been clarified and coverage amplified.
3. What shall be the remedy to this?
I don't think there is possibility to avoid. However, review petitions may be possible, but there is remote chances of reversing the judgment itself. May be a plea to make the amplified definition be implemented from the date of judgment could receive due consideration by the apex court.
2nd March 2019 From India, Bangalore
Dear experts
I am puzzled with the EPF directive making Other Allowance part of EPFO contribution.
This will greatly reduce the take home.
However the new law is silent on the fact for PF contributions of employees beyond the limit of Basic Wages above Rs 15000 per month
My query is:
1)If the company with the willful agreement of the employee agrees to cap the basic salary of an employee at Rs 15000 and the monthly PF contribution of Rs 1800 then will that be a contravention of the law.
2)Also what is the procedure for informing EPFO of restructuring the salary contribution to EPF i.e a lot of employees want their contribution to be capped to the statutory limit.
3)Also I would seek the opinion of the experts on the logic of the government to initiate such a move as the tax contribution u/s 80C has not been increased.Thus what the employee will get a reduced in hand pay as he will contribute a higher amount into EPF and at the same time pay tax on the same thus reducing his take home pay.
4) I also need to understand that is the EPF contribution is only restricted to the word "allowance" and not reimbursement or amount paid to employees against bills.
I am very confused on this fact as there are queries coming on the same.
Please help.
Regards
Anuradha Grewal
2nd March 2019 From India, Mumbai
Friends,
PFA analysis of PWC on the Supreme Court ruling.
Thanks
2nd March 2019 From India, Malappuram

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Hi Anuradha,
Pl.consider my views on your queries-
"This will greatly reduce the take home.
However the new law is silent on the fact for PF contributions of employees beyond the limit of Basic Wages above Rs 15000 per month
My query is:
1)If the company with the willful agreement of the employee agrees to cap the basic salary of an employee at Rs 15000 and the monthly PF contribution of Rs 1800 then will that be a contravention of the law.
= As per existing provisions of law an employer will have option to cap the contribution upto the statutory limit of Rs.15,000/- The impact of SC judgment is focused only on inclusion of Spl.&other allw.for the purposes of computation of EPF matching contribution of employers. It cannot be construed enhancing the statutory limit of Rs.15000/- which was not touched. However law prohibits tinkering the salary structure with a motive to reduce/avoid the employers’ contribution.
2)Also what is the procedure for informing EPFO of restructuring the salary contribution to EPF i.e a lot of employees want their contribution to be capped to the statutory limit.
= There is no provision to keep posted with information of changes in emoluments of employees, as if seeking their approval. Changes in emoluments are governed by the bilateral terms & conditions. And there is no provisions in law stipulating the quantum of basic or allw. So long as statutory minimum wages are adhered to there is no worry. However capping employers' contribution upto statutory limit is possible.
3)Also I would seek the opinion of the experts on the logic of the government to initiate such a move as the tax contribution u/s 80C has not been increased.Thus what the employee will get a reduced in hand pay as he will contribute a higher amount into EPF and at the same time pay tax on the same thus reducing his take home pay.
= It’s misunderstood as if govt. has introduced a new provision now, it’s not so, RPFC raised violations w.r.t. non-inclusion of these allw. for employers’ contribution which interpretation was challenged in this case. SC upheld the contention of the RPFC and amplified the coverage of allowance for this purposes. We shouldn’t see the impact as if every employer is going to be burdened in a big way. In fact many states’ minimum wages for different categories have already reached around the statutory limit. So the impact, in my opinion, will impact only marginally wherever the wages/salary levels are below Rs.15000/-
Of course relief u/s.80C of IT act has not been increased for the last few years. However Std.Deduction of Rs.40,000 & Rs.50,000 (from 2019-20) without linking to 80 C has been (re-)introduced which some what a relief to those in the border line.
4) I also need to understand that is the EPF contribution is only restricted to the word "allowance" and not reimbursement or amount paid to employees against bills.
= The contention of the impugned case addresses such of the allowances discussed in the judgment. Let us not stretch it beyond what have been listed therein.
Reimbursements like LTA/medical expenses against bills as per their HR policy which are infrequent(not on regular basis like monthly allw.) are not to be considered as allowances for EPF.(pl.mind the limits stipulated for the purposes of IT)
I am very confused on this fact as there are queries coming on the same.
= Queries naturally should arise everywhere. I don’t see anything which cannot be questioned and free from confusion. In saying so if we don’t interpret differently to that much confusion can be avoided.
2nd March 2019 From India, Bangalore
Dear Mr. Kumar
Greetings
Thank you for your elaborate answer.
As mentioned earlier I sought your expert opinion on fixing the EPF contribution at Basic Wage of Rs. 15000 pm.
My only question is that if we change our EPF contribution after the SC order will the regional EPFO under whose jurisdiction my organisation falls will object to such modification.
If so then how do we resolve this problem.
Also if retrospective EPF contribution is to be paid what is the period to be considered.
For eg:
If employee A had PF being deducted on salary and not on Sp Allw but after the SC order we are obliged to pay the PF retrospectively. Now under the said judgement retrospective corresponds to what period as the employee may have been working with us for the last 10 years.
Please advice as there are more questions than answers available.
Thanking You
Warm Regards
Anuradha
9th March 2019 From India, Mumbai
Hello Anuradha,
Pl.go thru' the extract from the SC judgment before going into your query -
xxxxxx
“ 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), houserent 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.”
xxxxx
“ 14. Applying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate 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 were 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 workman 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 possible 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 camouflaged 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 Provident Fund Commissioner deserves to be allowed. “
Now your query -
? As mentioned earlier I sought your expert opinion on fixing the EPF contribution at Basic Wage of Rs. 15000 pm.
My only question is that if we change our EPF contribution after the SC order will the regional EPFO under whose jurisdiction my organisation falls will object to such modification.
If so then how do we resolve this problem.
= I'm not clear, do you mean to say you have a consolidated salary/wage of Rs.15000 p.m. which now you try to bifurcate into various allowances (which are discussed in the SC judgment) Am I correct? If so, bifurcation is OK so long as you don't do it with a view to escape from the contribution by coining some new allowances which are not finding place in the SC judgment. Such attempts only will create problem for you. Neither RPFC not going to approve or disapprove your proposal as they have no such a role to play.
? Also if retrospective EPF contribution is to be paid what is the period to be considered.
For eg:
If employee A had PF being deducted on salary and not on Sp Allw but after the SC order we are obliged to pay the PF retrospectively. Now under the said judgement retrospective corresponds to what period as the employee may have been working with us for the last 10 years.
= I cannot conclusively say Yes or No on the necessity on the need to apply the SC judgment in right spirit from retrospective date. One may tend take a narrow view saying the judgment is passed against appeals in specific cases cited therein and therefore others may relax. Then here the catch is, this being the judgment of the apex court,SC, it applies to every where all over the country. I have no doubt all the RPFCs all over India now on will quote this judgment and raise demands and therefore the demand going to be retrospective effect which nobody could rule out. And therefore, I have no answer if you ask me, from which date? Anybody's guess. I'm sorry I don't want to mislead on this aspect. But pl.be prepared for anything.
12th March 2019 From India, Bangalore
Dear Mr Kumar
Many thanks for your elaborate response. I have found a new judgement that may help what I am trying to endeavor.
Attached is the SC judgement regarding no restriction on reduction of EPF contribution by the employer even though previously the contribution was above the statutory limit.
My question :
1)Now is this only that in light of this judgement of 2011 can I reduce the EPF contribution of both employer and employee to Rs 15000 eventhough previously my contribution was above the statutory limit.
2)Kindly let me know if you are aware of any judgement that is contrary the judgement attached.
Awaiting your elaborate response which acts like a guiding light to many.
Regards
Anuradha Grewal
23rd March 2019 From India, Mumbai

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Hi Anuradha,
As you know, EPF contribution is directly relevant to 'salary/wages' for those drawing upto Rs.15,000 only and I think there is no impediment administering contribution as 'voluntary' in respect of those drawing above Rs.15,000. By virtue of this decision, if the basic wages for PF purpose exceeds INR 15,000 p.m., are the employers required to contribute on this higher amount? This decision has not dealt with this aspect. Interestingly, in another SC decision in the case of Marathwada Gramin Bank, it was held that employers cannot be compelled to contribute beyond their statutory liability. PF authorities did not file the review petition in that case and issued instructions to their field officers in May 2014 that they should not force employers to contribute over and above the statutory wage ceiling (i.e. Rs.15,000 p.m.). In view of this, employers still have the option to contribute PF on the statutory wage ceiling of Rs.15,000 per month (statutory obligation) unless they voluntarily agree to contribute PF on the wages higher than Rs.15,000 per month. If PF authorities wish employers to contribute on the higher basic wages, they will need to withdraw their previous instructions, but these can then be applied prospectively only. Nevertheless, in view of Marathwada Gramin Bank ruling, the issue may still get challenged in a court of law. For foreign nationals qualifying to be International Workers, the situation is not the same, as the wage ceiling of Rs.15,000 p.m., is not applicable to them, and they are required to contribute PF on the total wage amount even beyond Rs.15k as per law stipulated.
23rd March 2019 From India, Bangalore

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Dear All,
Additional Central PF Commissioner HQ Legal has issued circular while defending similar cases and taking necessary action keeping aforementioned judgement of Apex Court.
Regards,
24th March 2019 From India, Mumbai

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File Type: pdf PF CIR DATED 14.03.2019.pdf (221.1 KB, 383 views)

There is no judgement attached.
Is this judgement regarding the SC judgement of decreasing PF contribution to the statutory limit.
Plz share
27th March 2019 From India, Mumbai
Hello Anuradha,
The attached Circular is regard to :-
The appeals raise a common question of law, if the 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
Regards
27th March 2019 From India, Mumbai
Dear All,
Please find the attached interpretation and impact on PF Contribution post Supreme Court’s verdict by Bench of Justices Arun Mishra and Naveen Sinha.
Essentially, it means that the PF contribution will be on the total amount including all the allowances paid to an employee and not just on the basic salary.
The Supreme Court ruled that 'special allowance' must be included in basic pay for calculation of provident fund (PF) deduction from employees and the company.
A bench of Justices Arun Mishra and Naveen Sinha dismissed appeals filed by many companies questioning the Provident Fund Commissioner’s decision to club basic pay with special allowances / other allowances for the purpose of deduction of PF and matching contribution by employers.
Crux and key pointers here are as under -
1. PF ceiling of 15,000/-pm is same ,it has not been revised.
2. If minimum PF contribution as per ceiling is paid i.e 1800/- PM from Both Employee And Employer then there is no need to change.
3. IF contribution is less than 1800 and if Gross is more or up to 15,000/- Rs pm , where Basic is less than 15,000 and remaining amount is bifurcated among different heads then excluding HRA And Statutory Bonus, all other heads to be considered with Basic for framing PF wages up to 15,000/- or on total of all heads if total of all heads is less than 15,000/- then on that entire total amount as arrived to considered as wage for PF to be calculated on.
4. There is no new provision but it is interpretation to the existing section/ Term. Hence date of implication is not expected it is ongoing rule.
5. PF authority may have recourse to the verdict of SC while conducting the inspections and computation of liability up to wage ceiling as defined under the law
Regards,
Compliance First
1st April 2019 From India, Pune

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Dear Shailesh Parikh / Anuradha / Sai Consultant / Kumar / PCA
Without Prejudice from My Perspective Apex court has Unfortunately lost a golden opportunity ismissed to set right the confusion caused by various High Court judgments and orders of the provident fund commissioners by the Hon’ble Supreme Court.
The Supreme Court did not decide any legal issue. The position of law remains as it were before the judgement. All that the learned judges have done is, to reproduce the definition of “basic wages” and Section 6 of the EPF Act and some relevant paragraphs from three earlier judgements of the court.
The argument of the department advanced through Additional Solicitor General was limited to the question as to whether special allowance falls within the definition of basic wage though the appeals by the managements were in respect of/travel allowance/canteen allowance/management allowance/conveyance allowance, education allowance/food concession and medical allowance/night shift incentive and city compensatory allowance being wrongly treated as `basic wages’ on which contribution was demanded and the demand being upheld by the high courts.
The submissions of the counsels who appeared for the management in connected petitions was that the basic wages defined under Section 2(b) contains exceptions and will not include what would ordinarily not be earned in accordance with the contract of terms of appointment. Even with regard to payments earned by the employees in terms of the contract, the basis of inclusion and exclusion is, that whatever is payable in all concerns and is earned by all permanent employees is included for the purpose of contribution.
But, whatever is not payable by all concerns or may not be earned by all employees of a concern are excluded for the purpose of contribution, the example of house rent allowance was taken to show that it is not paid in many concerns and sometimes in some concerns to some employees but not to others, and would therefore be excluded from basic wage,the same is the case with overtime allowance.
The learned judges referred extensively to paragraph Nos.7 and 8 in Bridge and Roof case and reproduced the entire paragraphs 7 and 8 of the said judgement. Thereafter, para-11 of the judgment in Muir Mills Company Limited, Kanpur Vs. Workmen AIR 1960 SC 985 has been reproduced.
The judgment of the Hon’ble Supreme Court in Manipal Academy of Higher Education Vs. Provident Fund Commissioner (2008) 5 SCC 428 was referred to and para-10 of the judgment is reproduced.
At para-12 of the judgment, surprisingly, the judgment says that the term “basic wage” has not been defined under the Act.
This is unfortunate because the definition of `basic wage’ under Section 2(b) has been extracted at para-8 of the judgment. Para-9 from the judgment of the Court in Kichha Sugar Company Limited Vs. Tarai Chini Mill Majdoor Union (2014) 4 SCC 37 has been reproduced. The court in the said case had gone into the dictionary meaning of ‘basic wage’. In fact, all this was not necessary as basic wage is defined under the Act right from its inception.
The judgment refers to The Daily Partap case only to say that the Act is a piece of beneficial social welfare legislation.
The Court in para-14 which is the only paragraph where the learned Judges could be said to have analysed the case, refers only to the fact that employer-petitioners before it were not able to show that the allowances paid were not paid across the board to all the employees in a particular category.
According to the Court, in order to contend that the payment goes beyond the basic wages, it has to be shown that the workmen became eligible for extra amount beyond normal work. No law has been laid down in the judgment. The learned judges only say that the facts have been examined by the appellate authority and a factual conclusion is arrived at. Beyond this, the judgment does not give any insight into the scope of definition of `basic wage’. This leaves us where we started, and that is, confusion still prevails.
In fact, issue before the court was, as to whether conveyance allowance, education allowance, food concession, medical allowance, special holidays, night shift incentive and city compensatory allowance constitute part of basic wages. No discussions have taken place on these issues and nothing has been said as to whether any of these components of wage should be treated as `basic wage’ or otherwise.
Effectively, what the earlier judgments have said is, if a component of wage is paid to all the employees across the board, it would fall within the definition of basic wage, except those that are expressly excluded like for example, house rent allowance. The Hon’ble Supreme Court in none of the earlier judgments nor in the present judgment considered the scope of the words “or any other similar allowance payable to the employee in respect of his employment or of work done in such employment” under Section 2(b)(ii).
While the dearness allowance which is excluded in Section 2(b)(ii) has been included in Section 6, similar inclusion is not found in respect of other allowances. This should be taken as having been done deliberately by the Parliament to see that other allowances such as conveyance allowance, uniform allowance, washing allowance, overtime allowance, bonus & commission do not fall within the definition of basic wages.
The Hon’ble Supreme Court is neither prepared to say this nor consider arguments on these lines. May be, the matter will have to be taken again to the Hon’ble Apex Court for a clear verdict on the scope of the words “or any other similar allowance payable to the employee in respect of his employment or of work done in such employment” under Section 2(b)(ii) of the EPF Act, 1952.
Last but not the least SC Judgement in Airfreight Ltd. vs State Of Karnataka & Ors. decided on 4 August, 1999,has not brought to the notice of Judges.
Regards,
1st April 2019 From India, Andheri
Dear All,
I want to through some light on the subject as i have replied the Section 7A notice of the one of the establishment. The following are the points which still holds good:-
1. That the Hon’ble Supreme Court of India in Civil Appeal No. 6221 in the case titled The Regional Provident Fund Commissioner (II) (WB) Vs Vivekananda Vidyamandir And Others has not struck down the provisio (ii) of the section 2 b of the Employee’s Provident Fund and Miscellaneous Provision Act, 1952 and the said exceptions still holds good.
2. While excluding any allowance from the basic wages for the contributions under section 6, we have to be cautious for the following attributes/characteristics:
a) Allowances which are of universal nature and are being paid to all employees across the board should be included in the basic wages for contribution under section 6. e.g transportation allowance, special allowances, production bonus to all without any criteria.
b) Allowances which are variable in nature and are not paid across the board to all employees in the establishment. e.g HRA to some employees , Leave encashment to all but different individually, bonus to some employees on extra work, sales incentives to some employees who earned it.
c) Extra Allowances above should be such as being earned on availing the opportunity to work extra and hence is applicable to some one and not to others.
3. EPFO has started taking action under section 7A and has started recovering the amount. I have just faced one which is pending for reassessment.
4. EPFO can not reassess the escaped amount for contribution under section 6 by giving notice under section 7C not beyond more than five years. So limit is five years.
5. Upper ceiling still hold good of Rs 15000/- for the employer of all the establishments except with respect to the international worker.
6. If any body wants my personal services at the EPFO LEVEL for assessment, reply to notice under section 7A, review 7B, EPFO Appellate Tribunal, High Court or Supreme Court can contact me on the email.
Thanks

Adv Raj Singh Phogat
7428133893
14th April 2019 From India, Delhi
In Response to Mr. Anonymous, i would like to say the following:
1. Airfreight Ltd. vs State Of Karnataka & Ors. decided on 4 August, 1999 judgment is not related to the EPF as it is concerned with the minimum wages and that also regarding DA part inclusion in the Basic for the minimum wages.
2. It is incorrect to say that Hon'ble Supreme Court of India has not clarified the statute clearly. The Apex Court has properly interpreted the section 2b and section 6 of the EPF and Misc. provision Act 1952 based on the rules of interpretation. Actually the legislature should have done the percentage basis like ESIC on the total payment. But it was enacted in 1952. It needs amendment so that no scope remains for any corruption.
Thanks to all.
Adv Raj Singh Phogat
Labour Law consultant

7428133893
14th April 2019 From India, Delhi
I would like to understand the EPF contribution for basic salaries above 15,000 Rs. If employee is contributing EPF at actuals, will the new supreme court ruling decrease the NET Takehome salary ?
16th May 2019 From India, Jaipur
Dear friend from Jaipur,
The SC's judgment has not ordered anything on 'NET Takehome salary' or anything for those drawing above Rs.15,000/-. The order obligates employers to include other allowances including 'Special allowance' etc. if any, (excepting HRA) in respect of those drawing upto Rs.15000/- for the purpose of calculating EPF contribution. Takehome pay is something different which consequently undergo change as a result of this judgment as it is expected that due to inclusion of other allowances in basic salary (which could have been excluded till now) for EPF. Therefore recovery towards PF likely to increase thereby net takehome salary bound to decrease. But at the same time, thus, don't ignore, by an increase in recovery and the same remitted to your EPF a/c, your savings correspondingly boosted up. Just from your left side pocket to right side pocket.
16th May 2019 From India, Bangalore
#Anonymous
Dear Rajsingh,
With due respect to you and to your chair.
As stated by you " Airfreight Ltd. vs State Of Karnataka & Ors. decided on 4 August, 1999 judgment is not related to the EPF as it is concerned with the minimum wages and that also regarding DA part inclusion in the Basic for the minimum wages.
As PF is deducted based on the Minimum Wages inclusive of DA declared by State OR Central Govt. from time to time for Schedule Employment under the Act and Apex Court has ruled that there is No infringement if Declared Minimum Wages Gross Amount is split in various components.
Further recently in the matter of MADRAS HC Order Dt 17.04.2018 in WP No 22127 of 2014 in the case of M/s Te-chest Composition India (P) Ltd. –Vs - The Regional PF Commissioner (C&R) Apex court in the same judgement has upheld the Airfright Judgement.
The Hon’ble Supreme Court in none of the earlier judgments nor in the present judgment RPFC –II, West Bengal vs. Vivekanand Vidyamandir & others considered the scope of the words “or any other similar allowance payable to the employee in respect of his employment or of work done in such employment” under EPF Section 2(b)(ii).
It is not out of place to mention here that the review petition has been file by Surya Roshni Ltd. Vs. EPF and other) against the judgement let hope Apex court will throw some light on EPF Sec 2(b) (ii)
Regard,
16th May 2019 From India, Mumbai
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