Big Kids Kemp vs The Assistant Provident Fund Commissioner

Ram Mohan Reddy, J.—Petitioner-establishment covered under the Employees'' Provident Funds 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 u/s 7-A of the Act, preferred an appeal u/s 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. 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:

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?

The Assistant Provident Fund Commissioner, though noticed the principles laid down by the Apex Court in Bridge and Roof Co. (India) Ltd. Vs. Union of India (UOI), concluded that the EASP and outfit allowance constitute basic wage for the purposes of the Act.

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:

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.

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. 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.