Madras High Court
A.P.R.Agencies vs The Presiding Officer on 19 October, 2022
W.P.(MD).Nos.3952 to 3954 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.10.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).Nos.3952 to 3954 of 2012
and
M.P.(MD).Nos.1, 1,2, 1 and 2 of 2012
and
W.M.P.(MD).Nos.8883, 8999, 9094, 9117 and 9401 of 2022
W.P.(MD).No.3952 of 2012:
A.P.R.Agencies,
Interlining Manufacturing Facility,
386/2 & 387-B,
1B Mela Ambasamudram,
Tamil Nadu – 627 401,
Represented by its Partner ... Petitioner
Vs.
1.The Presiding Officer,
Employees Provident Fund Appellate Tribunal
(Ministry of Labour and Employment,
Government of India),
4th Floor, Core 2, SCOPE Minar,
Laxmi Nagar,
Delhi – 110 092.
2.The Assistant Provident Fund Commissioner,
Employee's Provident Fund Organization,
https://www.mhc.tn.gov.in/judis
1/8
W.P.(MD).Nos.3952 to 3954 of 2012
Sub Regional Office,
NGO 'B' Colony,
Perumalpuram,
Tirunelveli – 627 007. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records of the first respondent in
ATA No.459(13) 2011 and quash its common order dated 14.02.2012 confirming
the order of the second respondent dated 25.04.2011 in proceedings file
No.TN/TNY/55180/Enf.I/CIRCLE-13/2011.
W.P.(MD).No.3953 of 2012:
A.P.R.Agencies,
Interlining Manufacturing Facility,
386/2 & 387-B,
1B Mela Ambasamudram,
Tamil Nadu – 627 401,
Represented by its Partner ... Petitioner
Vs.
1.The Presiding Officer,
Employees Provident Fund Appellate Tribunal
(Ministry of Labour and Employment,
Government of India),
4th Floor, Core 2, SCOPE Minar,
Laxmi Nagar,
Delhi – 110 092.
2.The Assistant Provident Fund Commissioner,
Employee's Provident Fund Organization,
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.3952 to 3954 of 2012
Sub Regional Office,
NGO 'B' Colony,
Perumalpuram,
Tirunelveli – 627 007. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records of the first respondent in
ATA No.658(13) 2010 and quash its common order dated 14.02.2012 confirming
the order of the second respondent dated 25.04.2011 in proceedings file
No.TN/TNY/55180/Enf.I/CIRCLE-13/2011.
W.P.(MD).No.3954 of 2012:
A.P.R.Agencies,
Interlining Manufacturing Facility,
386/2 & 387-B,
1B Mela Ambasamudram,
Tamil Nadu – 627 401,
Represented by its Partner ... Petitioner
Vs.
1.The Presiding Officer,
Employees Provident Fund Appellate Tribunal
(Ministry of Labour and Employment,
Government of India),
4th Floor, Core 2, SCOPE Minar,
Laxmi Nagar,
Delhi – 110 092.
2.The Assistant Provident Fund Commissioner,
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.3952 to 3954 of 2012
Employee's Provident Fund Organization,
Sub Regional Office,
NGO 'B' Colony,
Perumalpuram,
Tirunelveli – 627 007. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records of the first respondent in
ATA No.800(13) 2011 and quash its common order dated 14.02.2012 confirming
the order of the second respondent dated 02.09.2011 in proceedings file
No.TN/TNY/55180/Enf.I/CIRCLE-13/13046/2011.
(In all Writ Petitions)
For Petitioner : Mr.Anand Gopalan,
For M/s.T.S.Gopalan and CO.
For R-1 : Tribunal
For R-2 : Mr.K.Murali Sankar
COMMON O R D E R
These Writ Petitions have been filed to quash the common order dated
14.02.2012 confirming the order of the second respondent.
2. The brief facts as stated in the affidavit are that the petitioners are
engaged in the manufacture of shirting collar cotton materials and employed
about 115 employees. All eligible employees are covered under the provisions of
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.3952 to 3954 of 2012
the EPF Act and the petitioner has been regularly paying contribution on basic
wages under Section 2(b) read with Section 6 and para 29 of the EPF scheme.
The contention of the petitioner is that the basic wages to the employees
consisting of components viz., basic, House Rent Allowance, Conveyance
Allowance and Washing Allowance. Normally, the basic wages constitute about
51% of gross wages and various other allowances constitutes balance 49% of the
wages. In terms of the provisions of the EPF Act, the petitioner is liable to pay
contribution only on basic wages and not on any other allowances. However, the
contention of the respondents is that all other allowances including the other
allowances also should be treated as basic allowances. Pending this Writ Petition,
the issue was considered by Hon'ble Supreme Court in the case of The Regional
Provident Fund Commissioner (II) West Bengal Vs Vivekananda Vidyamandir
and Others reported in 2019 SSC 1 Online SC 291. The Hon'ble Supreme Court
has clarified how to treat all other allowances and has held that the crucial test is
one of the “universality”. The employer if he is paying to all the employees then
the same ought to be included in basic wages not otherwise. However, this issue
was not considered as per the judgment of the Hon'ble Supreme Court.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.3952 to 3954 of 2012
3. Therefore, the matter ought to be remitted back to the authorities for
reconsideration. Hence, this Court is remitting back the case to the second
respondent and the respondents are directed to apply the test of universality as
held by the Hon'ble Supreme Court in the case of Vivekananda Vidyamandir and
thereafter determine the liability of the petitioner's establishment. The
respondents shall pass orders afresh within a period of eight (8) weeks from the
date of receipt of a copy of this order.
4. With the above direction, these Writ Petitions are disposed of. There
shall be no order as to costs. Consequently, connected miscellaneous petitions are
closed.
19.10.2022
Index : Yes / No
Internet : Yes
Nsr
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.3952 to 3954 of 2012
To
1.The Presiding Officer,
Employees Provident Fund Appellate Tribunal
(Ministry of Labour and Employment,
Government of India),
4th Floor, Core 2, SCOPE Minar,
Laxmi Nagar,
Delhi – 110 092.
2.The Assistant Provident Fund Commissioner,
Employee's Provident Fund Organization,
Sub Regional Office,
NGO 'B' Colony,
Perumalpuram,
Tirunelveli – 627 007.
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.3952 to 3954 of 2012
S.SRIMATHY, J
Nsr
Order made in
W.P.(MD).Nos.3952 to 3954 of 2012
19.10.2022
https://www.mhc.tn.gov.in/judis
