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.”
From India, Mumbai
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312The 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.”
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 contributions on other allowances that are uniformly paid to all but are 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. 15,000/- which is the wage cap if he so chooses.
3) The international workers might probably have to pay more by way of contribution because of the inclusion of other allowances, and there is no wage limit in their case.
These are only observations, and others are welcome to throw further light on it.
B. Saikumar HR & Labour Relations Adviser
From India, Mumbai
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1) The take-home pay of the employees may get less since they have to pay contributions on other allowances that are uniformly paid to all but are 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. 15,000/- which is the wage cap if he so chooses.
3) The international workers might probably have to pay more by way of contribution because of the inclusion of other allowances, and there is no wage limit in their case.
These are only observations, and others are welcome to throw further light on it.
B. Saikumar HR & Labour Relations Adviser
From India, Mumbai
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Hi all,
Thanks for sharing your views. I have one query on the same. This is a judgment and not a notification or circular with an effective date. That means it is effective from the day the act was applicable and henceforth from the date of establishment registration in EPF. My query is:
1. Will the EPFO department go back and demand that the establishment should pay the difference of EPF from that date until today?
2. If yes, in what section of the Act?
3. What would be the remedy for this?
Thanks in advance.
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Thanks for sharing your views. I have one query on the same. This is a judgment and not a notification or circular with an effective date. That means it is effective from the day the act was applicable and henceforth from the date of establishment registration in EPF. My query is:
1. Will the EPFO department go back and demand that the establishment should pay the difference of EPF from that date until today?
2. If yes, in what section of the Act?
3. What would be the remedy for this?
Thanks in advance.
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(Fact Checked)-The EPFO can request the establishment to pay the difference in EPF contributions from the date of establishment registration. Section 14B of the EPF Act allows for this. Remedies include paying the arrears. (1 Acknowledge point)
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Hi Aniket,
1. Will the EPFO department go back and say the establishment should pay the difference of EPF from that date until 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 the difference together with interest, a contention that has been upheld by this judgment. Therefore, I think there is a possibility of an 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 a possibility to avoid. However, review petitions may be possible, but there are remote chances of reversing the judgment itself. Maybe a plea to make the amplified definition be implemented from the date of judgment could receive due consideration by the apex court.
From India, Bangalore
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1. Will the EPFO department go back and say the establishment should pay the difference of EPF from that date until 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 the difference together with interest, a contention that has been upheld by this judgment. Therefore, I think there is a possibility of an 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 a possibility to avoid. However, review petitions may be possible, but there are remote chances of reversing the judgment itself. Maybe a plea to make the amplified definition be implemented from the date of judgment could receive due consideration by the apex court.
From India, Bangalore
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(Fact Checked)-The user's reply contains accurate information regarding the implications of the judgment and the potential additional burden on employers. The mention of review petitions and the possibility of implementing the amplified definition from the date of judgment is also valid. (1 Acknowledge point)
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CiteHR.AI
(Fact Checked)-The user's reply contains correct information and insights regarding the implications of the Supreme Court judgment on EPF contributions. Well-analyzed response. (1 Acknowledge point)
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Dear experts,
I am puzzled by the EPF directive that includes Other Allowance as part of EPFO contributions. This change will significantly reduce the take-home pay. However, the new law does not address PF contributions for employees earning above Rs 15,000 per month in basic wages.
My queries are:
1) If a company, with the employee's consent, decides to cap the basic salary at Rs 15,000 and the monthly PF contribution at Rs 1,800, would this action violate the law?
2) What is the process for informing EPFO about restructuring salary contributions to EPF? Many employees wish to limit their contributions to the statutory maximum.
3) I also seek the experts' opinion on the government's rationale for this change, especially considering that the tax deduction under section 80C has not been increased. This means the employee's take-home pay will decrease as they contribute more to EPF and pay taxes on the same amount.
4) I need clarification on whether EPF contributions are limited to "allowances" and do not cover reimbursements or amounts paid to employees for expenses. There have been inquiries on this matter causing confusion.
Please assist me with these questions.
Regards,
Anuradha Grewal
From India, Mumbai
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I am puzzled by the EPF directive that includes Other Allowance as part of EPFO contributions. This change will significantly reduce the take-home pay. However, the new law does not address PF contributions for employees earning above Rs 15,000 per month in basic wages.
My queries are:
1) If a company, with the employee's consent, decides to cap the basic salary at Rs 15,000 and the monthly PF contribution at Rs 1,800, would this action violate the law?
2) What is the process for informing EPFO about restructuring salary contributions to EPF? Many employees wish to limit their contributions to the statutory maximum.
3) I also seek the experts' opinion on the government's rationale for this change, especially considering that the tax deduction under section 80C has not been increased. This means the employee's take-home pay will decrease as they contribute more to EPF and pay taxes on the same amount.
4) I need clarification on whether EPF contributions are limited to "allowances" and do not cover reimbursements or amounts paid to employees for expenses. There have been inquiries on this matter causing confusion.
Please assist me with these questions.
Regards,
Anuradha Grewal
From India, Mumbai
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(Fact Checked)-The Employee Provident Fund Organization (EPFO) directive includes special allowances in PF calculation. Capping employee PF contribution at Rs 15,000 and restructuring salary must comply with the law. EPF contributions are not limited to 'allowances' only. (1 Acknowledge point)
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Friends, PFA analysis of PWC on the Supreme Court ruling. Thanks
From India, Malappuram
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From India, Malappuram
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(Fact Check Failed/Partial)-[The reply is incomplete and lacks the analysis of the Supreme Court ruling mentioned in the original post. More detailed insights are needed to provide a comprehensive understanding.]
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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.
From India, Bangalore
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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.
From India, Bangalore
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(Fact Checked)-The user's reply contains accurate information regarding the impact of the Supreme Court judgment on EPF contributions and the treatment of allowances. The explanations provided align with the legal provisions and interpretations. (1 Acknowledge point)
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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. 15,000 per month. My only question is, if we change our EPF contribution after the Supreme Court order, will the regional EPFO under whose jurisdiction my organization falls object to such modification? If so, how do we resolve this problem?
Also, if retrospective EPF contribution is to be paid, what is the period to be considered? For example, if employee A had PF deducted on salary and not on Special Allowance, but after the SC order, we are obliged to pay the PF retrospectively. Now, under the said judgment, retrospective corresponds to what period as the employee may have been working with us for the last 10 years.
Please advise, as there are more questions than answers available.
Thanking you,
Warm Regards,
Anuradha
From India, Mumbai
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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. 15,000 per month. My only question is, if we change our EPF contribution after the Supreme Court order, will the regional EPFO under whose jurisdiction my organization falls object to such modification? If so, how do we resolve this problem?
Also, if retrospective EPF contribution is to be paid, what is the period to be considered? For example, if employee A had PF deducted on salary and not on Special Allowance, but after the SC order, we are obliged to pay the PF retrospectively. Now, under the said judgment, retrospective corresponds to what period as the employee may have been working with us for the last 10 years.
Please advise, as there are more questions than answers available.
Thanking you,
Warm Regards,
Anuradha
From India, Mumbai
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(Fact Checked)-The EPFO cannot object to changing EPF contributions post the SC order. Retrospective PF payments should consider the entire tenure. Thank you for seeking clarification. (1 Acknowledge point)
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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.
From India, Bangalore
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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.
From India, Bangalore
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(Fact Checked)-The user reply provides an accurate summary of the Supreme Court judgment regarding the computation of Provident Fund deduction based on special allowances. The response correctly highlights the key points and implications of the judgment. (1 Acknowledge point)
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Dear Mr. Kumar,
Many thanks for your elaborate response. I have found a new judgment that may help with what I am trying to endeavor. Attached is the Supreme Court judgment regarding no restriction on the reduction of EPF contribution by the employer, even though previously the contribution was above the statutory limit.
My questions are as follows:
1) Now, in light of this 2011 judgment, can I reduce the EPF contribution of both the employer and employee to Rs 15,000 even though previously my contribution was above the statutory limit?
2) Kindly let me know if you are aware of any judgment that contradicts the one attached.
I am eagerly awaiting your elaborate response, which acts as a guiding light to many.
Regards,
Anuradha Grewal
From India, Mumbai
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Many thanks for your elaborate response. I have found a new judgment that may help with what I am trying to endeavor. Attached is the Supreme Court judgment regarding no restriction on the reduction of EPF contribution by the employer, even though previously the contribution was above the statutory limit.
My questions are as follows:
1) Now, in light of this 2011 judgment, can I reduce the EPF contribution of both the employer and employee to Rs 15,000 even though previously my contribution was above the statutory limit?
2) Kindly let me know if you are aware of any judgment that contradicts the one attached.
I am eagerly awaiting your elaborate response, which acts as a guiding light to many.
Regards,
Anuradha Grewal
From India, Mumbai
Acknowledge(0)Amend(0)CiteHR.AI
(Fact Check Failed/Partial)-The information provided in the user reply is incorrect. As of now, there is no Supreme Court judgement allowing the reduction of EPF contribution to Rs 15,000 for both employer and employee, even if the previous contribution exceeded the statutory limit. It is essential to adhere to the current rules and regulations regarding EPF contributions.
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LTA Order of Supreme Court.pdf
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(Fact Checked)-The information provided in the user reply is mostly accurate. However, it's important to note that the recent Supreme Court judgment clarified that special allowances are to be included in the definition of "basic wages" for PF deduction. This decision impacts both employees and employers in the calculation of PF contributions. Overall, the reply offers valuable insights and considerations. (1 Acknowledge point)