MISHRA AND NAVIN SINHA, JJ.]versusVIVEKANANDA VIDYAMANDIR AND OTHERS

                         [2019] 2 S.C.R. 275                             275


  THE REGIONAL PROVIDENT FUND COMMISSIONER (II)                          A
                    WEST BENGAL
                            v.
      VIVEKANANDA VIDYAMANDIR AND OTHERS
             (Civil Appeal No. 6221 of 2011)
                                                                         B
                       FEBRUARY 28, 2019
            [ARUN MISHRA AND NAVIN SINHA, JJ.]
         Employees’ Provident Fund and Miscellaneous Provisions
Act, 1952: s. 2(b)(ii) r/w s. 6 – Deduction towards Provident Fund –
Computation of – Special allowances paid by an establishment to          C
its employees, if to be included within the expression basic wages u/
s. 2 (b)(iii) rw s. 6 for the purpose of computation – Held: Special
allowance was to be included in basic wage for deduction of
provident fund contribution – Test adopted to determine if any
payment was to be excluded from basic wage is that the payment
under the scheme must have a direct access and linkage to the            D
payment of such special allowance as not being common to all –
Crucial test is one of universality – On facts, the establishments
could not show 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 –Both the          E
authority and the appellate authority rightly held that allowances
in question were essentially a part of the basic wage camouflaged
as part of an allowance so as to avoid deduction of provident fund
contribution.
         Allowing the appeal of the Regional Provident Fund
Commissioner, and dismissing the appeals of the Establishments,          F
the Court
         HELD: 1.1 Basic wage, would not ipso-facto take within
its ambit the salary breakup structure to hold it liable for provident
fund deductions when it was paid as special incentive or production
bonus given to more meritorious workmen who put in extra output          G
which has a direct nexus and linkage with the output by the eligible
workmen. When a worker produces beyond the base or standard,
what he earns was not basic wage. This incentive wage will fall
outside the purview of basic wage. Basic wage, under the
Employees’ Provident Fund and Miscellaneous Provisions Act,
                                                                         H
                                 275
276               SUPREME COURT REPORTS                 [2019] 2 S.C.R.


A     1952, has been defined as all emoluments paid in cash to an
      employee in accordance with the terms of his contract of
      employment. But it carves out certain exceptions which would
      not fall within the definition of basic wage and which includes
      dearness allowance apart from other allowances mentioned
      therein. But this exclusion of dearness allowance finds inclusion
B
      in Section 6. The test adopted to determine if any payment was
      to be excluded from basic wage is that the payment under the
      scheme must have a direct access and linkage to the payment of
      such special allowance as not being common to all. The crucial
      test is one of universality. The employer, under the Act, has a
C     statutory obligation to deduct the specified percentage of the
      contribution from the employee’s salary and make matching
      contribution. The entire amount is then required to be deposited
      in the fund within 15 days from the date of such collection.
      [Para 7, 9][281-G-H, 282-A, 285-D-E]
D             1.2 Applying the tests to the facts of the instant 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
E     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
F     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
G     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
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    REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v.                     277
         VIVEKANANDA VIDYAMANDIR & ORS.

employees. There is no occasion to interfere with the concurrent      A
conclusions of facts. [Para 14][287-F-F, 288-A-B]
      Bridge and Roof Co. (India) Ltd. v. Union of India
      [1963] 3 SCR 978 - relied on.
      Muir Mills Co. Ltd., Kanpur v. Its Workmen AIR 1960
      SC 985 : [1960] SCR 488;Manipal Academy of Higher               B
      Education v. Provident Fund Commissioner (2008) 5
      SCC 428 : [2008] 4 SCR 772; Kichha Sugar Company
      Limited through General Manager v. Tarai Chini Mill
      Majdoor Union, Uttarakhand (2014) 4 SCC 37:[2014]
      1 SCR 157; The Daily Partap v. The Regional Provident
      Fund Commissioner, Punjab, Haryana, Himachal                    C
      Pradesh and Union Territory, Chandigarh (1998) 8
      SCC 90 : [1998] 2 Suppl. SCR 482 – referred to.
                       Case Law Reference
[1963] 3 SCR 978              relied on.              Para 9
                                                                      D
[1960] SCR 488                referred to             Para 10
[2008] 4 SCR 772              referred to             Para 11
[2014] 1 SCR 157              referred to             Para 12
[1998] 2 Suppl. SCR 482       referred to             Para 13
                                                                      E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6221
OF 2011
        From the Judgment and Order dated 22.02.2007 of the High
Court at Calcutta in MAT No. 410 of 1999
                               WITH                                   F
Civil Appeal Nos. 3965-3966/2013, 3967-3968/2013, 3969-3970/2013,
T.C. (C) No. 19/2019.
        Vikramajit Banerjee, Sanjay Kumar Jain, ASGs, Ranjit Kumar,
Sr. Adv., Ms. Shruti Agarwal, Ayush Anand, Vaibhav Chadha,
Ms. Archana Pathak Dave, Harvinder Singh, Ms. Suruchi Aggarwal,       G
Gagan Gupta, Adv. Ms. Alka Agrawal, Sanjay Kumar Tyagi, Raj Bahadur
Yadav, Ms. Sana Hashmi, Salman Hashmi, Ms. Liz Mathew, M. Shoeb
Alam, Ujjwal Singh, Gautam Prabhakar, Mojahid Karim Khan,
Anand Gopalan, T. Harish Kumar, Navneet Dugar, Ms. Saroj Bala,
Varun Agarwal, Gaurav Agarwal, Sarad Kumar Singhania,
                                                                      H
278               SUPREME COURT REPORTS                    [2019] 2 S.C.R.


A Ms. Rashmi Singhania, Sharan Vijay, Chandra Prakash, Mrs. Anil Katiyar,
  Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J.
            The appellants with the exception of Civil Appeal No. 6221 of
B 2011, are establishments covered under the Employees’ Provident Fund
  and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the
  “Act”). 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
C of the Act for computation of deduction towards Provident Fund. The
  appeals have therefore been heard together and are being disposed by a
  common order.
            2. It is considered appropriate to briefly set out the individual
  facts of each appeal for better appreciation.
            Civil Appeal No. 6221 of 2011: The respondent is an unaided
D
  school giving special allowance by way of incentive to teaching and non-
  teaching staff pursuant to an agreement between the staff and the
  management. The incentive was reviewed from time to time upon
  enhancement of the tuition fees of the students. The authority under the
  Act held that the special allowance was to be included in basic wage for
E deduction of provident fund. The Single Judge set aside the order. The
  Division Bench initially after examining the salary structure allowed the
  appeal on 13.01.2005 holding that the special allowance was a part of
  dearness allowance liable to deduction. The order was recalled on
  16.01.2007 at the behest of the respondent as none had appeared on its
  behalf. The subsequent Division Bench dismissed the appeal holding
F
  that the special allowance was not linked to the consumer price index,
  and therefore did not fall within the definition of basic wage, thus not
  liable to deduction.
          Civil Appeal Nos. 3965-66 of 2013: The appellant was paying
  basic wage + variable dearness allowance(VDA) + house rent
G
  allowance(HRA) + travel allowance + canteen allowance + lunch
  incentive. The special allowances not having been included in basic wage,
  deduction for provident fund was not made from the same. The authority
  under the Act held that only washing allowance was to be excluded
  from basic wage. The High Court partially allowed the writ petition by
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  REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v.                                 279
VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.]

excluding lunch incentive from basic wage. A review petition against the        A
same by the appellant was dismissed.
        Civil Appeal Nos. 3969-70 of 2013: The appellant was not
deducting Provident Fund contribution on house rent allowance, special
allowance, management allowance and conveyance allowance by
excluding it from basic wage. The authority under the Act held that the         B
allowances had to be taken into account as basic wage for deduction.
The High Court dismissed the writ petition and the review petition filed
by the appellant.
         Civil Appeal Nos. 3967-68 of 2013: The appellant company
was not deducting Provident Fund contribution on house rent allowance,          C
special allowance, management allowance and conveyance allowance
by excluding it from basic wage. The authority under the Act held that
the special allowances formed part of basic wage and was liable to
deduction. The writ petition and review petition filed by the appellant
were dismissed.
         Transfer Case (C) No.19 of 2019 (arising out of T.P. (C)               D
         No. 1273 of 2013): The petitioner filed W.P. No. 25443 of
2010 against the show cause notice issued by the authority under the
Act calling for records to determine if conveyance allowance, education
allowance, food concession, medical allowance, special holidays, night
shift incentives and city compensatory allowance constituted part of basic      E
wage. The writ petition was dismissed being against a show cause notice
and the statutory remedy available under the Act, including an appeal.
A Writ Appeal (Civil) No.1026 of 2011 was preferred against the same
and which has been transferred to this Court at the request of the petitioner
even before a final adjudication of liability.
                                                                                F
         3. We have heard learned Additional Solicitor General,
Shri Vikramajit Banerjee and Shri Sanjay Kumar Jain appearing for the
Regional Provident Fund Commisioner and Shri Ranjit Kumar, learned
Senior Counsel who made the lead arguments on behalf of the
Establishment-appellants, and also Mr. Anand Gopalan, learned counsel
appearing for the petitioner in the transfer petition.                          G
         4. Shri Vikramajit Banerjee, learned Additional Solicitor General
appearing for the appellant in Civil Appeal No. 6221 of 2011, submitted
that the special allowance paid to the teaching and non-teaching staff of
the respondent school was nothing but camouflaged dearness allowance
                                                                                H
280                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     liable to deduction as part of basic wage. Section 2(b)(ii) defined dearness
      allowance as all cash payment by whatever name called paid to an
      employee on account of a rise in the cost of living. The allowance shall
      therefore fall within the term dearness allowance, irrespective of the
      nomenclature, it being paid to all employees on account of rise in the
      cost of living. The special allowance had all the indices of a dearness
B
      allowance. A bare perusal of the breakup of the different ingredients of
      the salary noticed in the earlier order of the Division Bench dated
      13.01.2005 makes it apparent that it formed part of the component of
      pay falling within dearness allowance. The special allowance was also
      subject to increment on a time scale. The Act was a social beneficial
C     welfare legislation meant for protection of the weaker sections of the
      society, i.e. the workmen, and was therefore, required to be interpreted
      in a manner to sub-serve and advance the purpose of the legislation.
      Under Section 6 of the Act, the appellant was liable to pay contribution
      to the provident fund on basic wages, dearness allowance, and retaining
      allowance (if any). To exclude any incentive wage from basic wage, it
D
      should have a direct nexus and linkage with the amount of extra output.
      Relying on Bridge and Roof Co. (India) Ltd. vs. Union of India,
      (1963) 3 SCR 978, it was submitted that whatever is payable by all
      concerns or earned by all permanent employees had to be included in
      basic wage for the purpose of deduction under Section 6 of the Act. It
E     is only such allowances not payable by all concerns or may not be earned
      by all employees of the concern, that would stand excluded from
      deduction. It is only when a worker produces beyond the base standard,
      what he earns would not be a basic wage but a production bonus or
      incentive wage which would then fall outside the purview of basic wage
      under Section 2(b) of the Act. Since the special allowance was earned
F
      by all teaching and non-teaching staff of the respondent school, it has to
      be included for the purpose of deduction under Section 6 of the Act.
      The special allowance in the present case was a part of the salary breakup
      payable to all employees and did not have any nexus with extra output
      produced by the employee out of his allowance, and thus it fell within the
G     definition of “basic wage”.
                5. The common submission on behalf of the appellants in the
      remaining appeals was that basic wages defined under Section 2(b)
      contains exceptions and will not include what would ordinarily not be
      earned in accordance with the terms of the contract of employment.
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  REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v.                                   281
VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.]

Even with regard to the payments earned by an employee in accordance              A
with the terms of contract of employment, the basis of inclusion in Section
6 and exclusion in Section 2(b)(ii) is that whatever is payable in all concerns
and is earned by all permanent employees is included for the purpose of
contribution under Section 6. But whatever is not payable by all concerns
or may not be earned by all employees of a concern are excluded for the
                                                                                  B
purposes of contribution. Dearness allowance was payable in all concerns
either as an addition to basic wage or as part of consolidated wages.
Retaining allowance was payable to all permanent employees in seasonal
factories and was therefore included in Section 6. But, house rent
allowance is not paid in many concerns and sometimes in the same
concern, it is paid to some employees but not to others, and would                C
therefore stand excluded from basic wage. Likewise overtime allowance
though in force in all concerns, is not earned by all employees and would
again stand excluded from basic wage. It is only those emoluments
earned by an employee in accordance with the terms of employment
which would qualify as basic wage and discretionary allowances not
                                                                                  D
earned in accordance with the terms of employment would not be covered
by basic wage. The statute itself excludes certain allowance from the
term basic wages. The exclusion of dearness allowance in Section
2(b)(ii) is an exception but that exception has been corrected by including
dearness allowance in Section 6 for the purpose of contribution.
          6. Attendance incentive was not paid in terms of the contract of        E
employment and was not legally enforceable by an employee. It would
therefore not fall within basic wage as it was not paid to all employees
of the concern. Likewise, transport/conveyance allowance was similar
to house rent allowance, as it was reimbursement to an employee. Such
payments are ordinarily not made universally, ordinarily and necessarily          F
to all employees and therefore will not fall within the definition of basic
wage. To hold that canteen allowance was paid only to some employees,
being optional was not to be included in basic wage while conveyance
allowance was paid to all employees without any proof in respect thereof
was unsustainable.
          7. Basic wage, would not ipso-facto take within its ambit the           G
salary breakup structure to hold it liable for provident fund deductions
when it was paid as special incentive or production bonus given to more
meritorious workmen who put in extra output which has a direct nexus
and linkage with the output by the eligible workmen. When a worker
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282                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     produces beyond the base or standard, what he earns was not basic
      wage. This incentive wage will fall outside the purview of basic wage.
               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.
B            “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;
C
             (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
D            employment.
             (iii) Any presents made by the employer;
             Section 6: Contributions and matters which may be provided for
             in Schemes. – The contribution which shall be paid by the employer
             to the Fund shall be ten percent. Of the basic wages, dearness
E            allowance and retaining allowance, if any, for the time being
             payable to each of the employees whether employed by him
             directly or by or through a contractor, and the employees’
             contribution shall be equal to the contribution payable by the
             employer in respect of him and may, if any employee so desires,
             be an amount exceeding ten percent of his basic wages, dearness
F            allowance and retaining allowance if any, subject to the condition
             that the employer shall not be under an obligation to pay any
             contribution over and above his contribution payable under this
             section:
             Provided that in its application to any establishment or class of
G            establishments which the Central Government, after making such
             inquiry as it deems fit, may, by notification in the Official Gazette
             specify, this section shall be subject to the modification that for
             the words “ten percent”, at both the places where they occur, the
             words “12 percent” shall be substituted:

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  REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v.                                283
VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.]

       Provided further that where the amount of any contribution payable      A
       under this Act involves a fraction of a rupee, the Scheme may
       provide for rounding off of such fraction to the nearest rupee, half
       of a rupee, or quarter of a rupee.
       Explanation I – For the purposes of this section dearness allowance
       shall be deemed to include also the cash value of any food
                                                                               B
       concession allowed to the employee.
       Explanation II. – For the purposes of this section, “retaining
       allowance” means allowance payable for the time being to an
       employee of any factory or other establishment during any period
       in which the establishment is not working, for retaining his
       services.”                                                              C
         9. Basic wage, under the Act, has been defined as all emoluments
paid in cash to an employee in accordance with the terms of his contract
of employment. But it carves out certain exceptions which would not
fall within the definition of basic wage and which includes dearness
allowance apart from other allowances mentioned therein. But this              D
exclusion of dearness allowance finds inclusion in Section 6. The test
adopted to determine if any payment wasto be excluded from basic
wage is that the payment under the scheme must have a direct access
and linkage to the payment of such special allowance as not being
common to all. The crucial test is one of universality. The employer,
under the Act, has a statutory obligation to deduct the specified percentage   E
of the contribution from the employee’s salary and make matching
contribution. The entire amount is then required to be deposited in the
fund within 15 days from the date of such collection. The aforesaid
provisions fell for detailed consideration by this Court in Bridge & Roof
(supra) when it was observed as follows:                                       F
       “7. The main question therefore that falls for decision is as to
       which of these two rival contentions is in consonance with s. 2(b).
       There is no doubt that “basic wages” as defined therein means all
       emoluments which are earned by an employee while on duty or
       on leave with wages in accordance with the terms of the contract
                                                                               G
       of employment and which are paid or payable in cash. If there
       were no exceptions to this definition, there would have been no
       difficulty in holding that production bonus whatever be its nature
       would be included within these terms. The difficulty, however,
       arises because the definition also provides that certain things will
       not be included in the term “basic wages”, and these are contained      H
284          SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A     in three clauses. The first clause mentions the cash value of any
      food concession while the third clause mentions that presents made
      by the employer. The fact that the exceptions contain even presents
      made by the employer shows that though the definition mentions
      all emoluments which are earned in accordance with the terms of
      the contract of employment, care was taken to exclude presents
B
      which would ordinarily not be earned in accordance with the terms
      of the contract of employment. Similarly, though the definition
      includes “all emoluments” which are paid or payable in cash, the
      exception excludes the cash value of any food concession, which
      in any case was not payable in cash. The exceptions therefore do
C     not seem to follow any logical pattern which would be in consonance
      with the main definition.
      8. Then we come to clause (ii). It excludes dearness allowance,
      house-rent allowance, overtime allowance, bonus, commission or
      any other similar allowance payable to the employee in respect of
D     his employment or of work done in such employment. This
      exception suggests that even though the main part of the definition
      includes all emoluments which are earned in accordance with the
      terms of the contract of employment, certain payments which are
      in fact the price of labour and earned in accordance with the
      terms of the contract of employment are excluded from the main
E     part of the definition of “basic wages”. It is undeniable that the
      exceptions contained in clause (ii) refer to payments which are
      earned by an employee in accordance with the terms of his
      contract of employment. It was admitted by counsel on both sides
      before us that it was difficult to find any one basis for the
F     exceptions contained in the three clauses. It is clear however
      from clause (ii) that from the definition of the word “basic wages”
      certain earnings were excluded, though they must be earned by
      employees in accordance with the terms of the contract of
      employment. Having excluded “dearness allowance” from the
      definition of “basic wages”, s. 6 then provides for inclusion of
G     dearness allowance for purposes of contribution. But that is clearly
      the result of the specific provision in s. 6 which lays down that
      contribution shall be 6-1/4 per centum of the basic wages, dearness
      allowance and retaining allowance (if any). We must therefore
      try to discover some basis for the exclusion in clause (ii) as also
      the inclusion of dearness allowance and retaining allowance (for
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  REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v.                               285
VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.]

   any) in s. 6. It seems that the basis of inclusion in s. 6 and exclusion   A
   in clause (ii) is that whatever is payable in all concerns and is
   earned by all permanent employees is included for the purpose, of
   contribution under s. 6, but whatever is not payable by all concerns
   or may not be earned by all employees of a concern is excluded
   for the purpose of contribution. Dearness allowance (for examples
                                                                              B
   is payable in all concerns either as an addition to basic wages or
   as a part of consolidated wages where a concern does not have
   separate dearness allowance and basic wages. Similarly, retaining
   allowance is payable to all permanent employees in all seasonal
   factories like sugar factories and is therefore included in s. 6; but
   house-rent allowance is not paid in many concerns and sometimes            C
   in the same concern it is paid to some employees but not to others,
   for the theory is that house-rent is included in the payment of
   basic wages plus dearness allowance or consolidated wages.
   Therefore, house-rent allowance which may not be payable to all
   employees of a concern and which is certainly not paid by all
                                                                              D
   concern is taken out of the definition of “basic wages”, even though
   the basis of payment of house-rent allowance where it is paid is
   the contract of employment. Similarly, overtime allowance though
   it is generally in force in all concerns is not earned by all employees
   of a concern. It is also earned in accordance with the terms of the
   contract of employment; but because it may not be earned by all            E
   employees of a concern it is excluded from “basic wages”.
   Similarly, commission or any other similar allowance is excluded
   from the definition of “basic wages” for commission and other
   allowances are not necessarily to be found in all concerns; nor
   are they necessarily earned by all employees of the same concern,
                                                                              F
   though where they exist they are earned in accordance with the
   terms of the contract of employment. It seems therefore that the
   basis for the exclusion in clause (ii) of the exceptions in s. 2(b) is
   that all that is not earned in all concerns or by all employees of
   concern is excluded from basic wages. To this the exclusion of
   dearness allowance in clause (ii) is an exception. But that exception      G
   has been corrected by including dearness allowance in s. 6 for
   the purpose of contribution. Dearness allowance which is an
   exception in the definition of “basic wages”, is included for the
   propose of contribution by s. 6 and the real exceptions therefore
   in clause (ii) are the other exceptions beside dearness allowance,
   which has been included through S. 6.”                                     H
286                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A               10. Any variable earning which may vary from individual to
      individual according to their efficiency and diligence will stand excluded
      from the term “basic wages” was considered in Muir Mills Co. Ltd.,
      Kanpur Vs. Its Workmen, AIR 1960 SC 985 observing:
             “11. Thus understood “basic wage” never includes the additional
B            emoluments which some workmen may earn, on the basis of a
             system of bonuses related to the production. The quantum of
             earning in such bonuses varies from individual to individual
             according to their efficiency and diligence; it will vary sometimes
             from season to season with the variations of working conditions
             in the factory or other place where the work is done; it will vary
C            also with variations in the rate of supplies of raw material or in the
             assistance obtainable from machinery. This very element of
             variation, excludes this part of workmen’s emoluments from the
             connotation of “basic wages”…”
                11. In Manipal Academy of Higher Education vs. Provident
D     Fund Commissioner, (2008) 5 SCC 428, relying upon Bridge Roof’s
      case it was observed:
             “10. The basic principles as laid down in Bridge Roof’s case (supra)
             on a combined reading of Sections 2(b) and 6 are as follows:
             (a) Where the wage is universally, necessarily and ordinarily paid
E            to all across the board such emoluments are basic wages.
             (b) Where the payment is available to be specially paid to those
             who avail of the opportunity is not basic wages. By way of example
             it was held that overtime allowance, though it is generally in force
             in all concerns is not earned by all employees of a concern. It is
             also earned in accordance with the terms of the contract of
F
             employment but because it may not be earned by all employees
             of a concern, it is excluded from basic wages.
             (c) Conversely, any payment by way of a special incentive or
             work is not basic wages.”
                12. The term basic wage has not been defined under the Act.
G     Adverting to the dictionary meaning of the same in Kichha Sugar
      Company Limited through General Manager vs. Tarai Chini Mill
      Majdoor Union, Uttarakhand, (2014) 4 SCC 37, it was observed as
      follows:

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  REGIONAL PROVIDENT FUND COMMNR. (II) W. B. v.                                 287
VIVEKANANDA VIDYAMANDIR & ORS. [NAVIN SINHA, J.]

        “9. According to http://www.merriam-webster.com (Merriam                A
        Webster Dictionary) the word ‘basic wage’ means as follows:
        1. A wage or salary based on the cost of living and used as a
        standard for calculating rates of pay
        2. A rate of pay for a standard work period exclusive of such
        additional payments as bonuses and overtime.                            B
        10. When an expression is not defined, one can take into account
        the definition given to such expression in a statute as also the
        dictionary meaning. In our opinion, those wages which are
        universally, necessarily and ordinarily paid to all the employees
        across the board are basic wage. Where the payment is available
        to those who avail the opportunity more than others, the amount         C
        paid for that cannot be included in the basic wage. As for example,
        the overtime allowance, though it is generally enforced across the
        board but not earned by all employees equally. Overtime wages
        or for that matter, leave encashment may be available to each
        workman but it may vary from one workman to other. The extra            D
        bonus depends upon the extra hour of work done by the workman
        whereas leave encashment shall depend upon the number of days
        of leave available to workman. Both are variable. In view of what
        we have observed above, we are of the opinion that the amount
        received as leave encashment and overtime wages is not fit to be
        included for calculating 15% of the Hill Development Allowance.”        E
          13. That the Act was a piece of beneficial social welfare
legislation and must be interpreted as such was considered in TheDaily
Partap vs. The Regional Provident Fund Commissioner, Punjab,
Haryana, Himachal Pradesh and Union Territory, Chandigarh,
(1998) 8 SCC 90.                                                                F
        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         G
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
                                                                                H
288                SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A 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
B
  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
C the establishments therefore merit no interference. Conversely, for the
  same reason the appeal preferred by the Regional Provident Fund
  Commissioner deserves to be allowed.
           15. Resultantly, Civil Appeal No. 6221 of 2011 is allowed. Civil
  Appeal Nos. 3965-66 of 2013, Civil Appeal Nos. 3967-68 of 2013, Civil
D Appeal Nos. 3969-70 of 2013 and Transfer Case (C) No.19 of 2019 are
  dismissed.

      Nidhi Jain                                            Appeals disposed of.



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