(a) Where the wage is universally, necessarily and ordinarily paid 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 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.”
In the instant case, the Court noted that no material had 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. There was nothing to show that the allowances in question were not paid across the board to all employees in a particular category.
The Court made it clear that 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.
Since there was no material or data to that effect in the instant case, the appeal filed by the Regional Provident Fund Commissioner was allowed while the appeals by the Establishments were dismissed.
In view of the above ruling of SC our WP has been strengthened because special allowancee introduced in last BPS is paid across the Board and fall within the definition of wage. Let us prey to god that we also get success in our pursuit for inclusion of special allowance for retirement benefits being agitated before hon'ble HC Lucknow bench . copy of judgment is enclosed with regard.
Above statement is taken from whatsapp message.
Following message is also captured from whatsapp
The Supreme Court on 28 .2.2019 by this Judgment decided that Special Allowance Competent forming Wages will rank for EPF contributions by the employer. It may form an argument for counting Special Pay, for PF / Retirement Benefits to the Bank Employees retired during 1.11.2012 to 31.10.2017, but it cannot be the base or case law to conclude it . The thorough study of this Judgment and correlating it with one other Judgment by Supreme on validity of Joint Note, contrary to general rules, may add to the logic to support that Special Pay/ Allowance of 10th BPS, should be included for PF and Pension also. BUT it is not easy to achieve it, and will have to be pursued through judiciary, by reinforcing more arguments to add with above two.
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*Supreme Court agrees to hear all writ against bank Merger*
Honorable Supreme Court of India as given today hearing on the interme applications of AIBOA Rajasthan/ Dena Bank Officers'Union Rajasthan and also of AIBOC and Vijaya Bank organization for an early listing and give hearing on writ petition filed before Rajasthan High Court and Delhi High court, being the matter of utter importance and that the proposed amalgamation is going to take place wef 1/4/2019, so the hearing is necessary prior to it.
Solicitor General Shri Tushar Mehta appeared on behalf of Bank of Baroda whereas our organization was represented by Ex- Add. Solicitor General Shri P S Narsimham along with Adv. Pradeep Chaudhary and Ajay Chauduary. From other organizations also Sr lawers appeared.
After the hearing, Hon'ble Supreme Court has agreed to transfer all writ pertions together to Supreme Court itself with the direction to all petitioners to the matter to file copies of the original writ petitions before the supreme Court by 6.3.2019, with room to respondents to file reply by 11/3/2019, where on mentioning before CJI of supreme Court a date would be given soonest for final hearing.
Comrades, we have moved a step ahead by making the Supreme Court to hear the matter which BOB dragged up to 28/3/2019 earlier taking ex parte stay.
Red salute to all of you.
We will win.
Lokesh Mishra/ N K Sharma
GS DBOU Rajasthan/ AIBOA RAJASTHAN
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Message appeared on bar and bench website link of which is given below.
The Supreme Court has held that variable earning which may vary from individual to individual according to their efficiency and diligence will stand excluded from the term “Basic Wages” under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Provident Fund Act).
However, 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, a Bench of Justices Arun Mishra and Navin Sinha held.
The judgment was delivered by the Court in a batch of appeals involving a common question. The question was as follows:
“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.”
https://barandbench.com/special-allowance-definition-basic-wages-provident-fund-act-supreme-court/
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