B.P. Banerjee, J. - (1.) This is an appeal against the judgment and order dated February 28, 1996 passed in C.O. No. 14917 (W) of 1992 passed by ASHOK KUMAR CHAKRABORTY (as His Lordship then was) dismissing the writ petition holding inter alia, that the School management was liable to pay the statutory liability of making payment of provident fund in accordance with the provisions of Section 6 of the Employees' Provident Funds and Miscellaneous Provisions Act in respect of Dearness Allowances paid by the Government to the School Authorities for payment to the teaching and non-teaching staff of the School concerned.
(2.) It is not in dispute that the petitioner is a Society registered under the Societies Registration Act and runs and manages an Educational Institution known as Gyan Bharati Vidyapith and the staff of the said School receive Government Dearness Allowance from the District Inspector of Schools (Secondary Education) at the Government prescribed rate. The question that falls for our determination in this appeal is whether the Managing Committee of the School is liable to pay to the provident fund for that part of the Dearness Allowance which is contributed and given by the State as an aid to the Educational Institution. It is not in dispute that the Managing Committee of the said school is paying and it is admitted by the petitioners that they are liable to pay provident fund and they are paying provident fund on the salary and that part of the Dearness Allowance which is being paid by the Managing Committee but their case is that they are not liable to pay the provident fund in respect of that part of the Dearness Allowance which is sanctioned and granted by way of an aid by the Government under certain schemes which have been framed by the Government for the purpose of giving certain reliefs and/or mitigate the hardship of this Institution in the matter of paying Dearness Allowance at the Government rate.
(3.) Mr. Bhaskar Gupta, learned Counsel appearing for the petitioner appellant submitted that the Managing Committee of the School cannot be made liable to make payment of the provident funds is respect of the Dearness Allowance paid by the Government to the teachers through the Managing Committee of the said School. There is no doubt that the appellant has been regularly making all contributions towards provident funds of the teaching and non-teaching staff of the said School on salary and other emoluments paid by the appellant to the concerned staff. The Provident Fund Authorities issued a notice upon the Managing Committee requiring it to make payment of the provident funds in respect of that part of the Dearness Allowance which was paid by the Government and against that notice, the appellant moved the Writ Court. Upon hearing the parties the learned Single Judge by an order dated February 28, 1996 dismissed the said writ petition. Mr. Gupta submitted that the provisions of Section 6 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the said Act) has to be construed keeping in mind the provisions of Section 2(b) of the Act which defines basic wages. Section 6 of the said Act provides for liability to make payment and the same is the charging section under which the provident funds are required to be paid which are as follows: 6. "Contribution and matters which may be provided for in schemes - The contribution which shall be paid by the employer to the fund shall be eight and one third per cent of the basic wages (Dearness 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, by an amount exceeding eight and one third per cent of his basic wages. Dearness 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. Basic wages has been defined in Section 2(b) of the said Act which means:- (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), house rent allowance, overtime allowance, bonus, commission or other similar allowance payable to the employee in respect of his employment or of work done in such employment; (iii) any presents made by the employer." Mr. Gupta submitted that when basic wages has been defined to mean only the amount payable under the contract of employment, excluding the Dearness Allowance in that event the same meaning has to be given while deciding the right to make payment by the employer under Section 6 of the said Act. Mr. Gupta also submitted that in respect of Dearness Allowance paid by the State Government, State Government has to pay provident fund contribution and the Managing Committee or the School Authorities cannot be compelled to pay provident fund dues on that score. It was further submitted by Mr. Gupta that there is a Drawing and Disbursing Officer appointed by the State Government in respect of the Dearness Allowance contributions made by the State Government as State Government found that the Managing Committee had not been properly constituted and the Drawing and Disbursing Officer is drawing the amount and paying to the teachers. This was done solely for the purpose of taking care of the money paid by the Government and distribution is being made by an Officer appointed by the State Government. It is further submitted by Mr. Gupta that since the Dearness Allowance money is being withdrawn by the Drawing and Disbursing Officer and the same is being paid to the teachers, the Managing Committee has no manner of control over the same and the said money cannot form part of the funds of the said School and the fund of the said School cannot be made to be utilised for the purpose of meeting the provident fund liabilities in respect of the Dearness Allowance paid by the Government in this behalf.;