D.S. Tewatia, J. - (1.) THESE are two writ petitions Nos. 7983 of 1976 and 412 of 1977 filed by the same Petitioner against the Respondents, who are common to both the petitions, seeking thereby to have the order dated 24th May, 1976, as also the order dated 29th October, 1976, annexed to civil writ petition No. 412 of 1977 as annexures P. 2 and P. 1 respectively, quashed both being passed by the same authority i.e. Respondent No. 1 under Section 7A of the Employees Provident Funds and Miscellaneous Provision Act, 1952, hereinafter referred to as the Act. The order, Annexure P. 2, was inter alia, challenged on the ground that the same had been passed ex parte without affording any opportunity to the Petitioner, besides being non -speaking. This order was challenged by the Petitioner in Civil Writ No. 7893 of 1976. During the pendency of the said writ petition, the order, annexure P. 1, dated 29th October, 1976, was passed. The Petitioner amended that writ petition and incorporated in the petition a challenge to this later order also. However, by way of abundant caution, the Petitioner filed a fresh petition being Civil Writ No. 412 of 1977 challenging therein the later order, annexure P. 1. The purpose of both the writ petitions being the same and the parties also being the same, they are sought to be disposed of by. a common judgment. However, wherever necessary, the assertions made in the petition, as also the pleas in the reply, and the documents supplied by the two sides, as found mentioned in Civil Writ No. 412 of 1977, shall be referred to.
(2.) SINCE the first order of Respondent No. 1 dated 24th May, 1976, annexure P. 2, had been superseded by Respondent No. 1 by his later order dated 29th October, 1976, so primarily it is the validity of this later order that falls for determination. The Petitioner has laid a challenge to the validity of this later order on the ground that it is not a speaking order and it has been passed without considering the material made available by the Petitioner, -vide its letter, annexure P. 3, dated 24th July, 1976, and the annexures annexed thereto. Though the petitions are bulky, yet the point of controversy between the parties lies in a very narrow compass. Stated briefly, it is: whether at the relevant time the wages paid by the Petitioner establishment to its employees for additional working hours form part of the basic wages as defined by Clause (b) of Section 2 of the Act or not? Relevant portion of Section 2(b) of the Act is" in the following terms: 2. (b) 'basic wages' 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 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 any 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.
(3.) THE Regional Provident Funds Commissioner, Respondent No. 1, in the impugned order, had treated the remuneration received by the employees for the work done during the 'additional hours' as part of the 'basic wages' and sought to demand contribution in terms of Section 6 of the Act on that basis, while the Petitioner had contended before him that remuneration for 'additional hours' of work paid to the employees fell in the category of 'overtime allowance' by virtue of the expression 'any other similar allowance payable to the employee in respect of his employment or of work done in such employment' occurring in Sub -clause (ii) of Clause (b) of Section 2 of the Act.;