Impact of Supreme Court's recent ruling on 'basic wages' for computation of PF contributions

Terms of use

Terms of Use

The use of this site and the content contained therein is governed by the Terms of Use. When you use this site you acknowledge that you have read the Terms of Use and that you accept and will be bound by the terms hereof and such terms as may be modified from time to time.

All text, graphics, audio, design and other works on the site are the copyrighted works of nasscom unless otherwise indicated. All rights reserved.
Content on the site is for personal use only and may be downloaded provided the material is kept intact and there is no violation of the copyrights, trademarks, and other proprietary rights. Any alteration of the material or use of the material contained in the site for any other purpose is a violation of the copyright of nasscom and / or its affiliates or associates or of its third-party information providers. This material cannot be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way for non-personal use without obtaining the prior permission from nasscom.
The nasscom Members login is for the reference of only registered nasscom Member Companies.
nasscom reserves the right to modify the terms of use of any service without any liability. nasscom reserves the right to take all measures necessary to prevent access to any service or termination of service if the terms of use are not complied with or are contravened or there is any violation of copyright, trademark or other proprietary right.
From time to time nasscom may supplement these terms of use with additional terms pertaining to specific content (additional terms). Such additional terms are hereby incorporated by reference into these Terms of Use.

Disclaimer

The Company information provided on the nasscom web site is as per data collected by companies. nasscom is not liable on the authenticity of such data.
nasscom has exercised due diligence in checking the correctness and authenticity of the information contained in the site, but nasscom or any of its affiliates or associates or employees shall not be in any way responsible for any loss or damage that may arise to any person from any inadvertent error in the information contained in this site. The information from or through this site is provided "as is" and all warranties express or implied of any kind, regarding any matter pertaining to any service or channel, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and non-infringement are disclaimed. nasscom and its affiliates and associates shall not be liable, at any time, for any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communications line failure, theft or destruction or unauthorised access to, alteration of, or use of information contained on the site. No representations, warranties or guarantees whatsoever are made as to the accuracy, adequacy, reliability, completeness, suitability or applicability of the information to a particular situation.
nasscom or its affiliates or associates or its employees do not provide any judgments or warranty in respect of the authenticity or correctness of the content of other services or sites to which links are provided. A link to another service or site is not an endorsement of any products or services on such site or the site.
The content provided is for information purposes alone and does not substitute for specific advice whether investment, legal, taxation or otherwise. nasscom disclaims all liability for damages caused by use of content on the site.
All responsibility and liability for any damages caused by downloading of any data is disclaimed.
nasscom reserves the right to modify, suspend / cancel, or discontinue any or all sections, or service at any time without notice.

For any grievances under the Information Technology Act 2000, please get in touch with Grievance Officer, Mr. Anirban Mandal at data-query@nasscom.in.

New

See all

No notification found.

Impact of Supreme Court's recent ruling on 'basic wages' for computation of PF contributions

Ashish Aggarwal

@ashish.aggarwal

April 4, 2019

Public Policy

4394

The Hon’ble Supreme Court of India (“SC”) in its judgment dated February 28, 2019 has altered the long understood legal position relating to ‘basic wages’ for computing provident fund (“PF”) contributions under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”).[1]

NASSCOM understands that organisations across the country have been following the practice of excluding certain allowances from the basic wages for the purposes of computation of PF contributions. This has been in conformity with the broadly understood position of the law. While there was an attempt to clarify this matter by the Employees Provident Fund Organisation’s (“EPFO”), through its circular dated November 20, 2012 (“PF Circular”), this PF Circular was subsequently withdrawn vide another circular dated December 18, 2012. The withdrawal of the above circular, thus, consolidated the position that the practice of excluding certain allowances from the definition of basic wages was on a sound legal footing.[2]

Now, in light of the SC ruling:

Take home salary for employees could reduce significantly as their PF deductions would increase.
Employers’ financial burden could increase substantially as they could be required to pay their share as well as the employees’ share of the difference on the contribution for the past periods.[3] Moreover, the employers could be saddled with interest costs for delayed contributions.
To illustrate (refer illustration given below for the working):
- For a domestic worker with Rs 20,000/- pm CTC, the future monthly take home salary could reduce by 9.29% and the employer could face a cash outflow of nearly six times the monthly CTC for the arrears.
- For an International Worker (IW) with Rs. 200,000/- pm CTC, the future monthly take home salary could reduce by 7.01% and the employer could face cash outflow of nearly thirteen times the monthly CTC for the arrears.
Further, inclusion of additional allowances in the basic wage could result in the PF wages for domestic workers exceeding the statutory wage ceiling of INR 15,000. Questions arise on whether such employees can be excluded from the coverage of PF.
The ruling could also impact the liabilities of firms on account gratuity. The impact of the ruling would be across all the industries in India and it would severely affect the IT-BPM industry owing to factors including the size of the workforce and the fluidity of intra-industry employee migration. Moreover, a large number of IWs are employed by IT companies, and the wage limit for PF contribution is not applicable for them. Therefore, the impact in relation to them would be even more severe.
The IT-BPM sector is already facing stiff economic competition against other emerging economies which have adopted pro-industry policies and the SC judgement will increase the competitive pressure.
Giving effect to the ruling retrospectively might just not be practically possible given the movement of employees as it will require employers to track down even those employees (including IWs) and contract workers who may have resigned or retired from services and some of whom may have withdrawn their PF balances and closed their PF accounts.

A retrospective application would hurt industry’s competitiveness and ultimately impact the employment prospects negatively. There are also challenges around prospective implementation of the SC ruling due to ambiguity on which allowances may be excluded from the basic wages for the purpose of PF contributions.

Therefore, NASSCOM has requested the EPFO and the Ministry of Labour & Employment to:

Clarify through a circular that the current industry practices on the treatment of basis wages would not be treated as a ground for non-compliance and that the judgment would not be applied retrospectively.
Conduct a detailed study of the matter along with the industry to finalise the rules for the prospective applicability of the SC judgement so as to avoid possible gaps in interpretation in the future.
Provide a suitable transition period to allow the industry to implement the new rules.

It is important that the clarification mention in (1) above is issued at the earliest as firms would soon be finalising their books of accounts for the financial year 2018-19 and the auditors are already raising queries to the industry on the line of treatment being taken for the purposes crystalising the liability.

We are tracking the developments in relation to this issue.

Illustration of impact of SC ruing on scope of basic wages for the purpose of PF contribution

Case 1: Domestic Worker (assuming monthly CTC of Rs. 20,000)

Emoluments	Existing Scenario (A)	Revised Scenario (B)
Basic salary- 40% of CTC	8,000	8,000
HRA@40% of basic	3,200	3,200
Other allowances	7,840	7,000
ER contribution to PF*	960	1,800
Total monthly CTC	20,000	20,000
Take home salary	18,080	16,400
Reduction in employee’s take home pay (=1680/18080)	NA	1,680
Reduction in employee’s take home pay (=1680/18080)	NA	9.29%
Impact on employer for retro payment (55 months)**	NA	92,400
Interest on above	NA	24,925
Employer’s Cash outflow per employee	NA	1,17,325
Impact on employer’s Cash outflow per employee (times of monthly CTC)		5.87
Impact for 500 employees	NA	5,86,62,500
* 12% of Basic Wage in (A) and 12% of Basic Wage + Other allowances except HRA in (B) **The statutory wage ceiling under the PF Act was enhanced to Rs. 15000 pm effective 1 September 2014.

Case 2: International Worker (assuming monthly CTC of Rs. 200,000)

Emoluments	Existing Scenario (A)	Revised Scenario (B)
Basic salary- 40% of CTC	80,000	80,000
HRA@40% of basic	32,000	32,000
Other allowances	59,150	52,812
Reimbursement	19,250	19,250
ER contribution to PF*	9600	15,937
Total monthly CTC	2,00,000	2,00,000
Take home salary	1,80,800	1,68,126
Reduction in employee’s take home pay (=168126/180800)	NA	12,675
Reduction in employee’s take home pay (=168126/180800)	NA	7.01%
Impact on employer for retro payment (125 months)	NA	15,84,360
Interest on above	NA	9,82,295
Employer’s Cash outflow per employee	NA	25,66,655
Impact on employer’s Cash outflow per employee (times of monthly CTC)		12.83
Impact for 15 employees	NA	3,84,99,825
* 12% of Basic Wage in (A) and 12% of Basic Wage + Other allowances except HRA and Reimbursement in (B)

The illustrations above do not take into account past changes in wages in computation of impact as that would bring in too many assumptions. The purpose is only to highlight the broad impact.

[1] Regional Provident Fund Vs Vivekananda Vidyamandir and Others (Supreme Court of India), Civil Appeal No(s). 6221 of 2011, Date of Judgement : 28-02-2019, see: https://www.supremecourtofindia.nic.in/supremecourt/2008/2232/2232_2008_Judgement_28-Feb-2019.pdf

[2] As per the withdrawn PF Circular, all allowances which were ordinarily, necessarily, and uniformly being paid to employees were to be treated as part of the ‘basic wages’.

[3] The PF Act does not permit recovery of contributions from employees for past periods.

EPFO Labour basic wage provident fund

Disclaimer

That the contents of third-party articles/blogs published here on the website, and the interpretation of all information in the article/blogs such as data, maps, numbers, opinions etc. displayed in the article/blogs and views or the opinions expressed within the content are solely of the author's; and do not reflect the opinions and beliefs of NASSCOM or its affiliates in any manner. NASSCOM does not take any liability w.r.t. content in any manner and will not be liable in any manner whatsoever for any kind of liability arising out of any act, error or omission. The contents of third-party article/blogs published, are provided solely as convenience; and the presence of these articles/blogs should not, under any circumstances, be considered as an endorsement of the contents by NASSCOM in any manner; and if you chose to access these articles/blogs , you do so at your own risk.

Ashish Aggarwal

ashish.aggarwal

Call for Inputs: SEBI's consul...

Swapnil