IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 13615 of 2026 G4S Secure Solutions (India) Pvt. Ltd. Vs Union of India & Ors. For the Petitioner : Mr. Soumya Majumder, ld. Sr. Adv. Ms. Mayuri Ghosh, Ms. Samarpita Mukherjee. For the P.F. Authority : Mr. Shiv Chandra Prasad. Judgment reserved on : 10.09.2026 Judgment delivered on : 14.09.2026 Shampa Dutt (Paul), J.: 1. Affidavit-of-service filed be kept with the record. 2. The writ application has been preferred challenging the proceeding before the respondent/PF Authorities bearing no. R- NE/WB/33419/CC III/989 dated 16.12.2003 issued by the Regional Provident Fund Commissioner, EPFO, Regional Office, Kolkata, under Section 7A of the Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 to the Kolkata Establishment of the petitioner, having Establishment Code : WB/33419 for 2 conducting an inquiry for an indefinite period i.e. from June, 1996 onwards (as per the period mentioned in the impugned summons) and the proceedings held under the impugned summons till 11.03.2025 vide Diary No.395/2017 as well as the final order passed dated 30.04.2026 communicated vide email dated 14.05.2026 passed by the respondent no. 2, the Regional Provident Fund Commissioner II (C & R). 3. Vide the said order the respondent no. 2 held that the proceedings before it was maintainable, on the findings that:- “…………..Employer wants to establish the exclusion clause of Section 2(b) of EPF & MP Act, 1952 and Section 4 of Minimum wage Act, 1948 but failed to establish the exact definition of basic wage which includes 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. This 7A court is of the view that whatever is payable in all concerns and is earned by all employees is inclusive for the purpose of basic wage. Any variable earning which may vary from individual to individual according to their efficiency and diligence will stand excluded from the term basic wage. This point is well Judged by the Hon'ble Supreme Court of India in Bridge 3 & Roof Company Ltd. Vs Union of India and Hon'ble in the case of RPFC-11 WB vs Vivekananda Vidyamandir. In the instant case, employee failed to establish that allowances in question being paid to its employees were either variable or were not paid to all employees. Further from Enforcement Officer report, it is clear that there is no uniformity in salary structure adopted by the establishment. Establishment has camouflaged the salary structure in such a way to avoid deduction and contribution. It is clear case of subterfuge of wages to avoid contribution by employer to provident fund. NOW, therefore, considering the fact of the case, I, Subroto Biswas, Regional Provident Fund Commissioner- II, Regional Office, Kolkata, West Bengal in compliance with the order of the Hon'ble High Court, Calcutta fixed this case to be maintainable under Section 7A of the EPF Act, 1952. ISSUED UNDER MY HAND AND SEAL ON 30th DAY OF April 2026. Sd/- REGIONAL PROVIDENT FUND COMMISSIONER-II EPFO, RO, KOLKATA” 4. Mr. Majumder, learned senior counsel appearing for the petitioner submits that the impugned order with the finding that the proceedings under Section 7A of the EPF Act before the authority 4 concerned is maintainable, has been challenged by the petitioner herein. 5. Mr. Majumder, has relied upon the judgment of the Supreme Court passed in Civil Appeal No.9284 of 2013, dated August 17, 2023, in Assistant Provident Fund Commissioner vs M/s. G4S Security Services (India) Ltd. & Anr., wherein the said appeal was preferred by the Assistant Provident Fund Commissioner, against an establishment of the petitioner company. The Hon’ble Court was hearing an appeal from a judgment dated 20th July, 2011 passed by the High Court of Punjab & Haryana at Chandigarh in an intra-court appeal, which was directed against an order dated 1st February, 2011 passed by the Single Judge. 6. The stand of the appellant (PF authorities) before the Supreme Court in appeal was that for the purposes of determining its contribution towards provident fund, the respondent no. 1 was wrongly splitting the wage structure of the employees and treating the reduced wage as the basic wage to the detriment of the employees, thereby evading its liability to contribute the correct amount towards provident fund. 7. The stand of the appellant (PF authorities) was turned down by the appellate Tribunal, the learned Single Judge and the Division of the High Court. 8. The Supreme Court finally decided the issue as follows:- 5 “1. The appellant-Assistant Provident Fund Commissioner is aggrieved by the judgment dated 20th July, 2011, passed by the High Court of Punjab and Haryana at Chandigarh, in an intra-Court Appeal1, which was directed against the order dated 01st February, 2011, passed by the learned Single Judge, dismissing the Writ Petition2 filed by the appellant. 2. Before the learned Single Judge, the appellant had impugned the order dated 15th June, 2009, passed by the Appellate Tribunal under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 19523, while determining the issue raised by the respondents regarding the liability of the Management under the provisions of Section 7A of the EPF Act. The stand of the appellant is that for the purposes of determining its contribution towards provident fund, the respondent no.1 was 3 Hereinafter referred as „EPF Act‟ C.A. No. 9284 OF 2013 wrongly splitting the wage structure of the employees and treating the reduced wage as the basic wage to the detriment of the employees, thereby evading its liability to contribute the correct amount towards provident fund. The aforesaid stand taken by the appellant has been turned down by the Appellate Tribunal as also by the learned Single Judge and the Division Bench of the High Court. 3. Mr. Vikramjeet Banerjee, learned Additional Solicitor General submits that for the purposes of determining the basic wage under the EPF Act, reference must be made to the definition of the expression „minimum rate of wages‟ under Section 4 of the Minimum Wages Act, 1948. This aspect has been considered in paragraph 6 of the impugned judgment and turned down holding that there was no compulsion to hold the definition of „basic wage‟ to be equated with the definition of „minimum wage‟ under the Minimum Wages Act, 1948. 4. In our opinion, once the EPF Act contains a specific provision defining the words ‘basic wage’ (under Section 2b), then there was no occasion for the appellant to expect the Court to have travelled to the Minimum Wages Act, 1948, to give it a different connotation or an expansive one, as sought to be urged. Clearly, that was not the intention of the legislature. 5. It is also pertinent to note that a similar issue had come up for consideration in the order dated 23rd May, 6 2002, passed by the APFC under Section 7A of the EPF Act, that was C.A. No. 9284 OF 2013 duly accepted by the appellant department as the said order was not taken in appeal. 6. In view of the aforesaid observations, the present appeal is dismissed as meritless. There shall be no orders as to costs.” 9. It appears that the Hon’ble Court, while dismissing the appeal, took into consideration an order dated 23rd May, 2002, passed by the Assistant P.F. Commissioner under Section 7A of the EPF Act, which was duly accepted by the appellant department, as no appeal was preferred. Vide the said order dated 23rd May, 2002 under Section 7A of the EPF Act, the authority concerned being the Assistant Provident Fund Commissioner came to the following findings:- “I have carefully examined the submissions made by the employer‟s representatives and observed that the employer is not contesting the P.F. liability on Basic wages as provided under Section 6 of the Act, but he is contesting any liability on the amount shown as HRA and Other allowances. If these allowances are excluded and not included under Section 6 of the Act for determining P.F. contributions, then for any laudable reason Other Allowances cannot be considered for the purpose of calculating P.F. contributions. As a Statutory Authority of Limited Jurisdiction, I Rakesh, Assistant P.F. Commissioner, Sub-Regional Office, Gurgaon 7 cannot surpass the power conferred on me under the Employees' Provident Funds & Miscellaneous Provisions Act, 1952. It is, therefore, ordered that the employer is not liable to pay P.F. Contributions on HRA, Fixed Conveyance and Washing Allowances. Moreover, the P.F. dues for the notice period have been remitted. The proceedings are therefore closed. Sd/- RAKESH Assistant P.F. Commissioner” 10. Mr. Majumder, has further relied upon the judgments of other High Courts, wherein the judgment of the Supreme Court has been followed and the authority concerned in the order dated 23rd May, 2002 has also finally accepted the provision of law including the interpretation as made by various High Courts, relying upon the Supreme Court’s judgment in M/s. G4S Security Services (India) Ltd. & Anr., (Supra). 11. Heard Mr. Prasad, learned counsel appearing for the respondent/PF authorities, who on filing written notes submits that the impugned order is in accordance with law and supports the view taken by the authority. 12. Mr. Prasad further submits that, the concept of separate allowance like HRA, washing allowance etc, are consisting only within the prescribed salary scale and form a separate and distinct category from the salary scale. The employer cannot use it as subterfuge as to artificially spilt the minimum wage to avoid their legal obligation. If the employer has to pay HRA, it has to be 8 above the minimum wage and minimum wage cannot be splitted to show an element of HRA or for that matter may allowance. Any such concessions would be against recommendation of the National Commission of Labour, and various judgment of Hon'ble Supreme Court. Therefore, the minimum wages which has been split by the establishment shall not be allowed. 13. Mr. Prasad further submits that the findings of Hon'ble Court in the case of Smt. Raj Lakshmi Dassi Vs. Banamali Sen reported in AIR 1953 SC 33 has also been taken care of while deciding the applicability of Resjudicata in the instant 7A proceeding and after going through the findings of the Hon'ble Court, 7A authority is of the view that principal of Resjudicata would not apply in the instant case. Since, the issue of maintainability of the case has already been decided and the proceedings under Section 7A of the Act shall follow. 14. Mr. Prasad argues that the Hon'ble Supreme Court's order in Civil Appeal No. 9284 of 2013, Assistant Provident Fund Commissioner Vs. M/s. G4S Security Services (India) Ltd. and Anr. which has been decided on August 17, 2023 will not apply as Resjudicata to be followed in another case which has got no bearing with the said case mentioned (Supra). The Hon'ble Supreme Court has decided the issue in a particular case which cannot be created as a precedent. Here the case is related to Kolkata Region for the different periods and the said enquiry was continuing since 2008. Likewise the order passed by the Assistant 9 Provident Fund Commissioner, Sub-Regional Office, Gurgaon in the matter of M/s. Group 4 Securities Guarding Ltd. which has been decided on 23.05.2002 under Section 7A of the Act has no connection and/or bearing with the instant case. 15. It appears from the record that Mr. Prasad has argued exactly as noted by the authority in the order impugned. 16. Keeping in mind the submissions of both sides and the conduct of the respondent authority in view of the impugned order, this Court is of the view that the respondent/Provident Fund Authority in the present case, cannot in any manner whatsoever, disregard the order of the Supreme Court in Civil Appeal No. 9284 of 2013, M/s. G4S Security Services (India) Ltd. & Anr., dated August 17, 2023. But it appears that the impugned order dated 30.04.2026 received vide email dated 14.05.2026 by the petitioner herein has been passed in total disregard of the Hon’ble Supreme Court’s order dated August 17, 2023 in Civil Appeal No. 9284 of 2013. 17. It is thus held that the petitioner herein is not liable for the default period 06/96 to 03/2008 as claimed by the respondent/EPF Authority. As such the proceeding under Section 7A of the EPF & MP, 1952 before the Regional Provident Fund Commissioner-II, EPFO, RO, Kolkata, is not maintainable. 18. Thus the order impugned dated 30.04.2026, communicated vide email dated 14.05.2026, passed by the respondent no. 2, the Regional Provident Fund Commissioner II (C & R), being not in 10 accordance with law is quashed and set aside, in view of the judgment of the Hon’ble Apex Court dated 17th August, 2023. 19. WPA 13615 of 2026 is allowed. 20. Applications, if any, connected thereto stand disposed of consequently. 21. Interim order, if any, stands vacated. 22. Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Shampa Dutt (Paul), J.)