JUDGMENT : S.K. Mishra, J. - Heard learned Counsel for the petitioner and learned counsel appearing for the opposite parties. The subtle question which requires adjudication in this case is whether the payments made by an employer in compliance with the section 17B of the Industrial Disputes Act, 1947, hereinafter referred to as the I.D. Act' for brevity, is subject to the Employees' Provident Funds Scheme, 1952, hereinafter referred to as the Scheme' for brevity and if the employer is required to deposit the contributions as provided in Paragraph-29 of the Scheme towards employees' provident funds. 2. The facts of the case are not in dispute. The opposite party No. 2 was a workman of the petitioner-company. On the allegation that he has Indulged In several misconduct, a domestic enquiry was initiated against him. He was found guilty of the charges alleged. Therefore, his services were terminated. Thereafter, he raised an industrial dispute, which was referred to the Labour Court and was registered as I.D. Case No. 55 of 1996. It was disposed of on 4.1.2007 holding that the dismissal of the workman was Illegal and unjustified. Further, directions were given to the employer to re-Instate him in service with full back-wages. Such order was assailed before this Court in a writ petition No. 6179 of 2007, In an Interim order, this Court on 16.5.2007 ordered for stay of operation of the award passed by the Labour Court, subject to compliance of section 17B of the I.D. Act The workman is, therefore, being paid the last wages drawn by him. The workman filed an application before the Regional Provident Fund Commissioner, Orissa, Bhubaneswar under Paragraph 26-B of the Scheme to decide whether the wages, i.e. being paid to him u/s 17B of the I.D. Act should also be accompanied by a contribution towards E.P.F. of the employee. 3. Paragraph 29 of the Scheme provides that the contribution payable by the employer under the Scheme shall be @ 10% of the basic wages, dearness allowance (including cash value of any food concession) and retaining allowance (if any) payable to each employee to whom the Scheme applies. 3. Paragraph 29 of the Scheme provides that the contribution payable by the employer under the Scheme shall be @ 10% of the basic wages, dearness allowance (including cash value of any food concession) and retaining allowance (if any) payable to each employee to whom the Scheme applies. Provided that the aforesaid rate of contribution shall be 12% in respect of an establishment or class of establishments, which the Central Government may specify in the Official Gazette from time to time under the first proviso to sub-section (1) of section 6 of the Act. Sub-section (2) provides for the contribution payable by the employee, which is not relevant In this case. Sub-section (3) provides that contribution shall be calculated on the basis of basic wages, dearness allowance (including cash value of any food concession) and retaining allowance actually drawn during whole month whether paid on daily, weekly, fortnightly or monthly basis. Section 2(b) of the Act defines basic wages. It reads as follows: 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 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; 4. Thus, it Is clear that basic wages on which contribution is to be calculated, Is all emoluments, which is earned by an employee while on duty, leave or on holidays. The emphasis is on the expression that all employments which are earned by an employee. Any payment made u/s 17B of the Act is not actually wages earned. Payment made u/s 17B of the I.D. Act is in nature of subsistence allowance given to the workman, who has been ordered to be reinstated In service by the Labour Court and the award passed by the Labour Court is assailed In any higher Court. Any payment made u/s 17B of the Act is not actually wages earned. Payment made u/s 17B of the I.D. Act is in nature of subsistence allowance given to the workman, who has been ordered to be reinstated In service by the Labour Court and the award passed by the Labour Court is assailed In any higher Court. Furthermore, It appears that this provision has been inserted to ensure that the workman Is not unnecessarily harassed by a protracted litigation and that his basic needs are taken care of. The quantity specified to be the last wages drawn is only to avoid confusion regarding the exact amount to be paid to such an employee. 5. A similar type of question arose before the High Court of Gujarat in Swastik Textile Engineers Private Ltd. v. Virjibhai Mavjibhai Rathod and another. 1991 (116) FLR 1002 (Guj). The Gujarat High Court held that when a Labour Court awards back-wages for the period the employee was kept away from duty, the Court is, in fact, awarding damages assessed in terms of whole or part of the wages, would have earned had he continued in service without interruption. Therefore, the Court ruled that the amount of damages or compensation awarded by the Court would not constitute the basic-wages as envisaged in the Act. 6. It is not disputed that the employee was dismissed. The Labour Court by its award directed his reinstatement but the operation of the award has been stayed. So, at present, the status of the workman is that of a dismissed employee, and therefore, he cannot be said to have earned the wages, which is being paid to him u/s 17B of the I.D. Act. In that view of the matter, the conclusion arrived at by the Regional Provident Fund Commissioner, Orissa, Bhubaneswar in the proceeding under Paragraph 26B of the Scheme, 1952 on 24.8.2010 Is erroneous, and therefore, the same is quashed. The writ application is accordingly allowed. Final Result : Allowed