Judgment :- Dilip B. Bhosale J. 1. These writ appeals are directed against the common order dated 7.3.2012 passed by learned Single Judge in a group of 12 writ petitions, filed by the Regional Provident Fund Commissioner, whereby all the petitions were allowed and the orders dated 25.8.2011 passed by the Employees’ Provident Fund Appellate Tribunal (for short ‘Tribunal’) came to be set aside. 2. The Tribunal, vide orders dated 25.8.2011 had set aside the order passed by the Provident Fund Authority (for short ‘P.F. Authority’) under Section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (for short ‘the Act’) whereby, the appellants-Employers were directed to remit the dues of their contribution towards the provident fund of their employees. 3. The background facts, in brief, leading to these appeals are as follows: The appellant-establishments are covered under the Act w.e.f. 26.4.1997. The addressed a letter dated 22.7.2008 to the P.F. Authority stating that in the light of the Judgment of the Supreme Court in MANIPAL ACADEMY OF HIGHER EDUCATION v. PROVIDENT FUND COMMISSIONER – (2008) 5 SCC 428 the basic wages do not include the amounts paid for leave encashment, and therefore, requested to adjust their contribution made, during the period from 2005 to 2008, taking into account the amounts paid for leave encashment, towards future liability. In reply to the said letter the P.F. Authority vide their letter dated 6.8.2008 informed the appellants that to adjust the contribution made, taking into account leave encashment, was possible only in case of those employees whose accounts are not finally settled and who are still in the employment against their future dues. The P.F. Authority also asked them to file revised monthly/annual returns for the relevant period of such employees. Thereafter, the Enforcement Officer during his visit to the establishment found that the employees share of contribution for the month of June and July, 2008 had been adjusted towards leave encashment already remitted by the appellants, contrary to the direction issued by the P.F. Authority vide letter dated 6.8.2008. Since the appellants failed to follow the instructions, an enquiry under section 7A of the Act was initiated. 4. In view of the Judgment of the Supreme Court in MANIPAL the appellants on their own had started adjusting the payments/contributions made by them taking into consideration the leave encashment as a part of basic wages for future liability. Since the appellants failed to follow the instructions, an enquiry under section 7A of the Act was initiated. 4. In view of the Judgment of the Supreme Court in MANIPAL the appellants on their own had started adjusting the payments/contributions made by them taking into consideration the leave encashment as a part of basic wages for future liability. Before initiating the inquiry, a show cause notices to the appellants were issued on 17.2.2010. The appellants in response to the show cause notice forwarded demand draft of Rs.5,000/- as penalty. The matter was thereafter heard by the P.F. Authority. The P.F. Authority vide its Judgment and Order dated 30.11.2010 held that in view of the Judgment of the Supreme Court in MANIPAL, the adjustment of the contribution received for leave encashment is permissible only in case of the employees whose accounts are still running or who are still in service. The operative portion of the order dated 30.11.2010 reads thus: “I, THULASI RAJA, Regional Provident Fund Commissioner-1, RO, PEENYA, Bangalore 560 058, in exercise of the owner, conferred on me under Section 7A of the Act assess the dues in respect of M/s. J.D. CLOTHING COMPANY, NO.9, RAJAJINAGAR INDUSTRIAL ESTATE, BANGALORE 560010 (KN/19920) for the period from June 08 & Jul 08 as in the statement above. (TABLE III). I hereby direct the employer of the establishment in respect of the above said establishment to remit the amount of Rs.7,69,616/- (Rupees Seven Lakhs Sixty Nine Thousand Six Hundred Sixteen only) to the respective heads of accounts in the State Bank of India within 15 days of receipt of this proceedings and forward the challans in support thereof along with the respective statutory returns, if not already sent. Any failure to comply as aforesaid will entail recover of this amount as arrears in the manner specified under Section 8B to 8G of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and prosecution under section 14/14A of the Employees Provident Fund and Miscellaneous Provisions Act 1952. Therefore, the 7A inquiry initiated against the establishment is concluded. However, the employer is liable to pay the interest under section 7Q & penal damages under section 14B of the Act on belated remittances. Moreover the undersigned Authority reserves the right to assess any escaped amount that may come to be known later, under section 7C of the Act." 5. Therefore, the 7A inquiry initiated against the establishment is concluded. However, the employer is liable to pay the interest under section 7Q & penal damages under section 14B of the Act on belated remittances. Moreover the undersigned Authority reserves the right to assess any escaped amount that may come to be known later, under section 7C of the Act." 5. Feeling aggrieved and dissatisfied with the orders passed by the P.F. Authority, the appellants preferred appeals before the Employees Provident Fund Appellate Tribunal, New Delhi. The Tribunal after having considered the Judgment of the Supreme Court in MANIPAL allowed all the appeals vide orders dated 25th August, 2011. The Tribunal passed separate orders in 14 appeals. The orders passed in all the appeals before the Tribunal were called in question in 12 writ petitions filed by the Regional Provident Fund Commissioner, Sub-Regional Office, Bangalore. The 12 writ petitions from which these appeals arise were placed before the learned single Judge (Aravind Kumar J.) who vide his order dated 7th March, 2012, allowed all the petitions. Feeling aggrieved at the order passed by the learned Single Judge dated 7th March, 2012, in the group of 12 petitions, the appellants have filed these appeals. 6. We have heard the learned counsel for the parties for some time and with their assistance gone through the entire record and the judgment of the Supreme Court in MANIPAL. Mr. S.N. Murthy, learned senior counsel appearing for the appellants-Employers submitted that as held by the Supreme Court in MANIPAL, if any payment is already made towards the contribution of the employer taking the leave encashment amount as a part of the basic wages, it should be adjusted against the future liability. He submitted that the Supreme Court did not order refund of the amount collected without Authority of law, and opined that the fund is a running one and the employer should adjust such amounts against future liability. He submitted that despite the judgment of the Supreme Court, the respondent has wrongly held that such adjustment will be made only in respect of the employees who are still in service. He submitted that despite the judgment of the Supreme Court, the respondent has wrongly held that such adjustment will be made only in respect of the employees who are still in service. He then invited our attention to the interim order passed by the Supreme Court in MANIPAL dated 13-09-2004 and submitted that even in the present case, the Provident Fund authorities while settling the accounts of employees who retired prior to the judgment of the Supreme Court, ought to have taken an undertaking from them in terms of the said interim order passed by the Supreme Court. The interim order passed by the Supreme Court in MANIPAL reads thus: “Having heard learned counsel for the parties, we do not think that any case has been made out to stay the operation of the impugned judgment. We, however, direct that before disbursal of the provident fund to the employees to the extent of the leave encashment, the Provident Fund Commissioner shall take, from each employee, an undertaking that in the event of the appeal being decided in favour of the employer, the employee would return the share in respect of leave encashment contributed by the employer. On the basis of such undertaking, in the eventuality of the success of the appeal, it would be open to the appellant to recover that amount from the employees.” 7. Before we proceed further, it would be advantageous to see the law laid down by the Supreme Court in MANIPAL. The question that was under consideration before the Supreme Court in MANIPAL was whether the amount received by encashing the earned leave is a part of “basic wage” under of the Act requiring pro-rata employees contribution. The Supreme Court after considering the relevant provisions and the different judgments referred to therein in paragraphs 12 and 14 of the judgment observed thus: "12. The term “basic wage, which includes all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in accordance with the terms of the contract of employment can only mean weekly holidays, national holidays and festival holidays, etc. In many cases the employees do not take leave and encash it at the time of retirement or same is encashed after his death which can be said to be uncertainties and contingencies. In many cases the employees do not take leave and encash it at the time of retirement or same is encashed after his death which can be said to be uncertainties and contingencies. Though provisions have been made for the employer for such contingencies unless the contingency of encashing the leave is there, the question of actual payment to the workman does not take place. In view of the decision of this Court in BRIDGE & ROOFS case and TI CYCLES case the inevitable conclusion is that basic wage was never intended to include amounts received for leave encashment. 14. The appeals deserve to be allowed which we direct. But if any payment has already been made it can be adjusted for future liabilities and there shall not be any ref und claim since the fund is a running one. There will be no order as to costs." 8. The Supreme Court in BRIDGE & ROOFS CO. LTD. v. UNION OF INDIA – AIR 1963 SC 1474 while dealing with the provisions contained in clause (ii) of section 2(b), considered as to why “dearness allowance” was excluded from the definition of “basic wages” and its inclusion in section 6 of the Act. From bare perusal of clause (ii) of section 2(b) it is clear from the definition of the word “basic wages” certain earnings were excluded, though the must be earned by employees in accordance with the terms of the contract of employment. Though “dearness allowance” ws excluded from the definition of basic wages, section 6 provides for inclusion of dearness allowance for purposes of contribution. But that is clearly the result of the specific provisions in section 6. The Supreme Court, therefore, in BRIDGE & ROOFS had a close look at the provisions contained in clause (2) of section 2(b) and section 6 of the Act and noticed that dearness allowance is payable in all concerns either as an addition to basic wages or as a part of consolidated wages, where a concern does not have separate dearness allowance and basic wages. Similarly, retaining allowance is payable to all permanent employees in all seasonal factories and is therefore, included in section 6. Similarly, retaining allowance is payable to all permanent employees in all seasonal factories and is therefore, included in section 6. As against this, it was further noticed that House Rent Allowance is not paid in many concerns and some times in the same concern it is paid to some employees and not to others, for the theory is that House Rent is included in the payment of basic wages plus dearness allowance or consolidated wages. Therefore, House Rent Allowance which may not be payable to all employees of a concern and which is certainly not paid by all concerns, is taken out of the definition of “Basic Wages”, even though the basis of payment of House Rent Allowance where it is paid is a contract of employment. Then the Supreme Court in BRIDGE & ROOFS made reference to overtime allowance and observed that though it is generally in force in all concerns is not earned by all employees of a concern. It is also earned in accordance with the terms of the contract of employment, but because it may not be earned by all employees of a concern, it is excluded from basic wages. Thus, it is clear that the basis for the exclusion in clause (ii) of the exception to section 2 (b) is that all that is not earned in all concerns or by all employees of a concern is excluded from basic wages. 9. In the present case, we are concerned with the amount received by the employees for leave encashment. The amount for leave encashment is generally paid to only those employees who do not take leave and encash it at the time of retirement or same is encashed after his death which can be said to be uncertainties and contingencies. In other words, it cannot be said that every employee earns this amount during his employment or every employee may not earn this amount by not taking leave which he is entitled for. Thus, the expression “Basic wages” as defined in section 2(b), shall not mean and include the amount received for leave encashment. Therefore, if any contribution is made by the employer by reckoning, as basic wages, the leave encashment amount, he is entitled to seek its adjustment while making contribution towards Provident Fund. Thus, the expression “Basic wages” as defined in section 2(b), shall not mean and include the amount received for leave encashment. Therefore, if any contribution is made by the employer by reckoning, as basic wages, the leave encashment amount, he is entitled to seek its adjustment while making contribution towards Provident Fund. In other words, if any such contribution was made, either due to ignorance of law or before the Judgment of the Supreme Court in MANIPAL, it can be adjusted for future liabilities, but there shall not be any refund claimed since the fund is running one. 10. There is no dispute that in the present case, the appellant-employers while making their contributions towards provident fund as contemplated by Section 6 of the Act, during the period from 2005-2008, took into consideration the amount of leave encashment as a part of basic wages in case of the employees who earned it by not taking leave, which the were entitled for. In view thereof, the appellants sought adjustment of the said amount in the light of the judgment of the Supreme Court in MANIPAL. 11. Having regard to the admitted facts and considering the submissions advanced by the learned counsel for the parties, the question that falls for our consideration is whether the appellants-employers, in of the judgment of the Supreme Court in MANIPAL, are entitled to seek adjustment, towards future liability, of the contribution made by them during 2005-2008 by reckoning, as basic wage, the leave encashment amount even in respect of the employees who left the job/service and, who while leaving got their PF accounts finally settled. In other words, whether the appellants can seek adjustment of the excess contribution/deposit made by them, by reckoning, as wages, the leave encashment amount, even in case of the employees who left the job/service and were paid by settling their accounts finally or whether the (appellants) are entitled to adjust such contribution (excess amounts) only in respect of the employees who are still in service and whose PF accounts are running. 12. 12. In the present case, there is no dispute with regard to the employees, who retired or left the job before the appellants sought adjustment in view of the MANIPAL judgment, that a contribution was made by the appellants-employers in respect thereof (such employees), by reckoning, as basic wages, the leave encashment amounts and that their PF accounts were settled finally and they were paid the PF amounts. In other words, there is no dispute that the excess amount was deposited by the appellants as their contribution by reckoning, as basic wages, the leave encashment amounts, in respect of the employees, who either retired or left the job, and have already been paid by settling their accounts final under paragraph 8(b) and 68(bb) of the EPF Scheme. 13. The contribution, which the appellants are seeking adjustment of, as per the Supreme Court judgment in MANIPAL, has already been parted with/made over to the employees who retired before such adjustment was sought by the appellants. In our opinion, if in case of such employees the Provident Fund Authorities are directed to adjust their contribution which has already been paid/parted with, that would result in double payment by the PF Authority. In short, if PF Authority is directed to adjust such contribution of the employer, made by them due to ignorance of law or before the judgment in MANIPAL, that would amount to penalizing the PF Authority for no fault of theirs. Moreover, the provident fund accounts of the employees who have left the job cannot be said to be running one since they are no more in the employment and their accounts have final been settled. As a matter of fact, from the observations made by the Supreme Court in paragraph 14 of the judgment (MANIPAL), it is clear that adjustment is possible only in case of the employees who are in service or continued to be in service and whose accounts are running and not of the employees who have retired and taken their amounts of provident fund by way of final settlement. The judgment of the Supreme Court directly does not deal with the situation, as has fallen for our consideration. The judgment of the Supreme Court directly does not deal with the situation, as has fallen for our consideration. Thus, from the observations in the paragraphs quoted above, it is clear that the adjustment, as sought in the present case, can be made only in respect of the employees who are still in service or whose accounts are still not finalized and are paid by the PF Authority. 14. Insofar as the interim order that was passed by the Supreme Court in MANIPAL is concerned, that ultimately merged in the final judgment of the Supreme Court in said case. In any case, the interim order passed therein cannot be relied upon for seeking any relief in the instant proceedings by the appellants-Employers at this stage. Moreover the submission of learned senior counsel for the appellants based on the observations in MANIPAL that reference to “running fund/account” made therein was only to the running fund between the Employer and the Provident Fund Authority also deserves to be rejected outright. In our opinion, it means the running fund/account of the Employer and PF Authority in respect of each of its employees, who are still in service and whose accounts are running and not settled finally. The expression “running fund” in paragraph 14 of the judgment in MANIPAL cannot be stated to be only between the Employer and the PF Authority and, in our opinion, that has to be understood to mean the “running fund” with reference to the employees in service. The account of the employee stands closed when he goes out of employment after settling and receiving his dues finally. 15. In the result, the writ appeals fail and dismissed as such. No costs.