K.B. Panda, J. - (1.)IN this application under Articles 226 and 227 of the Constitution, the Petitioner seeks to quash the order dated 6 -9 -1974 (Annexure 15) of the Regional Provident Fund Commissioner, Orissa, Bhubaneswar (hereinafter referred to as the Commissioner) rejecting the claim of the Petitioner for infancy period benefit as contemplated under Section 16 of the Employees Provident Funds (And Family Pension Fund) Act, 1952 (Act No. 19 of 1952), (hereinafter referred to as the Act). The admitted facts are thus:
One Sri Koovarji Karson Rathor, (hereinafter referred to as the lessor) was the owner of two mills situated within one premises near College Square, Town Cuttack under the name and style "Bhima Ice Factory and Flour Mills". The flour mill was established sometime in the year 1935. The Bhima Ice factory and Flour Mill made an application under Section 1(4) of the Act for coverage of the establishment under the Act and accordingly it was done by Government of India Notification No. SRO(PF/ 539(1)/54 -I -II (annexure 3). It would follow, therefore, that both the establishment, namely, Bhima Ice Factory as well as the Flour Mill were covered under the above Government notification and thus came under the Act. The Flour Mill section had been leased out to M/s. Rathor Brothers in 1956 and the said lease terminated in July, 1961. The Flour Mill remained closed from July, 1961 to January, 1964 when it was again leased out to the Petitioner -company under an agreement dated 15 -3.1964 for a period of one year on terms and conditions given in detail in annexure -1. This lease was renewed from time to time on terms and conditions as contained in the original lease till 20 -3 -1972. Thereafter he machineries existing is the Mill were obtained by the lessee -Petitioner from the lessor at a price of Rs. 81,000/ - under a sale deed dated 21 -3 -1972. The rent in respect of utilisation of the Flour Mill and the use of the machineries fitted, buildings, godown etc. was initially settled at Rs. 2500/ - per month in the original lease deed dated 15 -3 -1964 which was enhanced to Rs. 3500/ - per month with effect from 1 -1 -1965. This rent continued to hold good till the purchase by the lessee of the machineries etc. on 21 -3 -1972 whereafter the rent payable was scaled down to Rs. 2500/ - per month.

(2.)IT was contended on behalf of the Petitioner that the establishment, namely, the Flour Mill having come into existence with effect from 1 -1 -1964 and the strength of its employees never having touched 20 until 1969 -70, the liability for payment for contribution under the Act would arise only from 1969 -70 and not before that.
In the counter affidavit it is asserted that once the Act is made applicable to an establishment (as has been admitted in the instant case) irrespective of the units they may be having or they may have, it continues to be governed by the provisions of the Act. As long as there is homogeneity and integration in the nature of activities of the business carried on in a particular establishment, subsequent change in the ownership whether by transfer or partition makes no difference. It is also asserted in a new company or concern subsequently taken over or acquires the factory the date of establishment of the factory thereby does not change. Nor does it matter if the factory has ceased to produce goods for some time before acquisition and resumes production under a new name or style. Thus what is relevant is the date of establishment of the factory when the manufacturing process started. Regarding the assertion in the petition that after the Petitioner took lease of the buildings and some machineries, he made substantial renovations and additions thereto at a cost of more 2.5 lakhs, it is asserted in the counter affidavit that when the premises of the factory had not changed the date of establishment would be the date when that process initially started in 1935 and no change in the personality of the management would affect the date of establishment of the factory. Even assuming that the original flour Milling machineries were reconditioned and additional machineries were installed by the Petitioner, they do not alter the date of establishment of the factory. Even the stoppage or closure of the flour milling being temporary it cannot be said that the factory had ceased to exist. Hence the claim of the Petitioner under Section 16(1)(b) of the Act is resisted.

(3.)IT was contended on behalf of the Petitioner by Mr. S.B. Nanda that the Ice factory and the Flour Mill sections being in different buildings; that previously the lessor having leased out the Flour Mill to M/s. Rathor Brothers in 1956 which terminated in 1961; that the Flour Mill being defunct from July 1961 till January, 1964; that the Petitioner having added new machineries; and that the Petitioner having purchased the sick and old machineries subsequently at a cost of Rs. 81,000/ - and further the present Petitioner being in no way related to the lessor and having started the mill with separate factory licence, separate sales tax numbers and foodgrains licence, in the absence of functional integration between the Ice factory and the Flour mill, the Petitioner should be taken to be an absolute stranger who has started a new factory of its own and as such entitled to the benefits under Section 16 of the Act.