A. Banerji, J. - (1.) A short question in this petition is whether the petitioner is entitled to the benefit of the provisions of Sec. 16(1) (b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter referred to as the Act. The petitioner's case was that its establishment was a new establishment set up in May 1969 and was as such exempt from the provisions of the Act for a period of five years. The Regional Provident Fund Commissioner, respondent no. 1, has held that it was not a new establishment, but there was only a change of ownership. The business of servicing automobiles and allied work was being carried on in the same premises earlier also and the same business was being continued by a new set of persons from May, 1969. The Regional Provident Fund Commissioner has determined a sum of Rs. 40, 517.00 payable by the petitioner as employers' and employees' share of Provident Fund contributions including Family Pension Fund contributions for the period May 1969 to June 1974 and a further sum of Rs. 1215.50 as administrative charges for the same period. A direction was also issued by the order dated 4th October, 1974 to deposit the aforesaid amount in the State Bank of India within 15 days of the receipt of the order. It is against the above order that the present writ petition has been filed.
(2.) HAVING heard the learned counsel for the parties, we are satisfied that no case has been made out for interference with the order of respondent no. 1, dated 4th October, 1974. We are further of the opinion that the provisions of Sec. 16 (1) (b) of the Act would not be applicable to the case of the petitioner. Our reasons are as follows. The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 is an Act to provide for the institution of provident funds for the employees in factories and other establishments. Sub-sec. (3) of Sec. 1 of the Act makes it clear that the provisions of the Act are applicable to an establishment employing twenty or more persons subject to the provisions of Sec. 16 of the Act. Sec. 16 (1) (b) is relevant and reads as follows : "16. Act not to app[y to certain establishments-(i) This Act shall not apply- (a) ................................. (b) to any other establishment employing fifty, or more persons or twenty or more, but less than fifty persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been, set up. Explanation-For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location." It is evident from the above that an establishment employing more than twenty but less than fifty persons will be exempt from the provisions of the Act for a period of five years from the date of its being set up. The Explanation uses the phrase 'newly set up'. It is significant that where an establishment has been newly set up, the provisions of the Act would not apply for a period of three or five years depending on the number of persons employed. The phrase 'newly set up' connotes the period of infancy of the establishment. If it is new establishment coming into operarion for the first time, it would be entitled to claim the benefit of Sec. 16 (1) (b) of the Act. Sometimes an establishment is transferred to another location or premises, but then in view of the Explanation it would not be treated to be a newly set up establishment and consequently the exemption as provided under Sec. 16 (1) (b) of the Act would not be available. The question in the present case is slightly different. Here there was a change in the ownership and management. The petitioner is a partnership concern. It has taken over the building, machinery and the land for the purpose of running the business viz. servicing and repairs of motor vehicles etc. It is admitted that previoulsy M/s. Auto Sales Service Station, Allahabad was running a similar business in the same premises and there were certain proceedings before the Regional Provident Fund Commissioner. It appears that in May 1969 the business was being run by Sri Chandra Mohan Gupta as sole proprietary business but later on it was converted into a partnership with Sri Jag Mohan Gupta and Sri Anil Gupta. Subsequently, the firm was re-constituted and Sri Jag Mohan Gupta retired from the partnership and Sri T. N. Agarwal and Smt. Shyam Lata joined the partnership. According to the petitioner the partnership was again constituted on 1st August, 1972 and its partners were Sri Chandra Mohan Gupta and Smt. Shyam Lata with two minors admitted to the benefits of the partnership. However, the business carried on throughout all these changes remained the same. It was carried on in the same premises with the same machinery etc. The question that then comes up is whether the establishment is newly set up establishment or is an old one which has undergone changes in ownership and management. Under the circumstances stated above, it could not be termed to be a newly set up establishment. The provisions of Sec. 16 (1) (b) of the Act would apply only to a newly set up establishment i. e. an establishment which has all the ingredients of having been started from scratch. It is only then that it can be said that the establishment was in its infancy and needed protection. Such is not the state of affairs in the present case.
(3.) REFERENCE may be made to the case of P. F. Inspector v. N. S. S. Cooperative Society, AIR 1971 SC 82, where their lordships held that the benefit of non-applicability of Sec. 16 (1) (b) of the Act would be given to the establishment, as it was a new establishment. In that case it was found that the business of the Press had been sold. The work in the Press was stopped on sale and was re-started after a break of about three months, the machinery in the Press was altered and the persons previously employed were not continued in service and among the new recruits were six previous employees and compensation had been paid to the workmen by the previous owner at the time of sale. In the present case, the facts show that the premises, machinery and the equipments all remained the same. Some of the old employees also continued and there was no perceptible break in the continuance of the business. The Supreme Court case is, therefore, distinguishable on facts. In the case of V. Transports (Pvt.) Ltd. v. Regional Provident Fund Commissioner, AIR 1965 Madras 466, it was held that the period of protection of three or five years, as the case may be, is to be computed not from the date on which any establishment is brought within the scope of the Act but from the date on which the establishment is or has been set up'. The introduction of an incorporate personality in 1960 did not therefore have any effect upon the continued existence of the establishment. In another case Sahni and Co. v. Union of India, AIR 1964 Mad. 451 a question arose where the owner of an establishment, a cinema theatre, did not run it himself but leased it out from time to time, and one of such lessees raised a plea that he was entitled to the benefit of Sec. 16 of the Act from the date when he took over the lease. The contention was rejected on the ground that the date on which the establishment had been set up could not be interpreted by reference to any leases that might have been granted from time to time. Both cases show that the establishments were in existence and were not new establishments. These decisions support the view that we take.;