Bhaskar Bhattacharya, J. - (1.) THIS Mandamus-Appeal is at the instance of unsuccessful writ-petitioners and is directed against an order dated May 14/15, 2009, passed by a learned single Judge of this Court by which His Lordship dismissed the writ-application challenging the order dated February 28, 2007 passed by the Assistant Provident Fund Commissioner and the Assessing Authority, Employees' Provident Fund Organization. By the said order, it was held that the writ-petitioner No. 1 was not entitled to get the benefit of infancy as provided in section 16(l)(d) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act").
(2.) BEING dissatisfied, the writ-petitioners have come up with the present Mandamus-Appeal. The facts giving rise to filing of the writ-application out of which the present Mandamus-Appeal arises may be summarized thus: a) One Veegal Engines and Engineering Limited used to run a factory at 8, Jessore Road, Kolkata and produce petrol engines for agricultural spray, fishing boat, etc. and the provisions of the Act was applicable to it. b) The said establishment had undergone lockout and in the year 1986, it went into liquidation. By an order dated June 22, 1992, its assets were sold to one Gunny Dealers, which emerged as the highest bidder at the court-sale. In the said order, it was recorded that the State Government, the owner of the land, had at one point of time decided to take over the assets of the company as a going concern. However, subsequently the State government changed its decision and decided to lease out the land including the shed and structure erected thereon to the purchaser for a period to be decided by the Court provided the purchaser would protect the employment of the workers of the company by entering into a satisfactory agreement with the workers. The purchaser, it was agreed, would also not change the nature and character of the sheds or structures without its prior consent in writing. It was further recorded in the order that the agreement between the Gunney Dealers and the workers of the Veegal dated June 14, 1992 would form part of the order and the workers would be free to enforce the said agreement, if necessary. c) In the above agreement dated June 14, 1992, it was stipulated that the new promoters would be at liberty to diversify and change the existing line of manufacturing motor-machines-parts to jute based processing unit or any other type of manufacture at their sole discretion. It was further agreed that after renovating the existing factory building, the new promoters would install machinery for running the unit within six months and engage a maximum number of 150 of the workers of the Veegal. It was further provided in the said agreement that the workers would be given training before absorption in the service and that the statutory by the medical leave of the workers would be governed by the provisions of the Factories Act 1948 and E.S.I. Act, 1948 respectively. It was further specified that the employment of the workers under the new promoters would be deemed to be a new appointment without any continuity of service under the Veegal and the Veegal should be treated as closed and all closure benefit would be realized by the workers from the Official Liquidator. It was also agreed that the new promoters would have no past liability whatsoever for the services given by the Veegal's workers as such. d) Pursuant to the order dated June 22, 1992, State Government leased out the land and other properties to the Jessore Industries, the writ- petitioner No.1, as the nominee of Gunny Dealers. On July 1, 1993, Jessore Industries absorbed 150 workers of the Veegal and it started production with effect from December 6, 1993 by manufacturing spare parts for the jute machines and the plastic products. e) On March 18, 1994, the enforcement officers of the Provident Fund Organization visited the establishment and sought to apply the provisions of the Act from the resumption of production in the factory. f) The writ petitioner No. 1 raised objection dated April 12, 1992 thereby contending that in view of the provisions of section 16(1)(d) of the Act, it was entitled to the benefit of infancy as a newly setup establishment launched on July 1, 1993 when it started providing employment to the workers. g) The Provident Fund Organization did not accept the aforesaid contention of the writ-petitioner No. 1 and directed it to comply with the provisions of the Act with effect from July, 1993 as a going concern. Being aggrieved, the writ petitioners, in the past, moved another writ application before this Court. The said application was disposed of by a learned single Judge vide order dated June 6, 2006 by directing the Assistant Provident Fund Commissioner to treat the writ application as the representation of the writ-petitioners and to consider whether the establishment was entitled to the benefit mentioned under section 160(1)(d) of the Act. h) Pursuant to the said direction given by this Court, the order impugned in the writ-application, out of which the present mandamus appeal arises, has been passed by which the establishment has been held to be a continuing one not entitled to the above benefit. As indicated earlier, the learned single Judge, by the order impugned in this appeal, held that the establishment presently owned by the writ- petitioner No. 1 could not be held to be a new establishment, but was really the continuation of the earlier one.
(3.) BEING dissatisfied, the writ-petitioners have come up with the present appeal. Mr. Kar, the learned Advocate appearing on behalf of the appellant, has assiduously contended before us that the learned single Judge erred in law in refusing to give benefit of section 16(1)(d) of the Act by not following the well-accepted principles which are required to be applied before deciding whether an establishment is really a new one.;