- (1.) IN this writ petition filed under Article 226 of the Constitution of India, the only prayer which has been made is that the petitioner should be declared entitled to infancy benefit under Section 16 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, from March 1, 1977.
(2.) THE petitioner-company installed a factory at Parbatsar District Nagpur, for manufacturing synthetic clothes in March, 1977. A notice was issued to the petitioner that the factory established is engaged in a scheduled industry, viz. , textiles, under the Act of 1952, and has completed three years from the date of commencement of its production and that it has employed more than 50 employees and as such it was directed to implement the provisions of the Act and the Scheme framed thereunder with effect from March 1, 1980, as per Annexure 1. Subsequently, superseding the earlier letter dated September 16, 1980, another letter was issued on January 26, 1981, in which the petitioner-company was considered as a branch of M/s. Aditya Mills Ltd. , Madanganj, Kishangarh. A reply to this notice was sent and it was contended that the petitioner-company and Aditya Mills are two different and separate entities registered under the Companies Act, 1956, and the directors are also neither common nor interested persons and as such the petitioner-company cannot be considered to be a branch of Aditya Mills Ltd. The contention of the petitioner-company was not accepted and a notice dated December 21, 1981, was sent to the petitioner-company to attend the enquiry where again the objection was raised that the coverage could be only from March, 1980, and the establishment, prior to February 28, 1980 is entitled to infancy benefit. The respondents have placed reliance on the agreement dated November 19, 1976, with Aditya Mills Ltd. on the basis of which they considered the petitioner-company as a branch of the said company. The establishment of the petitioner was held to be covered under the Act from February 22, 1977, and the amount of Rs. 10, 188 was de termined under Section 7-A of the Act. A letter was written by the Regional Provident Fund Commissioner to the Central Provident Fund Commissioner, New Delhi, dated September 26, 1980, in which it was stated that M/s. Aditya Mills Ltd. was covered under the Code No. RJ/864 and has been supplying raw material, namely, synthetics blended yarn to M/s. Aditya Mills Pvt. Ltd for manufacturing of cloth on the powerlooms installed by the latter establishment on the terms and conditions enumerated in the agreement entered into between both the said establishments on November 19, 1976. It was stressed that from the agreement the establishment, Aditya Synthetics Pvt. Ltd. , was set up with the prior arrangement to manufacture cloth for Aditya Mills, a covered establishment, and the clothes so manufactured by it exclusively for Aditya Mills Ltd. and it could not manufacture cloth for any other establishment. A reply was sent by the Central Provident Fund Commissioner, vide letter dated December 31, 1980, to the Regional Provident Fund Commissioner in which the presumption that the petitioner-company is not entitled to infancy period, was upheld.
(3.) THE submission of learned counsel for the petitioner-company that in accordance with the provisions of Section 2-A of the Act, where an establishment consists of different departments or branches, whether situate in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. In the present case it is not a department or branch of any establishment and the different factories have been set up by the different companies and simply because one company is manufacturing the goods exclusively for another company, the benefit of infancy period cannot be denied. The provisions of Section 16 (1) (d) contemplate that the Act shall mot be applicable to any other establishment newly set up, until the expiry of a period of three years from the date on which such establishment is, or has been, set up. An Explanation has been given in the said clause" "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". In the present case, it is not denied that the petitioner has set up a new establishment.;