The main legal point established in the judgment is the application of retrospective operation of statutes and the principles governing the effect of amendments on existing rights, emphasizing the need for express intention or necessary implication to affect existing rights.

ARIJIT PASAYAT, J.

( 1 ) CHALLENGE in this appeal is to the judgment rendered by a division Bench of the Rajasthan High Court at Jodhpur dismissing the Special Appeal filed by the appellant. Challenge in the Special appeal was to the judgment of a learned Single Judge whereby the writ petition filed by the appellant was dismissed upholding the decision of the regional Provident Fund Commissioner (in short the 'commissioner' ). It was held that Section 16 (1) (d) of the employees Provident Funds Act, 1952 (hereinafter referred to as the 'act') was omitted from the statute by Act No. 10 of 1998 with retrospective effect i. e. from 22. 9. 1997. In other words, it was held that the infancy protection shall not be available to the appellant factory after 22. 9. 1997.

( 2 ) THE factual scenario lies into a very narrow compass. Appellant started production on 1. 9. 1995 and according to it, it was entitled to benefit under Section 16 (1) (d) of the Act from that day. From August, 1998 appellant started to comply with the provisions of the Act as the three year fledging period as envisaged under Section 16 (1) (d) of the Act came to an end. On 26. 3. 1999 enquiry under Section 7a of the Act was initiated to secure the compliance of the Act from September, 1995 to July, 1998. By order dated 27. 7. 2000 the commissioner recorded a specific finding that the company was a new unit and was eligible for exemption under Section 16 (1) (d) of the Act but since it was effaced from the statue from 22. 9. 1997 the benefit was available till that date and not thereafter. The writ petition filed was dismissed by the learned single Judge, so was the special appeal.

( 3 ) IN support of the appeal learned counsel for the appellant submitted that the view of the High Court is untenable and even if retrospective effect was given the same was to not in any way affect the entitlement of the appellant.

( 4 ) LEARNED counsel from the respondent on the other hand supported the orders of the Commissioner and the High Court.

( 5 ) THE position of Section 16 at different points of time can be noticed. Section 16 as originally enacted read as follows:

"16. Act not to apply to factories belonging to government or local authority and also to infant factories. This Act shall not apply to- (a) any factory belonging to the government or a local authority, and (b) any other factory established whether before or after the commencement, of this Act unless three years have elapsed from its establishment.

( 6 ) SECTION 16 was amended by the Employees' Provident funds (Amendment) Act, 1958 and sub-section (1) of Section 16 of the Principal Act was substituted as under:

" (1) This Act shall not apply to any establishment until the expiry of three years 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".

( 7 ) SECTION 16 (1) was once again amended by the Employees' provident Funds (Amendment) Act, 1960 and sub-section (1) of section 16 was substituted as under:

" (1) This Act shall not apply: (a) to any establishment registered under the Co-operative Societies Act, 1912, or under any other law for the time being in force in any State relating to Co-operative Societies, employing less than fifty persons and working without the aid of power; or (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".

( 8 ) SECTION 16 was further amended by the Employees' provident Funds and Miscellaneous (Amendment) Act, 1988 wi