The establishment of a factory for the purposes of the Employees' Provident Funds Act, 1952, is not affected by a change of ownership, and the continuity of production is not necessarily broken by a break in production.

( 1 ) THE facts in this case are shortly as follows : Prior to December 1951, Messrs. Sisir Oil Industries Limited carried on business as manufacturer of vegetable oils and edible oils at its factory at Belghuria in the district of 24-Parganas. In or about February 1952, by an order of this Court in its company jurisdiction, the said company, namely Sisir Oil Industries Ltd. was ordered to be wound up by Court. In January 1952, a provisional Liquidator was appointed. Thereafter in April 1952 Official Liquidators were appointed and an order was made directing them to sell the assets and properties of Sisir Oil Industries Ltd. The Official Liquidators sold the factory and it has eventually been purchased by the petitioner company, which commenced manufacture from December 1953.

( 2 ) IN November 1956, the petitioner was asked to comply with the provisions of the Employees' Provident Funds Act (Act XIX of 1952) (hereinafter referred to as the 'act') and to pay its contribution to the employees' provident fund. The petitioner company took up the position that it was entitled to exemption under Section 16 of the said Act, being an infant industry. The Commissioner, under the said Act, however, rejected the contention, which has been upheld by the Central Government. This application has been made complaining against the order of the Commissioner, and is based upon the argument that the petitioner company is entitled to exemption under Section 16 of the Act as an infant industry, running a factory which had not been run for more than three years from its establishment.

( 3 ) THE petitioner company is of course making its calculations on the footing that the factory was established in 1953, when it commenced manufacture. If this point of time is accepted as the starting point, then of course the petitioner company would be entitled to exemption. The respondents are not willing to consider that as the starting point, but would add the period during which Sisir Oil Industries Ltd. carried on manufacture in the same factory.

( 4 ) THE position, therefore, is that the factory was in fact first established in 1951 and if it is calculated from that date, then there is no exemption. On the other hand, if the factory is taken to have been established from December 1953, when the petitioner company recommenced production, then in that case it would be entitled to exemption.

( 5 ) COMING to the provisions of the Act we find that Section 1 (3) provides as follows :"subject to the provisions contained in Section 16, it applies in the first instance to all factories engaged in any industry specified in Schedule I in which 50 or more persons are employed. . . . . . . . . . "

( 6 ) SECTION 2 (g) of the Act defines 'factory', and means any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power.

( 7 ) COMING now to Section 16 we find that the Act shall not apply to any 'factory', established whether before or after the commencement of the Act unless three years have elapsed from its establishment. It is, therefore, clear that for purposes of considering the exemption contained in Section 16 (b) we are not concerned with the owner of the factory but with the factory itself. The point for consideration is as to when such a 'factory' was established. A factory may from time to time change hands. The question is whether, each time the factory changes hands, it can be said that it was being newly established. In my opinion, no such argument is possible. It is apparent that the solution of this problem must depend on the facts of each case. A factory may be established and then it might change hands, and the person who acquires it may entirely dismantle it or take it elsewhere or remove the machinery and instal a completely new set of machinery or produce something else. Where the change or the