(1) The petitioners in this writ petition dated March 30, 2007 are questioning the decision of the Assistant Provident Fund Commissioner and Assessing Authority, Employees Provident Fund Organization, Sub-Regional Office, Barrackpore dated February 28,2007, Annexure P-11 at p.137 that Jessore Industries, the first petitioner, is not entitled to infancy benefit under Section 16(1)(d) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

(2) Section 16 of the Act provides that the Act shall not apply to the establishments mentioned in its sub-section (1). Sub-section (1) of Section 16 originally contained four clauses, viz. (a),(b),(c) and (d). Clause (d), omitted with effect from September 22,1997, was as follows:-

"(d) 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. 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."

(3) One Veegal Engines and Engineering Limited was running a factory at 8, Jessore Road, Kolkata- 700 081. It used to produce small petrol engines for agricultural spray, fishing boats, etc. The Employees Provident Funds and Miscellaneous Provisions Act, 1952 was applicable to it. In 1986 it went into liquidation, prior to that it was under lockout. By an order dated June 22, 1992, Annexure P-1 at p.45, its assets were sold to one Gunny Dealers that emerged as the highest bidder at the Court sale. It was noted in the order that the State Government that had leased the lands to Veegal and at one point of time decided to take over all assets of the company as a going concern but subsequently changed its decision, offered to lease out the lands including the sheds and structures erected thereon to the purchaser for a period to be decided by the Court provided that, inter alia, the purchaser would protect the employment of the orkers of the company by entering into a satisfactory agreement with the workers; and that the purchaser would not change the nature and character of the lands, sheds or structures, without its prior written consent. It was recorded in the order that an agreement dated June 14, 1992, Annexure P-3 at p.52, between Gunny Dealers and Veegals workers would form part of the order, and that the workers would have a right to enforce the agreement against Gunny Dealers, if necessary.

(4) In the agreement between Gunny Dealers and Veegals workers it was stated that the new promoters would be at liberty to diversify and change the existing line of manufacturing motor machine parts to jute based processing unit or any other type of manufacture at their sole discretion; that after renovating the existing factory building they would install machinery for running the unit within six months; that they would engage a maximum of 150 of Veegals workers; that, if necessary, the workers would be given training before absorption in the services; that in the matter of statutory and medical leave the workers would be governed by the provisions of the Factories Act, 1948 and the E.S.I. Act, 1948 respectively; that the employment of the workers under the new promoters would be deemed to be new appointment without any continuity of service; that Veegal would be treated as closed and all closure benefits would be realised by the workers from the official liquidator; that the new promoters would have no past liability whatsoever for services given by Veegals workers as such.

(5) According to the order dated June 22, 1992 the State Government leased the lands and other properties to Jessore Industries, Gunny Dealers nominee, under an agreement dated April 12, 1993. On July 1, 1993 Jessore Industries absorbed Veegals workers. It started production with effect from December 6, 1993. It started manufacturing of spare parts for jute machines, plastic products, etc. On March 18, 19