JUDGMENT Gopalan Nambiyar, C. J. 1. The appeal is against dismissal in limine of the appellant's writ petition by a learned Judge of this Court. The writ petition was to quash Ext. P10 order of the Government upholding the decision of the Regional Provident Fund Commissioner treating the appellant's establishment, namely, the Padma Air conditioned Movie House, as a continuation of the old covered establishment and denying infancy protection to the appellant. The appellant is the Managing Partner of a partnership firm by name Padmasree Enterprises carrying on business at Banerji Road, Ernakulam, under a deed of partnership dated 15th February 1972. The appellant took on lease the Padma Theatre situated on the M. G. Road, Ernakulam together with its accessories such as the transformer room, the compressor room, projector/air conditioning plant, furniture etc. for a period of three years from 1st March 1971, on terms and conditions set forth in the registered lease deed dated 21st February 1972. The partnership was registered under the Partnership Act. The object of taking over the theatre was for the exhibition of cinematographic films. The theatre itself belonged to another partnership firm by name The New Guna Shenoy and Company which was carrying on the business of exhibition of cinematographic films even prior to the date of the lease. It is alleged that they closed the theatre on 6th May 1971 for purposes of renovation, remodelling and air conditioning, that all the staff had been retrenched by payment of retrenchment compensation, gratuity and other dues and that their Provident Fund accounts had been settled and the services of all employees had been lawfully terminated, the termination having been accepted. After renovation and air conditioning, the theatre was opened for exhibition of films on 12th March 1972, and the appellant started its cinematographic exhibitions in the theatre. A few of the employees previously employed in the Padma Theatre were taken into the service of the appellant. But the main bulk of the employees was formed by new recruits. The theatre was not taken over as a running concern with all the assets and liabilities of the previous owner. Only the theatre with the equipments were taken over by the appellant. Ext. But the main bulk of the employees was formed by new recruits. The theatre was not taken over as a running concern with all the assets and liabilities of the previous owner. Only the theatre with the equipments were taken over by the appellant. Ext. P1 is a copy of the letter from the appellant to the Provident Fund Inspector enclosing a copy of the lease deed between the appellant and New Guna Shenoy and Company and a copy of the partnership deed. The appellant was asked to comply with the provisions of the Employees' Provident Fund Act from 12th March 1972-vide Ext. P2. This was replied to by Ext. P3 by which the appellant pointed out that the Act did not apply to them, that they are an infant establishment having taken over the Padma Air conditioned Movie House without its staff for a period of three years only and that the owners of the theatre had paid retrenchment compensation to their staff. They requested that the matter may be referred to the Central Government under S.19-A. By Ext. P4 reply, the Regional Provident Fund Commissioner took the view that neither temporary closure nor change of management will effect a change in the date of setting up of the establishment, and that the statutory requirements of the Employees' Provident Fund Act had to be complied with from 1st March 1972 onwards. By Ext. P5, the petitioner again prayed for a reference under S.19-A. By Ext. P6 he was informed that his representation was fixed for hearing to 26th August 1975 at Ernakulam. He was directed to bring the original attendance register, cash register, ledgers and other documents relied on in support of his representation. The appellant did not appear on that date. Ext. P7 is a notice for hearing on 1st May 1978. The appellant sent Ext. P8 telegram requesting adjournment, which was followed by Ext. P9 confirmatory letter. Ext. P10 order was passed on 12th May 1978. It was noted that the Padmasree Talkies owned by New Guna Shenoy and Company had been covered under the Employees' Provident Fund Act and the position continued till 6th May 1971 on which the talkies was closed down for renovation, remodelling and air conditioning, and opened again on 12th March 1972. In the meantime New Guna Shenoy and Co. It was noted that the Padmasree Talkies owned by New Guna Shenoy and Company had been covered under the Employees' Provident Fund Act and the position continued till 6th May 1971 on which the talkies was closed down for renovation, remodelling and air conditioning, and opened again on 12th March 1972. In the meantime New Guna Shenoy and Co. had leased the remodelled air conditioned theatre to M/s Padmasree enterprises, the appellant firm, in which one of the partners of New Guna Shenoy and Co., namely, Shri A. L. Srinivasa Shenoy and also his family members were partners. By Ext. P10, it was noticed that the petitioner was given three opportunities to appear, one at Trivandrum on 27th February 1978 and the other two at Delhi, on 3rd April 1978 and 1st May 1978. But the petitioner failed to appear. Request for adjournment was rejected and it was held that the Regional Provident Fund Commissioner's decision to treat the petitioner's establishment as a continuation of the one covered already and to deny infancy protection was correct- Ext. P10. The Petitioner's contention is that the petitioner's establishment was an altogether new establishment which had been setup only in 1972, that having regard to the fact that the ownership was different, that the employees of the original establishment had been paid off and new employees have been substantially recruited for the petitioner's establishment, it would be covered only from the date on which it was actually setup in 1972 and not from the earlier date. The fact of the registered lease, of a new partnership, and of the payment of retrenchment compensation to the employees, were all stressed to make out that petitioner's establishment was a new establishment unrelated to the previous one. 2. In the midst of all these transformations, the problem posed is the old and familiar one. Do we get only the old wine in new bottles, or do we see new wine altogether? No hard and fast rules can be laid down as to when an establishment can be said to be a new establishment or when after transformations relating to management and ownership or regarding mode of operations etc., there had been a termination of the original establishment and a setting up of an altogether new one. No hard and fast rules can be laid down as to when an establishment can be said to be a new establishment or when after transformations relating to management and ownership or regarding mode of operations etc., there had been a termination of the original establishment and a setting up of an altogether new one. The problem assumes importance because under S.16(1)(b) of the Act infancy protection is available for the stated period from the date on which the establishment has been setup. The relevant portion of the section may be noticed. "16. Act not to apply to certain establishments.-(1) This Act shall not apply x x x x x x x x x x x x (b) to any other establishment employing fifty, or more persons 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, setup. Explanation.- For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly setup merely by reason of a change in its location. x x x x x x x x x x x x" 3. Counsel for the petitioner would contend, as stated, that the payment of retrenchment compensation, the closure of the establishment for a time and the registered lease from the original owners in favour of the petitioner, were all powerful indications to show that there was a new establishment. Many decisions were cited in support of the position thus taken up. The answer to the question is essentially one of fact. No universal test or guideline can be laid down as to when an old establishment can be said to have been substituted by a new one. In the instant case, we think the facts have been correctly assessed by Ext. P10. As noticed, the temporary closure of the original establishment was only for ten months; the restarting was for the same purpose of exhibition of cinimatographic films, and the employees were substantially the same. In the result it was concluded that the new establishment was not unconnected with the old one. With that conclusion we find no warrant for interference. The learned Judge was right in dismissing the writ petition and we are in agreement with his view. 4. In the result it was concluded that the new establishment was not unconnected with the old one. With that conclusion we find no warrant for interference. The learned Judge was right in dismissing the writ petition and we are in agreement with his view. 4. As a large number of decisions were cited, we may briefly note some of these. 5. Attention was called to the decision of this Court in Shanmugham Chettiar v. Regional Provident Fund Commissioner 1965 (II) LLJ 654 The principle laid down was only that all the facts and circumstances have to be taken into consideration before a conclusion is reached as to when an establishment can be said to have been setup. The Mahalekshmi Cotton Mills had gone into liquidation. Even after the winding up order, the mills continued to work. The High Court directed the Official Liquidator to sell the mills as a going concern. Work was stopped for a while and restarted thereafter as a partnership styled Cochin Lakshmi Mills. The Regional Provident Fund Commissioner held that partnership was only the same old concern and the petitioner was liable for the contribution. The High Court ruled that the question had to be decided on the facts of each case and that the change of ownership of one establishment is not the end of the establishment and the commencement of another. Stress was made of the fact that the sale was a going concern. 6. In Provident Fund Inspector v. N.S.S. Cooperative Society 1969 (II) LLJ 693 = AIR 1971 SC 82 , the Supreme Court reversed the decision of this Court in Provident Fund Inspector v. N.S.S. Cooperative Society 1969 (II) LLJ 693 = AIR 1971 SC 82 and followed its own ruling in Ramakrishna Rao v. State of Kerala 1969 (II) LLJ 682 . The Court stressed the circumstances that the press was not purchased as a going concern and that the purchaser was not under any obligation to take in service any of the previous employees, and also the fact that the accounts of the employees were settled by the previous employer. On these facts, it was ruled that the N.S.S. Cooperative Society had setup a new establishment and that the provisions of S.16(1)(b) would have to be applied on the basis that the new establishment had been setup. 7. On these facts, it was ruled that the N.S.S. Cooperative Society had setup a new establishment and that the provisions of S.16(1)(b) would have to be applied on the basis that the new establishment had been setup. 7. In Ramakrishna Rao v. State of Kerala 1949 (II) LLJ 682, it was observed: "The language of S.16(1)(b) is very Precise. The last thirteen words of the clause 'from the date on which the establishment is or has been setup' show both cases where the establishment is new and where the establishment is old. The word 'is' shows that a new establishment is meant and the words 'has been' show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments, the words 'is setup' would have been sufficient. The construction sought to be placed would render the words 'has been' otiose. Further, the scheme of Para 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind S.16 read with Para 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or participle be used the meaning is the same. Clause (b) of S.1(3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings." 8. Our attention was called to the decision of a Division Bench of the Madras High Court in R. P. F. Commissioner v. Vittaldas Jagannathadas 1969 (II) LLJ 145 reversing the judgment of a learned Single Judge in 1966 (I) LLJ 240. It was pointed out by the Division Bench that the fact that a new Company subsequently takes over or acquires a factory or establishment does not shift the date of the commencement of the establishment. The criterion will be unaltered even if the factory ceases production of goods for a time and resumes production later. The impact of the Act is upon the factory or establishment and not on the owner. The criterion will be unaltered even if the factory ceases production of goods for a time and resumes production later. The impact of the Act is upon the factory or establishment and not on the owner. We do not think it necessary or profitable to review all the other decisions that have been cited to us. As rightly pointed out, it must essentially be a question of fact as to whether there has been a substitution of an old establishment by a new one and if so whether the new establishment can be said to have been set up on the date when the old one had come into existence. S.1(3)(6) provides that the Act applies: "1. Short title, extent and application.- x x x x x x x x x x x x (3) Subject to the provisions contained in S.16, it applied x x x x x x x x x x x x (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification. x x x x x x x x x x x x" By notification the Cinema House has also been brought into the scope of the establishments. Counsel for the Respondent, besides emphasising the facts, called attention to the decisions in S. V. Palanimalai v. R.P.F. Commissioner 1971 (I) LLJ 44, State of Punjab v. Satpal AIR 1970 SC 655 , Messrs. Bharat Board Mills v. R. P. Fund Commissioner AIR 1957 Cal. 702 and Vegetable Products Ltd. v. R.P.F. Commissioner AIR 1959 Cal. 789. These, between them state sufficiently clearly that a change of ownership, machinery or premises may not by itself amount to the replacement of an old establishment by a new one. In M/s Bharat Board Mills v. R.P. Fund Commissioner AIR 1957 Cal. 702 . Bose, J. as he then was, stated that the date of establishment of a factory is the date when it starts manufacturing for the first time. In M/s Bharat Board Mills v. R.P. Fund Commissioner AIR 1957 Cal. 702 . Bose, J. as he then was, stated that the date of establishment of a factory is the date when it starts manufacturing for the first time. The position was discussed fairly fully by Justice D. N. Sinha in Vegetable Products Ltd. v. R.P.F. Commissioner AIR 1959 Cal. 789. The learned Judge observed: "(7) Coming now to S.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 S.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 alterations are of such magnitude that it cannot be said that the same factory was continuing, then indeed the continuity can be said to have been broken. Again, if a factory becomes so moribund and defunct that for all intents and purposes it has become dead and then after a long period of time somebody else recommences production entirely a new, it might be said that the factory has been newly established. As I have stated above, the solution will depend entirely on the facts of each case. What will have to be considered is the lapse of time, the conduct of the parties, the intentions of the transferor and the transferee, and a consideration of all other surrounding circumstances. Normally speaking, however, a mere change of ownership cannot affect the continuity of a 'factory', for purposes of the Employees' Provident Funds Act. This has now been established in various decided cases. Normally speaking, however, a mere change of ownership cannot affect the continuity of a 'factory', for purposes of the Employees' Provident Funds Act. This has now been established in various decided cases. Bose, J. in Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner, AIR 1957 Cal. 702 , has held that the date of establishment of a factory is the date when the factory starts its manufacturing process. The fact that a new company or concern subsequently takes over or acquires the factory does not shift the date of the establishment of the factory to the date of its taking over or acquisition, nor does the fret that the factory had ceased to produce goods for a certain time and resumes production after certain brief intervals, result in extinction of the old factory and establishment of a new factory." The learned Judge noticed an unreported judgment of Tendolkar, J. of the Bombay High Court which was almost identical what the learned judge had to deal with. It was ruled that for the purpose of the Act what had to be considered is the establishment of the factory and a change of ownership was irrelevant; and that if it were not so, then by various devices, the right of the workmen to get Provident Fund benefits would be put in peril and thwarted. 9. In the light of these decisions and on the proved facts we are unable to hold that merely because the establishment was not taken over as a going concern and merely because retrenchment compensation had been paid off to the old workmen, and there was a registered lease in favour of the petitioner, it cannot be said that the establishment was setup only in 1972 as the petitioner would contend. There was, in the main a continuity of the business and we think the Provident Fund Commissioner was right in his conclusion in Ext. P10. The learned Judge was right in refusing to interfere with the same. We dismiss the appeal with no order as to costs.