JUDGMENT 1. -The orders dated 5.7.1982 and 12.7.1982 passed by the Additional. Provident Fund Commissioner, Jaipur (Rajasthan) (hereinafter referred to as the Commissioner) has been challenged in this writ petition, by which the petitioner, M/s. Venkateshwar Synthetics Pvt. Ltd., a Private Limited Company, had been asked to deposit the contribution of the employees towards provident Fund from September, 1978 to October, 1981 and February, 1982 to April, 1982 amounting to Rs. 49,984.5 only. 2. The orders of the Commissioner has been questioned on the averments that the petitioner Company had entered into an agreement of sale with respondent No. 3, M/s. Associated Soaptones Distributing Company Private Limited (hereinafter referred to as Vendor Company) dated 26th November, 1976 and, thus, purchased the Company for a valuable consideration of Rs. 7 lakhs and 25 thousand free from all encumbrances and other liabilities thereon. It is further averred that as per condition No. 5 of the sale deed, it was made clear that all liabilities known or unknown or disclosed or not disclosed arising out of transaction made upto 15.10.1976 and taken or incurred or standing in the name of the vendor company shall continue to belong to the vendor Company and the petitioner Company shall not be made liable to pay this liability in any circumstances. The petitioner, however, has purchased all construction standing over the plot which earlier belonged to the vendor Company along with all fixtures and fittings, along with a polyethylene Company which had previously been run by the vendor company. Further case of the petitioner is that the Provident Fund Inspector inspected the factory purchased and run by the petitioner Company and also discussed about the implementation of the scheme of Employees Provident Fund & Miscellaneous Provisions Act, 1952, on which date, it was explained to him that the petitioner Company is a newly established company and the same is exempted under the provisions of Sub-section 2 of Section 16 of the Employees Provident Fund & Misc. Provisions Act, 1952 and, as such, the provisions of the aforesaid Act were not applicable to the petitioner Company. Provisions Act, 1952 and, as such, the provisions of the aforesaid Act were not applicable to the petitioner Company. However, letters were issued to the various Directors of the Company directing them to submit monthly returns and the employer's share of provident contribution which was stated not to have been paid in the months of January, 1977 to December, 1977 and it was also directed to deposit the contribution within 7 days on receipt of the said notice. Another letter was also issued on 26.12.1977 reiterating the aforesaid direction in response to which the petition sent a reply explaining its position and urging that it is not responsible for the payment of any amount in respect of the period prior to 15.10.1976, as it purchased the company only on 26.11.1976. 3. The Regional Provident Fund Commissioner, however, did not agree with the letter which was sent by the petitioner company and, therefore, initiated proceedings under Section 7A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952, dated 23.3.1978 and further informed the Chief Executive of the petitioner Company to appear before him in person on 9.5.1978. 4. The petitioner failed to appear on the said date, but, ultimately, when it appeared, it was contended that the petitioner Company is not liable to make payment in respect of the period prior to 15.10.1976 and the previous owner of the said Company i.e. vendor Company was responsible for the said payment. The Regional Provident Fund Commissioner, then issued a notice to the respondent No. 2, for conducting an enquiry in this regard, and after hearing the petitioner as also its vendor Company in which representatives of both the companies participated simultaneously from time to time, the matter stood finally concluded on 24.7.1982, when the Regional Provident Fund Commissioner addressed a letter to the petitioner Company on 24.7.1982 asking him to deposit the dues in support of the period from March 1972 to October, 1981 within ten days failing which the matter was to be viewed seriously. The petitioner Company reiterated the reasons for not holding it liable to make the payment for the period prior to 15.10.1976 and, once again urged that vendor company M/s. Associated Soapstone Distributing Company was responsible for making payments which were due prior to, the aforesaid date. 5. The petitioner Company reiterated the reasons for not holding it liable to make the payment for the period prior to 15.10.1976 and, once again urged that vendor company M/s. Associated Soapstone Distributing Company was responsible for making payments which were due prior to, the aforesaid date. 5. With regard to the payment of the contribution after 15.10.1976, it was submitted that since the petitioner Company is a newly established unit and started its manufacturing facilities only on 1.12.1976, it should be granted exemption for a period of three years as per the provisions contained in Section 16(b) of the Employees Provident Fund & Misc. Provisions Act, 1952. It was urged therein that the petitioner Company started implementation of the provisions of the said Act under pretext, and that it should not be held liable for payment for the said period and the amount paid earlier by the petitioner Company should be refunded. It is, therefore, urged that the petitioner Company was not at all liable to make any payment with regard to the dues against it under the Act. On the contrary, it was claimed that the amount should be refunded to it. 6. The Regional Provident Fund Commissioner, however, on hearing the pleas of the petitioner was pleased to pass a separate order with regard to the period from September, 1978 to October, 1981 and another separate order for the period February, 1982 to April 1982 and determined a sum of Rs. 49,984.50 only as dues against the petitioner company and ordered that the amount so determined should be recovered in accordance with Section 38 of the Act. The petitioner Company aggrieved with the order of the Regional Provident Fund Commissioner filed a writ petition in this Court challenging the two orders. 7. 49,984.50 only as dues against the petitioner company and ordered that the amount so determined should be recovered in accordance with Section 38 of the Act. The petitioner Company aggrieved with the order of the Regional Provident Fund Commissioner filed a writ petition in this Court challenging the two orders. 7. Challenging the order of the Regional Provident Fund Commissioner, Rajasthan, Jaipur, the arguments which have been advanced by Shri G.S. Bapna, learned counsel for the petitioner are, in substance, the same which were the contentions urged before the Commissioner which are to the effect that the petitioner company is entitled to infancy protection as provided under Section 16 of the Act from the date the petitioner took over the factory and, secondly, that the petitioner is not liable to make the payment towards the provident fund contribution prior to this incident which means prior to the date of purchase of the Company from M/s. Associated Soapstone Distributing Company. 8. Shri Jain learned counsel appearing on behalf of the respondents has assailed the arguments advanced on behalf of the petitioner by urging that the petitioner acquired ownership rights of the factory which was already covered under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 vide agreement to sell executed on 26.11.1976. It has been submitted that the date of establishment of factory within the meaning of Section 16 would be the date when the manufacturing process started and the change of ownership would not be construed as a date of establishment of the factory. The fact that the new factory or concern subsequently takes over or acquires the factory does not shift the date of establishment. 9. Learned counsel, in order to drive home the contention has further elaborated and submitted that after taking over the factory from 26.11.1976, the petitioner commenced production in the factory from 1.12.1976 with the same machinery etc. The contention, therefore, seeking protection on the ground of infancy has been assailed having no force since it could not be termed a new factory. The contention, therefore, seeking protection on the ground of infancy has been assailed having no force since it could not be termed a new factory. In regard to the contention that the petitioner is not responsible for any of the liabilities of the establishment prior to its taking over by virtue of an agreement of sale is also.without any substance since in accordance with the provisions of Section 17B of the Act, the petitioner along with the transferee are jointly and severally liable for the payment of provident fund dues. Hence, it has been urged that in accordance with the provisions of Section 17B of the Act, the petitioner along with the transferee are jointly and severally liable for the payment of Provident Fund dues to the establishment. Since the petitioner had not only purchased the constructions standing over the plot of land, but also purchased the running industry i.e. the entire factory, including the building, machinery, furniture, fitting, raw-material and the process from the vendor company by an agreement of sale on 26.11.1976 and the petitioner also stated manufacturing process in the factory from 1.12.1976 with the help of the same machinery and continued to manufacture the same product as are being manufactured earlier strengthen the fact that it was a running factory. Hence, it has been urged that a charge of ownership does not affect the applicability of the Act to the establishment and, therefore, the establishment should have reported compliance. It has still further been submitted that the registration as a small scale unit or registration under two legislation with the concerned authorities, has no bearing upon the applicability of the Act, to the petitioner establishment. In support of this contention, reliance has been placed on the judgment of the Supreme Court in the matter of Union of India v. Ogel Glass Works, reported in 1.971 (2) LLG 513. 10. In support of the petitioner's case, regarding his liability, it has been submitted by reading certain provisions of the agreement of sale and, it has been relied upon by virtue of certain clauses therein that, the liabilities prior to the purchase lay with the vendor company and not on the purchaser, which is the petitioner. 11. 10. In support of the petitioner's case, regarding his liability, it has been submitted by reading certain provisions of the agreement of sale and, it has been relied upon by virtue of certain clauses therein that, the liabilities prior to the purchase lay with the vendor company and not on the purchaser, which is the petitioner. 11. From the perusal of the facts and the rival contentions of the parties, it clearly emerges that in so far as the applicability of the Act is concerned, the same was applicable on the vendor company and the petitioner purchased all its rights and started manufacturing also on the unit, which was already running. Hence, I find no force in the submission that the petitioner company is eligible to get the protection of infency clause as envisaged in Section 16 of the Act. It is not a case where the petitioner started the unit de novo so as to claim protection of infency clause and, thus, absolved itself from payment of EPE. Hence, out of the two contentions urged in support of the case of the petitioner, the first one is fit to be struck down as being without substance, and the impugned order cannot be interfered on this ground. The petitioner company, therefore, is clearly liable to report compliance to the notice in regard to the payment for the period after 26.11.1976, the date of purchase. 12. In so far as the remaining question, regarding the liability of the petitioner to make payment prior to the purchase is concerned, the same also is devoid of substance in view of Section 17 of the EPE Act, which clearly lays down that the transferor and the transferee company both are jointly and severally liable to pay the amount towards EPE and the change of ownership does not affect the liability of the establishment under the Act as the establishment continues. It is, however, true that this section does not apply here the establishment close down and a new one is set up. But when the establishment is transferred, the question which is relevant for consideration is, whether the same establishment continues or a new one is set up., It is not the case of the petitioner that it had started the Company from the scratch. But when the establishment is transferred, the question which is relevant for consideration is, whether the same establishment continues or a new one is set up., It is not the case of the petitioner that it had started the Company from the scratch. Hence, the question at the most could be about the apportionment of the liabilities between the transferor and transferee company which had to be considered. In this regard, in my opinion, it is not the look-out of the Regional Provident Fund Commissioner to investigate and find out as to what is the amount which is due against the transferor company and the amount which is to be paid by the transferee Company. It can safely be inferred that when the petitioner Company purchased the Unit from the transferor company, it must have examined regarding the liabilities of the transferor Company and, if the transferee Company has purchased the right of manufacture, it can also be presumed that it purchased its liabilities too. If such an interpretation is not attributed to the term `jointly and severally liable' it can be treated as a scapegoat or a tool for the transferor company to sell away his unit and get away with its liability to make the payment and in that case, the Provident Fund Commissioner would be left in the doldrums regarding the source from which the said amount is to be recovered. It is further clear that the order of the Regional Provident Fund Commissioner was passed after hearing the petitioner company and its vendor, but assuming that there is an agreement or even an understanding between the transferor company and the transferee unit like the petitioner, regarding discharge of its liability towards EPE contribution and the transferor company disclaims any liability to make payment, the transferee can sue the transferor company in this regard and realise the amount by approaching the Civil Court. But,' insofar as EPE contributions are concerned, the same will have to be discharged by the transferee company even according to Section 17B of the EPF Act. The words, `jointly and severally liable' cannot be construed so as to allow the company running the unit to get away with the responsibility to make the payment and that is clearly not allowed by Section 17B of the Act. The plea of the petitioner, therefore, on both the counts has to be rejected. 13. The words, `jointly and severally liable' cannot be construed so as to allow the company running the unit to get away with the responsibility to make the payment and that is clearly not allowed by Section 17B of the Act. The plea of the petitioner, therefore, on both the counts has to be rejected. 13. Accordingly, the writ petition is rejected without any order as to costs.Writ Petition Dismissed. *******