JUDGMENT S.J. Mukhopadhaya, J. 1. Both the appeals having been preferred by common appellant and as arises out of proceedings under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Act 1952 for short), they were heard together and are being disposed of by this common judgment. By judgment dated 31st July, 2000 in CWJC No. 3358/92 (R), learned single Judge affirmed the order dated 20th July, 1992 passed by the Regional Provident Fund Commissioner, Jamshedpur, held that the establishment of petitioner- appellant is not entitled to get exemption under Section 16(1)(d) of the Act, 1952 and the appellant cannot exonerate himself from the liability under the Act, 1952. This decision is under challenge in LPA No. 352/ 2000. By another order dated 7th June, 2001 passed in CWJC No. 549/98 (R), another single Judge refused to entertain the writ petition against the penal order dated 17th November, 1997 passed under Section 14-B of the Act. 1952, there being alternative remedy of statutory appeal. This order of the learned single Judge dated 7th June, 2001 is challenged in LPA No. 382 2001 on the ground that no appellate tribunal is functioning in the State of Jharkhand. 2. To appreciate the dispute one is to notice the relevant facts as placed by the parties. The case of appellant, M/s. P.K. Press Metal (P) Ltd., inter alia, is that M/s. Friends Press Metal (P) Ltd., a Company registered under Companies Act, 1956 had set up an Industrial Unit in Jamshedpur which was financed by Bihar State Financial Corporation (BSFC for short) and the State Bank of India (Bank of short). The plant, equipment, Building and a portion of the land was mortgaged with the BSFC and some portion of the land was mortgaged with the Bank. Though the Company, M/s. Friends Press Metal (P) Ltd. had employed certain persons and started production but the factory had to be closed and the Company abandoned the factory in and around in the year 1987. The BSFC, thereafter, took action under Section 29 of the State Finance Corporation Act, 1951 (SKCs Act, 1951 for short) and took over possession of the entire unit. The BSFC, thereafter, took action under Section 29 of the State Finance Corporation Act, 1951 (SKCs Act, 1951 for short) and took over possession of the entire unit. Subsequently, BSFC came out with an advertisement as per Section 29 of the SFCs Act for sale of mortgaged assets of M/s. Friends Press Metals (P) Ltd. The appellant being the highest bidder, purchased the assets, land, building, machines of M/s. Friends Press Metals (P) Ltd. which were handed over to the appellant in 1989. Further case of appellant is that the Company, M/s. Friends Press Metals (P) Ltd. i.e. the original promoter and the appellant-company M/s. P.K. Press Metal (P) Ltd. are two separate companies having different entities. The shareholders and Directors of the two companies are different and one company had nothing to do with the other. The appellant-Company had no dealing with the Company, M/s. Friends Press Metals (P) Ltd. and the transfer/sale made by the BSFC is only of the mortgaged assets in exercise of the Statutory power under Section 29 of the SFCs Act, 1951 which was a coercive step against M/s. Friends Press Metals (P) Ltd. The transfer/sale so made did not affect the status, constitution, composition or continuance of the Company, M/s. Friends Press Metals (P) Ltd. which continued to be a company incorporated and registered under the provisions of the Indian Companies Act. It was also pleaded that the BSFC only handed over the properties of the original promoter i.e. M/s. Friends Press Metals (P) Ltd. to the auction purchaser i.e. the appellant. The properties came in the hands of a new company with altogether a new management. The appellant renovated the plant and machinery. In this manner, a new establishment came into existence which started production in the year, 1990. Section 29 of the SFCs Act, 1951 though permits sale of the mortgaged assets from the original promoter to the auction purchaser, neither the employees of erstwhile employer (original promoter) are transferred to the auction purchaser, nor the liabilities of the erstwhile employer transferred to the auction purchaser. It appears that notices under Section 7-A of the Act, 1952 were issued by the Respondents vide No. JSR/7-A Cell/2899/300 to 305 dated 26.4.1991 to the appellant for determination of dues, if any. In pursuance of the said notice, the appellant took plea that it is a new company. It appears that notices under Section 7-A of the Act, 1952 were issued by the Respondents vide No. JSR/7-A Cell/2899/300 to 305 dated 26.4.1991 to the appellant for determination of dues, if any. In pursuance of the said notice, the appellant took plea that it is a new company. New establishment established in the year 1989-90 which started production from 23rd March, 1990. It claimed benefit of infancy period of three years under Section 16(1)(d) of the Act, 1952. The Regional Provident Fund Commissioner, Jamshedpur held that the old establishment of M/s. Friends Press Metals (P) Ltd. never became dead but due to dispute amongst the Directors of the previous company and due to financial problem, the management failed to run the establishment resulting in stoppage of production. The management left the establishment without final settlement of provident fund of workers and without payment of bonus, compensation as per ID Act, 1947 and the new management merely taken up the management of said establishment on its purchase. The prayer was rejected by the Regional Provident Fund Commissioner, Jamshedpur vide impugned order dated 20th July, 1992, as affirmed by the learned single Judge in CWJC No. 3358/92 (R). The proceeding under Section 7-A of the Act, 1952 for assessment of dues for the period from April, 1993 to August, 1995 was continued wherein final order was passed on 20th February, 1996. On assessment, the Regional Provident Fund Commissioner held/ inter alia, that the appellants establishment was liable to pay assessed amount of Rs. 10.31.231/- only within 15 days under BR/2899 allotted to erstwhile M/s. Friends Press Metals (P) Ltd. The appellant challenged it by filing a writ petition CWJC No. 1025/96 (R). The said case was disposed of on 26.3.1996 allowing the appellant to file an application under Section 7-B of the Act, 1952 for review of the said order. Subsequently, a proceeding under Section 14-B of the Act, 1952 started for the period from April, 1993 to May, 1996 after notice to the appellant. By impugned order dated 17th November, 1997, the Regional Provident Fund Commissioner, Jamshedpur assessed a sum of Rs. 7,86,264/- (Seven lakhs eighty six thousand two hundred sixty four only) payable by the establishment towards the damages. By impugned order dated 17th November, 1997, the Regional Provident Fund Commissioner, Jamshedpur assessed a sum of Rs. 7,86,264/- (Seven lakhs eighty six thousand two hundred sixty four only) payable by the establishment towards the damages. This penal order was challenged in CWJC No. 549/98 (R) wherein the learned single Judge vide order dated 7.6.2001 allowed the appellant to move in appeal before the Tribunal, constituted for the purpose. 3. According to counsel for the appellant, its establishment is new one distinct from the earlier establishment of M/s. Friends Press Metals (P) Ltd. Counsel for the appellant also opposed the order of damage passed under Section 14-B of the Act, 1952 on the ground of violation of Rules of natural justice. It was submitted that before passing such penal order, a date of hearing should have been fixed and on hearing the appellant, appropriate order should have been passed. 4. The case of the respondents before the RPF Commissioner, Jamshedpur was that the establishment in question is same which could not function for certain period because of dispute between the Directors, who abandoned the establishment. The new management merely revived the same establishment by re- production. There was no change in employees, nor the equipment/machinery of the establishment were Replaced in its totality. Before this Court, counsel for the respondents placed reliance on facts as mentioned in the impugned order dated 20th July, 1992 passed by RPF Commissioner, Jamshedpur in support of aforesaid submission. So far as damage is concerned, counsel for the respondents submitted that a show cause notice was given to appellant in pursuance of which a show cause reply was filed by the appellant, it amounts to compliance of the principle of rules of natural justice. 5. Counsel for both the parties placed reliance on different decisions, as referred hereunder. The following decisions were referred by the appellant in support of submission that establishment is a new one and is entitled for benefit of three years infancy. In the case of Regional P.P. Commr. v. Dev Kiran Paper Mills (P) Ltd., reported in 2000 LIC 597 , the Karnataka High Court on the facts and circumstances held that subsequent transferee was neither successor, assignee or heir of original defaulting company. There being no continuity between defaulting company and subsequent transferee, the subsequent transferee would be entitled to infancy protection. v. Dev Kiran Paper Mills (P) Ltd., reported in 2000 LIC 597 , the Karnataka High Court on the facts and circumstances held that subsequent transferee was neither successor, assignee or heir of original defaulting company. There being no continuity between defaulting company and subsequent transferee, the subsequent transferee would be entitled to infancy protection. That was also a case of taking over of a company by State Finance Corporation as per 29 of the State Finance Act, 1951 from which the subsequent transferee purchased the company. In the case of Vittaldas v. R.P.F. Commr., reported in AIR 1965 Madras 508, the Madras High Court dealt with meaning of an establishment as mentioned in Section 16(1) of the Act, 1952. It held that the Act applies to factories or establishment and not to changes in ownership or its history. An establishment, in the context of the usage of the word in the Act, means an "organised body of men maintained for a purpose". With the said definition and the principle it held that the Act, 1952 really applies to the factory or establishment of Industrial Organisation, whichever it might be termed, and not to changes in pwnership or to the history of the organisation which might include temporary closures, the true way of looking at the liability becomes fairly clear. In the said case, the Court held that the transferee company is entitled to infancy protection. In the case of Shambhudayal Tiwari v. R.P.F. Commr., Indore, reported in 1977 LIC 1131, the licensee was running a Railway Restaurant, it would up business and relinquished licence. The Railways granted a new licence to petitioner of the said case and provided certain old stocks to him. The Madhya Pradesh High Court in the facts and circumstances of the said case, held that the business of the said petitioner is not a continuance of old business. In the case of P.G. Textile Mills v. Union of India, reported in 1976 LIC 666, the Gujrat High Court discussed the scope and applicability of Section 16(1)(b) of the Act, 1952, taking into consideration the fact that the business of the old company was completely wound up and closed, Court sold the assets of old company, held that there could not be continuity of new employer with old company. The purchaser company was held to be entitled to full infancy benefit. The purchaser company was held to be entitled to full infancy benefit. In the case of Rubka Fruit Products v. R.E.P.F. Commr. T.N., reported in 1978 LIC 1517, the Madras High Court for determination of issues as to what constitutes a new establishment, taking into note the fact that the company owning machineries etc. went into liquidation, another company bought the machineries of the former company from the mortgagee Bank and started business on the same premises as used by the liquidated company and the business remained closed for about six months, held the purchaser company a new establishment and entitled to protection of Section 16. Madras High Court in another case of M/s. Conveyor Equipment Co. (P) Ltd. v. Union of India, reported in 1986, LIC 630 taking into consideration the fact the previous owner had closed a part of its establishment, there was a complete stoppage of work as a result of closure of establishment and all the previous employees had been discharged on payment of closure compensation, after 16 days of closure a lease of land, building and machinery was given to the lessees who later started the same business as a new concern held the benefit of Section 16(1)(b) of the Act, 1952 applicable. In the case of Shri Angappa Spinning Mills v. Regional Commr. EPF, Madras, reported in 1986 LIC 458, Section 17-B of the Act, 1952 fell for consideration before the Madras High Court. In the said case, the Court held the sale or transfer of establishment is outside pale of Section 17-B of the facts and circumstances of the said case. Reliance was also placed by counsel for the appellant in the case of R.P.F., Commr., T.N. v. South India Flour Mills Pvt. Ltd., reported in 1986 LIC 650, wherein the Madras High Court as regards the reasonable opportunity to be given to the employer under Section 14-B held that before the damages are lived and recovered, the Provident Fund Commissioner is required first to determine after hearing the defaulter, as to whether the defaulter is liable to pay the damages at all and thereafter, will decide the damages, if any, to be paid and the quantum. A show cause notice to be given as to why the damages should not be recovered from the defaulter in respect of two materials, namely, first the liability to pay damages and secondly quantum of damages. A show cause notice to be given as to why the damages should not be recovered from the defaulter in respect of two materials, namely, first the liability to pay damages and secondly quantum of damages. In another case of India Supplies Engg. Works Ltd. v. State of U.P., reported in 1994 LIC 1179, the Allahabad High Court held that before imposition of penalty and damages opportunity of hearing to be given. The Patna High Court in the case of Inter State Transport Agency v. R.RF. Commr., Patna, reported in 1983 LIC 940 held that imposition of penalty under Section 14-B is a quasi judicial function and the order must be a speaking order. 6. The criteria for exemption under Section 16 fell for consideration before the Supreme Court in Sayaji Mills Ltd. v. Regional P.F. Commr., reported in 1984 (Supp.) SCC 610 : AIR 1985 SC 323 . That was a case wherein the production of the factory was stopped due to order of the High Court in proceedings for winding up of company owing factory to sell assets of the company. Same factory recommended production after its sale by absorbing substantial number of employees under old management. The Supreme Court held that no new factory came into existence and made the following observation. This is not a case where the old factory was reduced into scrap and a new factory was erected in its place. Nor can it be said that there was total discontinuity brought about between the old factory and the factory which was restarted after the appellant purchased it. The stoppage of production was brought about temporarily as stated earlier by the winding up order and the factory was restarted after it was sold to the appellant by the official Liquidatory. The finding of fact recorded by the trial Court in this case which is affirmed by the High Court clearly establishes that it was the same old factory which recommended production on November 12, 1955. What is of significance is that a substantial number of workmen and staff who were working under the former management had been employed by the appellant though it is claimed that they had entered into new contracts of employment. What is of significance is that a substantial number of workmen and staff who were working under the former management had been employed by the appellant though it is claimed that they had entered into new contracts of employment. Mere investment of additional capital or effecting of repairs to the existing machinery before it was restarted, the diversification of the lines of production or change of ownership would not amount to the establishment of a new factory attracting the exemption under Section 16(1)(b) of the Act or a fresh period of three years." 7. From the decisions aforesaid, it will be evident that there is no strait jacket formula that whenever an old establishment is sold and purchased by a new management. It will be a new establishment or the same old establishment. It all depends on individual facts and case. From the impugned order dated 20th July, 1992, it will be evident that the establishment was set up in March, 1971 by "M/s. P.K. Enterprises" under Proprietorship of Mrs. S. Devi and Sri S.K. Agrawal as Manager. It asked for, allowed and enjoyed five years infancy period upto 10.3.1976. The establishment was covered under Section 1(3)(a) of the Act, 1952 only w.e.f. 10th March, 1976. In the year 1982, it was registered under Companies Act under the name and style "M/s. Friends Press Metals (P) Ltd." having Mrs. S. Devi, Sri S.K. Agrawal and Sri N.P. Agrawal as Directors. The establishment under Code No. BR/2899 was reporting compliance. It started defaulting in payment of provident fund contribution and allied dues since 1985. Thereafter, some change took place in the management and Shri Nakul D. Kamani took over as Chairman-cum-Managing Director along-with Directors as referred above. Subsequently, there being dispute amongst the Directors and because of financial crisis, the Directors abandoned the establishment and the workers in May, 1987. The management ceased its functioning without prior intimation to the workers, other Government departments like provident fund. Neither compensation/retrenchment bonus was paid to the workers, nor their provident fund was finally settled. The arrears due since 1985 were not cleared. The workmen, thus, continued in the roll of establishment in absence of order of termination/retrenchment. The BSFC, Patna being financer of the establishment, took step under Section 29 of SFCs Act. 1951. Neither compensation/retrenchment bonus was paid to the workers, nor their provident fund was finally settled. The arrears due since 1985 were not cleared. The workmen, thus, continued in the roll of establishment in absence of order of termination/retrenchment. The BSFC, Patna being financer of the establishment, took step under Section 29 of SFCs Act. 1951. The appellant being the successful bidder of the mortgaged assets of the establishment, the establishment was handed over to appellant. M/s. P.K. Press Metal (P) Ltd. on 19th October, 1989 on the agreed terms and conditions as laid down in BSFC letter No. 3030/87-88 dated 10th March, 1988 (emphasis given by me). 8. The Regional Provident Fund Commissioner, Jamshedpur noticed the aforesaid facts as also the letter of present management- appellant dated 9th March, 1990 addressed to the Chief Inspector of Factories, Ranchi, relevant portion of which is quoted hereunder : "M/s. Friends Press Metal (P) Ltd. was running smoothly and was following all the rules and regulations. In this connection all the plants and structural drawings were approved by your good , office and nothing has been changed in the factory premises since we have taken over in our new management under the name and style of M/s. P.K. Press Metal (P) Limited. We would like to inform you that there is no change in manufacturing process also." The Provident Fund Commissioner also noticed that the employees of the old establishment were not discharged/terminated. They were allowed to continue in the establishment under the new management. In this background, the Regional Provident Fund Commissioner, Jamshedpur came to a definite conclusion that the business carried on by the existing establishment was one and the same. I find no reason to differ with the aforesaid finding of fact based on evidence. 9. Counsel for the appellant tried to distinguish the decision of the Supreme Court in Sayaji Mills Ltd. (supra) on the ground that the provision of Section 17-B was introduced later on in the Act. This submission is to be rejected as it is not the issue whether Section 17-B of the Act, 1952 will be applicable or not but the Issue is whether the establishment under the new management of appellant is same or not, an issue based on question of fact not law. This submission is to be rejected as it is not the issue whether Section 17-B of the Act, 1952 will be applicable or not but the Issue is whether the establishment under the new management of appellant is same or not, an issue based on question of fact not law. It having answered by the Regional Provident Fund Commissioner on the basis of facts on record, as I observe, it requires no interferance. So far as damage under Section 14-B is concerned, the Supreme Court in the case of Organi Chemical Industries and Anr. v. Union of India and Ors., reported in (1979) 4 SCC 573 while upheld the provisions, held that a penalty for default or failure in performance of duty imposed under the Act as well as a compensation for the loss sustained by the employees, recovery of damages equivalent to the amount of arrears from a habitually defaulting employer, on facts, may be justified. The determination of damages is not an inflexible application of a rigid formula. The words as it may think fit to impose show that the authority is required to apply its mind to the facts and circumstances of the case. 10. In the present case, the demand made on assessment under Section 7-A of the Act, 1952 is Rs. 10,31,231/- whereas the damages claimed is Rs. 7,86,264/-. Thus, it cannot be stated to be greater than the assessment to interfere with it or to annul and set aside. The question as to whether quantum of damages of Rs. 7,86,264/- is correct or not could not have been determined by the learned single Judge under writ jurisdiction. In the background, if the learned single Judge asked the appellant to prefer appeal, I find no reason to differ with such observation. Rules of natural justice for determination of damages followed or not is dependent on facts of each of the cases. If the appellant has been advised to move in appeal against the order of damages passed under Section 14-B of the Act, 1952, it can also raised the question of reasonable opportunity before the appellate Court which can determine the issue on the basis of fact of the case. If the appellant has been advised to move in appeal against the order of damages passed under Section 14-B of the Act, 1952, it can also raised the question of reasonable opportunity before the appellate Court which can determine the issue on the basis of fact of the case. I am not inclined to interfere on such ground as at least notices were issued to appellant under Section 14-B of the Act, 1952 and on their request, the case was adjourned from time to time, after taking into consideration the objection/show cause preferred by appellant, assessments were made and damage was prescribed by the competent authority. So far as Tribunal is concerned, if no member was appointed at that relevant time, the appellant should have filed the appeal and should have awaited its functioning. Now, it is open to the appellant to move in appeal against the damage, as ordered by learned single Judge on 7th June, 2001 in CWJC No. 549/98 (R). 11. There being no merit, both the appeals are d ismissed. However, in the facts and circumstances, there shall be no order, as to costs.