ORDER 1. This petition under Article 226 of the Constitution of India has been preferred by the petitioner being aggrieved by the order dated 20.10.2005 (Annexure P/24) passed by the respondent. The petitioner has also challenged the order dated 31.03.2006 (Annexure P/31) passed by the respondent whereby the review preferred against the order dated 20.10.2005 has been dismissed. 2. As per the petitioner, it is engaged in the business of manufacturing and selling of pharmaceutical products. It has taken on rent premises situated at 44/A-45, Rambali Nagar, Industrial Area, Indore and a rent note was also entered into between the landlord and petitioner. In 1996, petitioner obtained a license for manufacturing drugs and pharmaceutical products under the Drugs and Cosmetics Act, 1940. It got the petitioner factory registered under M.P. Shops and Establishments Act, 1958 as well as under the Central Sales Tax Rules, Central Income Tax Rules and State Sales Tax Rules. 3. The petitioner received a notice dated 13.9.1996 from the respondent, wherein it was advised to report compliance of the Employees Provident Fund Act in respect of the employees under the code number allotted to M/s. Abril Pharmaceuticals Private Limited. Subsequently, the petitioner also received a summon under section 7-A of the Act. The petitioner submitted reply stating that its establishment is a newly set up unit and the provision of the said Act is not applicable under the purview of section 1 of the Act. It is entitled to infancy benefit as provided under section 16 of the Act. An officer of the respondent visited the factory of the petitioner and prepared an inspection note dated 10.12.1996 recording that from April, 1996 to October, 1996 total strength of the employees of the petitioner company's factory was between 9-11. He however incorrectly advised the petitioner to deposit the Employees Provident Fund dues from April, 1996 to October, 1996. Relying upon this report and without taking into consideration the objections preferred by the petitioner, the Assistant Provident Fund Commissioner passed an ex-parte order under section 7(A) of the Act on 4.4.1997 under the code No.MP/5300 allotted to M/s Abril Pharmaceuticals Pvt. Ltd. It held the petitioner company liable for payment of Employees Provident Fund of Rs.14,798/- for the period April, 1996 to September, 1996. 4. 4. The petitioner after receiving the aforesaid order, moved an application before the respondent stating that it has committed an error in determining the amount of dues without determining the question of applicability of the Act. On 16.12.1997, the petitioner was directed to file copies of its representations submitted from time to time. On 2.1.1998, the petitioner filed reply to the aforesaid letter. Its establishment was then visited by two Enforcement Officers of the respondent on 27.1.1999 wherein they issued recovery note for an amount of Rs.2,08,661/- against the petitioner which included the amount determined earlier. The amount included damages in the sum of Rs.1,83,934/- pertaining to M/s. Abril Pharmaceuticals Private Limited vide recovery certificate dated 7.7.1997. 5. The premises of the petitioner company was locked on 28.1.1999. The petitioner then preferred W.P. No.162 of 1999 before this Court in which by an interim order dated 5.3.1999, the respondent was directed to consider petitioner's application dated 12.6.1997. The premises of the petitioner was then inspected on 19.3.1999. Thereafter, the respondent passed an order on 31.3.1999. Compliance report was filed before this Court in the pending writ petition stating that the application dated 12.6.1997 of the petitioner has been dismissed exercising powers conferred under section 7-A(4) of the Act. The said order was challenged in the pending writ petition by way of amendment. However, by order dated 31.3.1999, the petition was dismissed as infructuous since the grievance of the petitioner had been redressed. The petitioner preferred LPA No.179/1999 before the Division Bench in which by order dated 27.8.1999 and 19.11.1999, the respondent was directed to lift the attachment of machinery. By order dated 11.08.2004, the LPA was allowed and the matter was remanded back to the Single Judge for hearing on merits. 6. The petitioner then received notice dated 25.2.2005 under section 7(A) of the Act determining dues for the further period of assessment i.e. October, 1996 to November, 2003 fixing the case for hearing on 24.3.2005. W.P. No.162/1999 was then allowed by this Court by order dated 23.6.2005 and the order dated 9.4.1997, 31.3.1999 and demand dated 27.1.1999 were set aside and the matter was remanded back to the respondent for holding fresh inquiry after giving an opportunity of hearing to the petitioner. Petitioner was also granted liberty to file any document on which it placed reliance. 7. The petitioner then submitted an application to the respondent on 16.8.2005. Petitioner was also granted liberty to file any document on which it placed reliance. 7. The petitioner then submitted an application to the respondent on 16.8.2005. It also filed 27 documents on 19.9.2005 in support of its case stating that the provisions of the Act, 1952 are not applicable upon it. On 20.9.2005 an objection was also preferred by the petitioner. 8. Thereafter, by order dated 20.10.2005, the respondent has determined the dues against the petitioner to the tune of Rs.3,52,192/- for further period of assessment of dues from October, 1996 to November, 2003. It also held the petitioner liable to pay interest under section 7(Q) and damages under section 14 (B) of the Act, 1952. The petitioner submitted an application for review of the aforesaid order, which has also been dismissed by order dated 30.3.2006. 9. Learned counsel for the petitioner has submitted that the respondent has not decided the dispute relating to applicability of the Act, 1952 / coverage of the petitioner company under section 1 of the Act. The lease deed dated 15.12.1995 between petitioner and previous establishment Abril Pharmaceuticals Private Limited has wrongly been relied upon. The lease states that due to financial problems, M/s. Abril Pharmaceuticals Pvt. Ltd. closed down and completely wound up its business and sold a major part of its plant and machinery and surrendered its tenancy to the landlord. Only some machinery could not be sold which was leased out to the petitioner only for two years. The lease deed was required to be registered but was not registered hence could not have been relied upon. The inspection note dated 10.12.1996 of the Enforcement Officer of the respondent has not been considered which stated that the employees working in petitioner's establishment are 9-11. Similar reports of the Enforcement Officer have been submitted later on and from time to time. The strength from inception till date has been 9 to 12 hence the petitioner is not covered under the Act, 1952. The petitioner establishment is a new company which has started functioning only in April, 1996 and was entitled to infancy protection under section 16 of the Act, 1952. There was no continuity between the previous establishment Abril Pharmaceuticals Private Limited and petitioner's establishment. No recovery pertaining to M/s. Abril Pharmaceuticals Private Limited could be made from the petitioner because petitioner is not its successor. There was no continuity between the previous establishment Abril Pharmaceuticals Private Limited and petitioner's establishment. No recovery pertaining to M/s. Abril Pharmaceuticals Private Limited could be made from the petitioner because petitioner is not its successor. The petitioner has not taken over the establishment of M/s. Abril Pharmaceuticals Private Ltd. Only some plant and machinery which could not have been purchased by the petitioner from the market were taken on lease. The entire plant and machinery were not taken on lease. Since the petitioner was establishing its new business, it was in need of plant and machinery and since the nature of business was similar, it could not have been held to be continuation of the business carried out by the previous tenant of the premises. The finding that the petitioner has taken over the establishment of M/s. Abril Pharmaceuticals Private Limited is incorrect. The employees of the previous establishment have been reemployed by the petitioner and were not taken by it. M/s. Abril Pharmaceuticals Private Limited and petitioner company are different and distinct entities and none of the Directors are the same. Both Companies have different memorandum and article of association. Reliance has been placed on the decisions of the apex Court in State of U.P. v. Labhchand, AIR 1994 SC 754 , of this Court in Bhaiyalal Shukla v. Union of India, 2004 (4) MPLJ 458 and order dated 13.12.2010 passed in W.P. No.14080/2010 (Shri Govind Ram Shekh Saria Institute of Technology and Science and Another v. Shri Arun Kumar and Another). 10. Reply has been filed by the respondent and learned counsel for the respondent has submitted that the impugned order dated 20.10.2005 is an appealable order in view of provisions of section 7-I (I) of the Act, 1952. After dismissal of the review by order dated 31.3.2006, the original order dated 20.10.2005 became appealable. Since the petitioner has alternate remedy of appeal, the petition is not maintainable. It is further submitted that originally, the provisions of the Act were applied to M/s. Abril Pharmaceuticals Private Limited with effect from 1.5.1986. It remitted amount of provident fund belatedly for the period from May, 1986 to February, 1994 hence an amount of Rs.1,83,934/- was levied as damages under section 14-B of the Act, 1952. On 15.12.1995 the lessor company leased out the establishment to the petitioner by executing a lease agreement. It remitted amount of provident fund belatedly for the period from May, 1986 to February, 1994 hence an amount of Rs.1,83,934/- was levied as damages under section 14-B of the Act, 1952. On 15.12.1995 the lessor company leased out the establishment to the petitioner by executing a lease agreement. Despite having taken over possession of the lessor company, the petitioner did not implement provisions of the Act and committed default in payment of provident fund dues. Action was hence taken against it under section 7-A of the Act by giving it adequate opportunity of hearing. By order dated 4.4.1997, the amount of provident fund was determined. As directed by this Court by order dated 31.3.1999 application of petitioner filed under section 7-A(4) of the Act was decided and rejected. After setting aside of the said order by this Court, fresh inquiry was held after affording opportunity of hearing to the petitioner and the impugned order was passed. 11. It is also submitted that the petitioner on 15.12.1995 firstly obtained plant, machineries, office equipments and furniture and fittings on lease by executing lease agreement dated 15.12.1995. As per the agreement, the petitioner was required to execute a separate agreement for taking the premises on lease from the owner. Accordingly, petitioner executed a rent note on 20.12.1995. The status of the petitioner, however, continued to be as a lessee. The petitioner is lessee of the lessor company and as such it is the continuing establishment of lessor company. Since petitioner's establishment is continuing the old establishment, it cannot be said to be newly set up establishment and is not entitled for infancy benefits as provided under section 16 of the unamended Act. The strength of employees of the petitioner establishment is of no consequence in view of provisions of section 1(5) of the Act. 12. No other point was pressed by the learned counsel for the parties. They have been heard and the record has been perused. 13. Firstly, it would be proper to advert to the objection raised by the respondent as regards availability of alternate remedy to the petitioner for challenging the impugned order dated 20.10.2005 by preferring an appeal under section 7-I of the Act. While it is true that an appeal against the said order would lie before the appellate authority but it is to be observed that the petition has been pending for past 18 years. While it is true that an appeal against the said order would lie before the appellate authority but it is to be observed that the petition has been pending for past 18 years. The same was admitted for final hearing by order dated 7.9.2007. At this stage of proceedings, it would not be justifiable to relegate the petitioner to avail the alternate remedy as provided under the Act. The petition having been admitted despite availability of alternate remedy and coming up for hearing after a long time deserves to be decided on merits. In any case, exercise of jurisdiction under Article 226 of the Constitution of India is a matter of discretion depending upon the facts of the case and despite availability of alternate remedy, the same can be exercised. In my opinion, in the present case despite availability of alternate remedy to the petitioner, the petition ought to be decided on merits. The contention of learned counsel for the respondent as regards availability of alternate remedy to the petitioner is hence rejected. 14. The contention of the petitioner has always been that it is a new establishment and is not a continuation of the old establishment M/s. Abril Pharmaceuticals Private Limited hence is entitled to the benefits of infancy provision as contained in section 16 of the Act. The question for determination is hence whether M/s. Abril Pharmaceuticals Private Limited is a continuation of M/s. Abril Pharmaceuticals Private Limited. The principles as regard determination of such a question maybe considered. In Union of India and Others v. A.S. Amarnath, 1998 (9) SCC 724 , it has been held by the apex Court as under :-- "On these facts, the High Court has noted that it could not be held that the business of the old firm was continued by the respondent in the new firm wherein the partners were entirely different and even though some of the workmen might have been employed by the new firm, it cannot be said that the old business was continued by the new concern. It was also observed that merely because the new entity is utilising the licence exploited by the old firm and the name of the new firm is identical with the name of the old firm and items of machinery utilised by the old firm have been availed of by the new concern, it cannot be said that the said business had continued and therefore, the claim of infancy benefit was not available to the new concern. These are pure finding of facts based on relevant evidence. In our view, it requires no interference under Article 136 of the Constitution." 15. In Regional Provident Fund Commissioner and Another v. Dharamsi Morarji Chemicals Company Limited, 1998 (2) SCC 446 , the apex Court held as under :-- "4. It is true that if an establishment is found, as a fact, to consist of different departments or branches and if the departments and branches are located at different places, the establishment would still be covered by the net of section 2-A and the branches and departments cannot be said to be only on that ground not a part and parcel of the parent establishment. However, on the facts of the present case, the only connecting link which could be pressed in service by the learned counsel for the appellant was the fact that the respondent-Company was the owner not only of the Ambarnath factory but also of Roha factory. On the basis of common ownership it was submitted that necessarily the Board of Directors could control and supervise the working of Roha factory also and therefore, according to the learned counsel, it could be said that there was interconnection between Ambarnath factory and Roha factory and it could be said that there was supervisory, financial or managerial control of the same Board of Directors. So far as this contention is concerned the finding reached by the High Court, as extracted earlier, clearly shows that there was no evidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial control. Nothing could be pointed out to us to contraindicate this finding. So far as this contention is concerned the finding reached by the High Court, as extracted earlier, clearly shows that there was no evidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial control. Nothing could be pointed out to us to contraindicate this finding. Therefore, the net result is that the only connecting link which could be effectively pressed in service by the learned counsel for the appellant for culling out interconnection between Ambarnath factory and Roha factory was that both of them were owned by a common owner, namely, the respondent-Company and the Board of Directors were common. That by itself cannot be sufficient unless there is clear evidence to show that there was interconnection between these two units and there was common supervisory, financial or managerial control. As there is no such evidence in the present case, on the peculiar facts of this case, it is not possible to agree with the learned counsel for the appellant that Roha factory was a part and parcel of Ambarnath factory or it was an adjunct of the main parent establishment functioning at Ambarnath since 1921." 16. In M/s. Narmada Movie Enterprises v. Union of India and another, 2000 (1) MPJR SN 35, it was held by this Court as under :-- "The infancy benefit is granted to new establishment to give them breathing time and, there, whenever the old establishment dies giving rise to a new establishment, the question of fresh infancy benefit would always arise and it is wholly irrelevant in that context that infancy benefit was granted to the earlier establishment. The same infancy benefit would be available for a new owner who sets up his own new establishment in place of the old establishment of the old owner. Therefore, in the instant case it has to be held that Annex. A the order passed by the authority proceeds on a confusion that this was a mere change of ownership and management when in fact it was change in entire indentity of the employer, who had no continuity of the oid employer, and which would, therefore, give rise to a totally, new establishment. A closure or temporary cessation of the old business does not make it non-existence. A closure or temporary cessation of the old business does not make it non-existence. One has to examine the real position; if the old business has been really wound up, and it ceased to exist before the commencement of the new one, there is no question of any continuity. In the instant case the old business was completely wound up for all practical purposes and there was interval of atleast three years between the winding up of that business and the commencement of the new one. It is also to be noted that the petitioners did not employ the workers employed by the earlier owner. The whole set up was new and in fact it was a new establishment. It is impossible to hold that the new business is a continuation of the old one; or there is any connection between the two. The interval between the closure of the establishment by the previous owner and establishment of the new business by the purchaser will not be a deciding factor in considering the question as to whether there has been continuance of an establishment or not. Once there is a closure of the old establishment, whatever may be the interval of time between the closure by the previous owner and starting of the new establishment by another management. It must be taken that the establishment Started was a new one and that it is not a continuance of the old establishment. Everything depends on the facts of the individual case. If, in a particular case, it appears that the new establishment is not genuinely such but is only an old one formally resuscitated in order to avoid the legal obligation, it is always open to the Court to hold that it is the old establishment which is substantially continuing, and that the liability to contribute must be affixed to the apparently new form also. But, where, in reality, the old establishment has come to an end, and there is a new establishment, this establishment is entitled to infancy protection in its own rights, even if it happens by coincidence to have employed a large part of the personnel of the previous establishment. In the matter of Shambhudayal Twarl V. R.P.F. Commissioner, Indore 1977 Labour & Industrial Cases 1131, this Court has held that a distinction has to be made between a similar establishment and the same establishment. In the matter of Shambhudayal Twarl V. R.P.F. Commissioner, Indore 1977 Labour & Industrial Cases 1131, this Court has held that a distinction has to be made between a similar establishment and the same establishment. If the subsequent establishment is similar It would not be on that account a continuation of the earlier establishment. The infancy protection cannot be denied merely on the ground that the establishment continues to be similar. In fact what is required to be proved by the department, as the burden is on the department, that it is the same establishment continuing in the different cloak. Unless it is proved by cogent evidence that the new establishment is continuation of the old one, the infancy benefit cannot be denied." 17. In Senthilnathans Pharmaceuticals (supra), it was held by the Madras High Court that even if a new firm purchasing business starts the same in the same premises and purchases stock, furnitures etc. from the old firm and also employees some of the former employees then also it is entitled to infancy protection. It was held as under :-- "14. After hearing the rival submissions and after perusing the relevant records, I am of the opinion that there is considerable force in the submissions made by the learned advocate for the petitioner. According to me, the present case clearly comes within the purview of the decisions which I have referred earlier. However, the learned advocate for the respondent invited my attention to section 17B of the Act which speaks about liability in case of transfer of establishment and also to the provisions of Explanation to section 16(1) (d) which says, 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, placing reliance on those sections. The learned advocate for the respondent submitted that the present establishment is not a new establishment, and it is an old establishment being continued. I am unable to agree with the said argument of the learned advocate for the respondent. A careful analysis of the present case clearly goes to show that the establishment is a new one started by the petitioner and it has nothing to do with the old establishment which was closed. The ratio of the decisions referred supra will fully cover the present case." 18. A careful analysis of the present case clearly goes to show that the establishment is a new one started by the petitioner and it has nothing to do with the old establishment which was closed. The ratio of the decisions referred supra will fully cover the present case." 18. Various other decisions have also been relied upon by the learned counsel for the parties from which the principle which emerges is that the test for establishing whether the old establishment can be considered as the new establishment also would depend upon the facts of each case. Even if business is carried out at the same premises using some plant and machinery of the former establishment and having some employees as common, it would not result in both the establishments being the same. If the earlier establishment has been closed which closure has been accepted and the land is leased to the new establishment along with plant, machinery and building and the same is not taken over as a going concern, it cannot be said that there has been any continuity between the old and new establishment. Even if business is purchased, the position would remain the same. Similarity in the establishments would also not be same. 19. The relevant provisions of the Act, 1952 for the purpose of this petition may also be noted. They are as under : "Section 1: Short title, extent and application. [(1) This Act may be called the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.] (2) It extends to the whole of India ***. [(3) Subject to the provisions contained in section 16, it applies-- (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which [twenty] or more persons are employed, and (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. [(4) Notwithstanding anything contained in sub-section (3) of this section or subsection (1) of section 16, where it appears to the Central Provident Fund Commissioner, whether on an application made to him in this behalf or otherwise, that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment, he may, by notification in the Official Gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement.] [(5) An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty.] 17B. Liability in case of transfer of establishment. --Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision Of this Act or the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be, in respect of the period up to the date of such transfer : Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer." 20. The respondent has recorded a finding that the petitioner is not entitled to the benefit of section 16(1) of the unamended Act, 1952 and has held that it is the continuation of the earlier establishment i.e. M/s. Abril Pharmaceuticals Private Limited. However, when the admitted facts of the case are seen it is evident that the previous establishment M/s. Abril Pharmaceuticals Private Limited was closed down as has been recorded in the impugned order itself. Under the lease deed dated 15.12.1995 (Annexure P/7), the plant and machinery / office equipments and furniture and fitting were leased out to the petitioner on a monthly rent of Rs.21,000/-. Thereafter, by lease deed dated 20.12.1995 (Annexure P/1), the petitioner took the premises on rent from the owner Hukum Singh Sunderlal Verma at Rs.3,000/- per month. Under the lease deed dated 15.12.1995 (Annexure P/7), the plant and machinery / office equipments and furniture and fitting were leased out to the petitioner on a monthly rent of Rs.21,000/-. Thereafter, by lease deed dated 20.12.1995 (Annexure P/1), the petitioner took the premises on rent from the owner Hukum Singh Sunderlal Verma at Rs.3,000/- per month. The petitioner thereafter obtained registration certificate (Annexure P/2) in its own name from the Central Excise Department. It also obtained license to manufacture for sale of drugs other than specified drugs. It was separately registered under the Shop and Establishments Act, 1958. It was also registered under the Central Sales Tax Act. The business of M/s. Abril Pharmaceuticals Pvt. Ltd. was not transferred to the petitioner. As per the respondent itself, only five out of the employees of M/s. Abril Pharmaceuticals Pvt. Ltd. have been employed by the petitioner. The Directors of the petitioner company are entirely different than the Directors of M/s. Abril Pharmaceuticals Pvt. Ltd. New machinery has also been purchased by the petitioner. It has obtained permanent registration certificate from District Industries Centre. 21. None of the license of the previous entity is being utilized by the petitioner which has obtained license of its own. Only the plant and machinery are being utilized by the petitioner without taking over the entire previous unit. The business of the previous unit hence cannot be said to have been continued by the petitioner. The control; financial, managerial and supervisory; of the previous unit and the petitioner unit is also entirely distinct and there is no interconnection between them. Entire identity of the previous unit has changed which is not being continued by the petitioner which is hence a new establishment. The entire setup of the petitioner is new hence it cannot be said that the previous entity and the petitioner entity are the same. The respondent has erred in holding that previous entity has transferred its establishment in favour of the petitioner hence the provisions of section 17(B) of the Act were not applicable and the petitioner was entitled to the benefit of infancy provision contained under section 16 of the Act. 22. In view of the aforesaid discussion, the respondent has erred in passing the impugned orders holding the petitioner not entitled for claiming the infancy benefits. The orders passed by them hence cannot be sustained and are accordingly quashed. 22. In view of the aforesaid discussion, the respondent has erred in passing the impugned orders holding the petitioner not entitled for claiming the infancy benefits. The orders passed by them hence cannot be sustained and are accordingly quashed. The petition is accordingly allowed.