K.J. Sengupta, J. - (1.) :- This writ petition is directed against an award dated 25th January 1999 published on 5th March 1999 passed by the learned First Industrial Tribunal being respondent No.3 herein in the reference case No. 1765- IR dated 9th November 1993. The Government on the issues referred the aforesaid case as follows: (A) Whether refusal of employment leading termination of service of Shri Kamalakanta Ghosh by M/s. Asiatic Oxygen Ltd. is justified. (B) What relief, if any, is he entitled to?
(2.) The short fact of the case is as follows: The Jalan Group of Companies appointed the respondent No.3 under the name of M/s Pennzol Gases by a letter dated 27th June 1985; he was initially posted at Secunderabad office. After joining thereat the workman concerned in terms of the letter of appointment was transferred from Secunderabad to Calcutta Office on or about 6th June 1986. On reporting to Calcutta office he was disputed the establishment of M/s Asiatic Oxygen Ltd. at Salkia, Howrah, which was and still is one of the group of the companies of the aforesaid group. He discharged his duty as welder in the said establishment and in fact he was treated to be an employee of the aforesaid establishment. This is established by the certificates and other documents issued by the appropriate officials of the Asiatic Oxygen Ltd. However, on 3rd September 1991 the workman respondent No.2 was removed from services without due recourse to law. In course of his employment Provident Fund facility or ESI benefit were not given to him. He also prays for the benefits of house rent allowances. Under those circumstances workman concerned raised an industrial dispute. The Labour Commissioner thus referred this matter to decide the aforesaid issues. The case of the company, the writ petitioner, is that the workman respondent was an employee of Pennzol Gases, which though, is a sister concern of writ petitioner, it has gigot separate legal entity with no connection and no relationship with the Asiatic Oxygen Ltd. The workman concerned was deputed on loan services for the requirement of the Asiatic Oxygen at the Salkia works unit of the writ petitioner. As such, the workman concerned had been rendering services till the time he failed to turn up in duty and he abandoned the worksite without any intimation. Therefore, according to the writ petitioner the workman respondent abandoned the services voluntarily. At no point of time he was an employee of the Asiatic Oxygen until his services were utilised on being deputed by Pennzol, at Salkia office.
(3.) On the aforesaid facts and circumstances the learned Tribunal considering evidence, both documentary and oral, held that there was an employer and employee relationship in between the aforesaid workman and M/s Asiatic Oxygen Ltd. and that as the workman worked in that concern continuously, M/s Asiatic Oxygen Ltd. had the statutory obligation for the compliance of the mandatory provisions of Section 25(A) of the Industrial Disputes Act, 1947. He also held upon analysis of evidence and proof that writ Petitioner Company had refused employment in its establishment with effect from 3rd September 1991 without compliance of the mandatory provision of Section 25(F) of the Industrial Disputes Act, 1947.;