The Odisha
G a z e t t e
EXTRAORDINARY
PUBLISHED BY AUTHORITY
No. 311 CUTTACK, SATURDAY, FEBRUARY 1, 2025/MAGHA 12, 1946
LABOUR & E.S.I. DEPARTMENT
NOTIFICATION
The 24th January 2025
S.R.O. No. 123/2025—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14
of 1947) the Award, dated 30th December 2024 passed in I.D Case No. 26 of 2012 by the Presiding
Officer, Industrial Tribunal, Bhubaneswar to whom the industrial dispute between the Management
of M/s Hindalco Industries Ltd., P.O. Hirakud-768016, Dist. Sambalpur and its workmen, represented
through General Secretary, Hindalco Staff Association., At/P.O. Hirakud-768016, Dist. Sambalpur
was referred for adjudication is hereby published in the schedule below :—
SCHEDULE
BEFORE THE INDUSTRIAL TRIBUNAL, BHUBANESWAR
INDUSTRIAL DISPUTE CASE NO. 26 of 2012
Dated the 30th December 2024
Present :
Shri Benudhar Patra, LL.M.,
Presiding Officer,
Industrial Tribunal,
Bhubaneswar.
Between :
The Management of —
. . First Party
M/s Hindalco Industries Ltd.,
P.O. Hirakud-768016,
Dist. Sambalpur.
AND
Its workman,represented through
. .
Second Party
General Secretary,
Hindalco Staff Association,
At/P.O. Hirakud-768 016,
Dist. Sambalpur.
2
Appearances :
Shri N.K. Mishra, Sr. Adv. & Associates
. .
For the 1st party
Shri Sushanta Dash, Advocate
. .
For the 2nd party
AWARD
The Labour & E.S.I. Department of Government of Odisha, having satisfied that there
exists an industrial dispute between the above-named parties, have referred the following schedule
of dispute for adjudication by this Tribunal vide Order No. IR-ID- 89/11/3687/LESI dated the 10th
May 2012 :—
SCHEDULE
“Whether the demand of the Hindalco Staff Association for service weight age to be
given as increment less than 5 years - 02 increment, 05 years to 10 years
service - 04 increment, 10 years to 15 years - 06 increment,15 years to. 20 years
service - 08 increment, 20 years and above - 10 increment is legal and/or justified?
If so what should be the details.”
2. Pursuant to the above reference, on the second party’s filing claim statement, the
management filed its written statement to which the second party also filed a rejoinder. Before
narrating the claim as put forth by the second party in its claim statement as well as rejoinder and
the counter reply of the management in its written statement, a little background facts leading to
culmination of the present reference need mention. The General Secretary, Hindalco Staff
Association, Hirakud submitted a 41 point charter of demands to the management with an ultimatum
to the effect that in case of non-fulfilment of such demands the Union would go on a strike
w.e.f. the 6th April 2010 with information to the labour machinery and on receipt there of initiatives
were taken by the labour machinery by asking both the parties to attend a joint enquiry on the 31st
March 2010 and in pursuance thereof as the management sought for time seeking guidelines from
the Corporate Office, the Union agreeing with the view postponed their strike from 6th April 2010.
Thereafter the move of the Union for strike having been challenged by the management before the
Hon’ble Court in W.P.(C)No. 6352 of 2010, the Hon’ble Court passed an interim order 5th April
2010 restraining the Union to resort to strike w.e.f. the 6th April 2010 until further orders and later on
the said W.P.(C) having been dismissed by the Hon’ble Court with a direction to the labour machinery
to take necessary action on the charter of demands of the Union, on being noticed, the management
replied that as against the orders it has filed a review petition before the Hon’ble Court. But later on
the Review Petition was also dismissed. The management thereafter despite notice, did not attend
the conciliation but submitted its written views to the effect that the members of the Union being
not ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act, the same may be
determined first before entering into any discussion on the other issues as contained in the charter
of demands. The Union, thereafter took an initiative to admit the revised 23 point charter of demands
submitted on its behalf on the 14th march 2011 and accordingly Form-D was issued for conciliation
on the 23 point charter of demands of the union. The management remained firm in its views and
did not show any interest for negotiation on the 23 point charter of demands on the pretext that the
disputants are not ‘workmen’, hence conciliation of the disputants having been failed, the reference
as in the schedule surfaced for adjudication by this Tribunal.
3. In the above premises, the second party filed its claim statement stating, interalia, that
the first party management M/s HINDALCO INDUSTRIES LTD., Hirakud (for short ‘HINDALCO’) is
a company registered under the Indian Companies Act,1956 and was incorporated in the year
3
1958 having worldwide operations in 13 countries with a workforce of 34,000 employees working
in its 51 units. The Hirakud works of the said company was formerly known as Indian Aluminium
Co. Ltd.(for short ‘INDAL’). It is stated that in so far the Standing Orders of INDAL, Hirakud Power,
Hirakud is concerned, the same applies to workmen covered under the Wage Roll as well Salary
Roll of the Smelter Plant and so also to the members of the disputant Union who are working in the
Captive Power Plant. It is pleaded that in order to safeguard the interest of the workers engaged in
Hirakud Works of the company and to have better bargaining power on behalf of the workers, in the
year 1961, a registered Trade Union, namely, “INDAL EMPLOYEES’ UNION” was formed; registered
under the Trade Unions Act,1926 and declared as a recognised Union. It is stated that the
management used to enter into different Long Term Settlements (for short ‘LTS’ ) with the recognised
unions including the present disputant-union with regard to various service conditions/benefits in
addition to the terms as enumerated in the Certified Standing Orders of the Company in relation to
the Captive Power Plant. Specifically, It is asserted that the members of the disputant union, such
as Junior Assistants, Assistants, Senior Assistants, Asst. Foremen, Foremen, Senior Foreman,
Junior Supervisor, Supervisor, Senior Supervisor, ASG, DSI, SG, Pharmacist, Nursing Technicians
were members of the existing registered unions and were enjoying the benefits in terms of the LTS
with the management till 1996, which was in operation till 1999 in so far as Smelter Plant is concerned
and LTS of 1996 for Captive Power Plant which was in operation till 2001 and while the matter
stood thus, in the year 1997-98 the management with an ill intention and in order to curb the union
activities and so also to debar a majority group of workmen/employees from the purview of the
benefits under the LTS, categorised the Group of workmen as “Management Staff Category” and
accordingly issued individual letters to those group of workmen/employees indicating therein that
though there will be no change in their designation, they will no longer be governed by the LTS and
under coercion and pressure got their declaration in printed papers to the effect that they would
abide by the said terms and conditions as appended to the said letter. According to the second
party, such conduct of the management amounts to “unfair labour practice” as defined under
Section 2(ra) read with various terms of the Fifth Schedule of the Act and is also illegal owing to the
fact that the benefits under the LTS which the workmen were enjoying since inception of the plant
till 1997 were changed without complying with the provisions of Section 9 A of the Act and the same
amounts to “change of service conditions”. Consequently, it is pleaded, the management did not
recognise the services offered by the workmen in Grade 25 to 30, though the said group of workmen
used to carry out their job responsibilities effectively and started torturing them by asking them to
work beyond official duty hours without payment of any extra remuneration for such duty. As a
result of the above, the workmen in Grade 25 to 30 formed a Trade Union on 13th September 2009,
namely, ‘HINDALCO STAFF ASSOCIATION’(i.e. the present disputant Union) and on proper
application the Union was registered under the Trade Unions Act,1926 and assigned with the
Registration No. 286-SBP, dated the 18th February 2010 and before issuance of such Registration
Certificate in favour of the disputant union a discreet enquiry having been made by the Labour
Authority a report was submitted to the concerned authority to the effect that the Junior Assistants,
Assistants, Senior Assistants, Asst. Foremen, Foremen, Senior Foremen, Junior Supervisor,
Supervisor, Senior Supervisor, Assistant Security Guard, Deputy Security Inspector, Security Guard,
Pharmacist, Nursing Technicians of M/s HINDALCO working in Smelter Plant and Power Plant
having no executive functions are workmen and members of the said Union. Thereafter on 11th
March 2010 the second party union submitted a 41 point charter of demands along with a strike
notice with a copy to the labour machinery intimating that unless the demands were fulfilled by the
4
management the second party members would resort to a strike w.e.f. the 6th April 2010, whereupon
on notices being issued to both the parties by the D.L.O., Sambalpur to appear for a joint enquiry
on the 31st March 2010, the representative of the management appeared and sought for an
adjournment, accordingly the union postponed the proposed strike and the joint enquiry was posted
to 16th April 2010 . It is stated, the management in the meantime without looking to the genuine
demands, approached the Hon’ble Court in W.P.(C) No. 6352 of 2010 challenging the statutory
notice of the D.L.O., Sambalpur for joint discussion and cancelling the Certificate of Registration
issued in favour of the second party union and could be able to obtain an exparte interim order
restraining the members of the Union from resorting to strike w.e.f. the 6th April 2010 until further
orders. The said writ petition was ultimately dismissed by the Hon’ble Court on the 9th December
2010 with an observation that the disputant union has got membership not only from the Supervisory
Staff but also from other categories such as Junior Assistants, Assistants, Senior Assistants, Asst.
Foremen, Foremen, Senior Foremen, Junior Supervisor, Supervisor, Senior Supervisor, Assistant
Security Guard, Deputy Security Inspector, Security Guard, Pharmacist, Nursing Technicians with
a direction to the Labour Commissioner, Odisha, Bhubaneswar to proceed further in the matter of
grant of recognition to the 7 office bearers of the disputant union as “Protected workmen”. One
review application bearing No. 12 of 2011 was preferred by the management as against the judgment
passed in W.P.(C) No. 6352 of 2010, but the same was also dismissed vide order dated the 4th
February 2011 of the Hon ‘ble Court. Thereafter the second party insisted upon conciliation on its
revised 23 point charter of demands dated the 14th March 2011, but the management remained
firm in its views and contended that since the members of the second party union are not ‘workmen’
within the meaning of Section 2(s) of the Act, the 23 point charter of demands cannot be conciliated
upon by the labour machinery and accordingly conciliation of the disputes was ended in failure and
consequently the disputes were referred to this Tribunal for adjudication.
The categorical assertion of the second party union with regard to the status of its members
is that as per the settled position of law, nature of job is the decisive factor whether to bring or not
to bring an employee under the definition of ‘workmen’ as defined under Section 2(s) of the Act, It is
the consistent stand of the second party union that all its members have been discharging manual
and/or clerical nature of jobs. The second party union admitted that even if the Grade 25 to 30
employees were styled as Local Management Staff in the year 1997-98, yet there was no change
in their nature of job, so also the designation as prevalent then and further as per the amended
provision of Section 2(s) of the Industrial Disputes Amendment Act, 2010, the wage ceiling as
prescribed under Section 2(s) has been enhanced to Rs.10,000 from Rs.1,600 and at the time of
formation of the present union there were 358 employees who were members of the said union
and out of the same 269 employees were drawing salary below Rs.10,000 on the said date. From
the month of July 2010 without any notice, and without any adherence to legal provisions enshrined
under Section 9-A of the Act the management introduced “Job Band Grade” 14 to 12 in place of
Grade 25 to 30 employees, who are all members of the present disputant union and in this regard
an industial dispute at the instance of the present disputant union is pending conciliation before the
D.L.O., Sambalpur. It is stated that in earlier days, the induction grade was Grade 3 in Smelter
Plant and after the last LTS dated the 22nd July 2009 the said induction grade has been upgraded
to Grade 6 and further the grades of the Operatives have been substantially upgraded as per
Clause 8 of the said Tripartite Settlement, in asmuchas, the Junior Operator/Tool Boy who is/was
working in Grade 6 is to be upgraded to Grade 10 and likewise as detailed in the said clause of the
LTS. It is stated that there has been a drastic revision of grades of the operatives in view of change
of technology and enhancement of the capacity from 30 KTPA to 161.4 KTPA in Smelter Plant and
5
from 67.5 M.W. to 367.5 M.W in Power Plant, but the employees in Grade 25 to 30 have remained
as it is as the management has neither compensated nor provided any benefit after change of the
technology though they were enjoying such benefits under various agreements till 1997. On the
merit of the claim, it is pleaded that while the length of service is being duly considered for giving
increments to the management staff i.e. Grade 31 and above, the members of the second party
are deprived of such benefits/discriminated in comparison to their counterparts i.e. Wage Roll
employees as well as management staff , who are working in higher post/grade. It is stated that
the enhancement effected into the remuneration of operatives, who are much below the Grade 25
staff, over the same period of service, is much more than that of the staffs, for which a minimum
of 2, 4, 6, 8 and 10 increments is necessary into different service length from 0-5 to 20 and above
to make good the loss suffered by the staffs of Grade 25 to 30 over the long period. The second
party union therefore, asserted that the firs party being financially capable, should reinduct the
policy of service weightage for staffs in Grade 25 to 30 .
4. The first party contesting the ‘lis’ filed its written statement. At the outset, it has challenged
the maintainability of the reference on the ground that the office bearers and members of the
second party Union do not come within the scope and ambit of ‘workman’ as defined under Section
2(s) of the Act, inasmuch as, not only by the terms and conditions of their appointment but the
nature of jo performed by each of them is supervisory in nature and each of them is drawing
wages more than Rs.10,000 per month. It is stated that the supervisory cadre of employees like
the members of the second party enjoy uniform service conditions throughout the country in all the
similar units like that of the unit of Hindalco at Hirakud and the services of such type of employees
are transferrable to any of the units throughout the country as per the contract of service conditions
and on the face of the above the demand made by the second party union in isolation of other units
being contrary to the contract cannot be entertained; the same being incompetent to be adjudicated
upon.
It is stated that the non-workmen supervisory staff are not governed by the Standing Orders
namely, the Standing Orders of Wage Roll employees, Standing order for Salary Roll employees
and the Standing Orders of M/s Indian Alumina Company Limited, Hirakud. Stating that the Grade
25 to 30 are no more in existence in its organisation, it is explained by the first party that the
employees in Grade 25 to 30 having voluntarily opted to come over to the category of Local
Management Staff (LMS) and subsequently accepted and acknowledged the terms and conditions
out of their free will and volition, it is not correct to say that the classification of workmen are same
as has been classified in the Certified Standing Orders meant for Wage Roll as well as Salary Roll
employees of Smelter Plant and the same is made applicable to the members of the second party
union. Referring to the word “staff member” as defined under Clause-3(b) of the Standing Orders
for Salary Roll employees and sub-section (i) of Section 2 of the Industrial Employment (Standing
Orders) Act,1946, it is asserted that the Standing Orders by no stretch of imagination can be said
to be applicable to the second party members. It is the categorical stand of the first party that the
members of the second party were never part of the LTS of Hirakud Unit and never enjoyed the
benefits under the LTS prior to 1997 and it is not at all correct to say that the management with an
ill intention and in order to weaken the union activities, so also to debar a majority group of workmen
from the purview of benefits under the LTS had adopted such a tactics and got their declaration
signed under coercion and pressure, accordingly the unfair labour practice as referred to by the
second party union is stated to be a motivated stand. It is also pleaded that the D.L.O. in his
verification report has clearly mentioned that the office bearers and the members of the second
party union are supervisory staff and they are not the members of any other existing registered
6
Trade Unions and so observing certified that they could apply for registration of the Association
under the provisions of the Trade Unions Act. It is specifically averred that the members of the
second party are employees under the job band 14, 13 and 12 and are guided by separate rules
and terms and conditions of their appointment since 1997. It is stated that in the present structure
of employees there is no such Grades 25 to 30 in existence and all the Grades 25 to 30 have been
merged in job band 14, 13 and 12 since 2010 an consequently their designtions have been renamed
as Jr. Engineer, Jr. Officer, Asst. Engineer, Asst. Officer, Dy. Engineer, Dy. Officer in place of
Jr. Supervisor, Supervisor, Jr. Assistant, Sr. Assistant and Sr. Supervisor, respectively. That apart,
it is pleaded, the comparison between operators and supervisory personnel is not acceptable, as
because the operators are doing manual labour in much hard environment than an employee
under job band 14 to 12. Further assertion of the first party is that the category of employees’
increments is based on the cost to company basis (CTC) and the total percentage of increase is
distributed amongst various components of CTC in such a manner that 45% of the increment is
towards basic salary and the rest of the increments is towards other allowances and reimbursements
(without housing). This policy governs both the supervisory as well as to the managerial cadre of
employees uniformly in all the units of the company in India. The company determines salary of
each employee on the basis of cost to company. Giving a comparison table in this regard, it is
asserted that the gross salary of the employees has considerably increased during the period
from August 1997 to June 2012, whereas almost during the same period the variable dearness
allowance (VDA) has gone up a rise to the extent of 391%. Adverting to the merit of the claim, it is
pleaded in the written statement that the operative category of employees and the local management
employees perform completely different nature of job and the terms and conditions of their services
are also completely different, hence the demand for similar kind of increment as available to the
workmen category of employees is ex-facie untenable and unacceptable as both the categories
stand in different footings with regard to their nature of job performance and other terms and
conditions of service attached to particular category of employee. Citing example of a Wage Roll
Employee,it is pleaded that while the average basic of such an employee of the Smelter and the
Power Plant is Rs. 3,135 and Rs. 2,547, respectively, the average basic of a job band 14 (erstwhile
Grade 25 to 30) is Rs. 8,911 which is near about three times more than the average basic of a
Wage Roll employee and consequently the demand of the union as claimed under the reference
besides being baseless is not admissible.
5. Consequent upon filing of the written statement, the second party union has filed a
rejoinder almost reiterating its stand taken in the claim statement and further disputing the averment
of the first party that the members of the disputant union enjoy uniform service condition through
out the country in all similar units like that of the unit at Hirakud. It is stated that the first party
management has another Smelter Plant at Renukoot and Captive Power Plant at Renusagar in
the State of Uttar Pradesh and the workmen/employees of similar grades are being treated differently
with better pay and perks. The averment of the first party that there is no transfer of employees of
Grade 25 to 30 is simply an eye wash to mislead the Tribunal. As regards the averment of the first
party that Grade 25 to 30 are not in existence because of the second party members’ opting for
induction into the LMS category out of their own volition, it is stated that when the first party tried to
change the grade, designation etc. of the second party members the disputant union and its
members strongly objected to the same, as a result such grades as well as their designations
remained intact as befofe and the same are being reflected correctly in their monthly pay/salary
slips and as such it is false to assert that such a step was voluntary one on the part of the second
party members. It is also the specific stand of the second party union that its members are still
7
governed under the various Standing Orders of the Company, in as much as, the General Secretary
of the second party union has recently been charge sheeted under the INDAL Standing Orders.
The second party union feigned its knowledge regarding the so called Job Band 14 to 12, as
pleaded by the first party. Further, it is in the rejoinder that the issue regarding ‘protected workmen’
no more survives for consideration as the same has already been decided by the Labour
Commissioner by virtue of orders of the Hon’ble High Court and the same having not been
challenged by the first party has attained its finality. The second party denies the averment of the
first party with regard to its plea that increment of these categories of employees is based on cost
to company basis (CTC). Disputing the comparison, it is stated that the comparison ought to have
been made between the second party members in one hand and the employees covered under
the LTS on the other. Specifically it is averred in the rejoinder that the so called comparison between
the Wage Roll employees of the Smelter and Power Plant vis-a-vis Job Band 14 is totally concocted
and misleading.
6. Upon consideration of the pleadings of the parties, the Tribunal has framed the following
issues for determination :—
ISSUES
(i)
Whether the member of the second party-Association are “workmen” as
defined undre Section 2(s) of the I.D. Act ?
(ii)
“Whether the demand of the Hindalco Staff Association for service weight age
to be given as increment less than 5 years - 02 increment, 05 years to 10
years service - 04 increment, 10 years to 15 years -06 increment, 15 years to
20 years service - 08 increment, 20 years and above - 10 increment is legal
and/or justified ? If so what should be the details.”
7. The second party union, in order to substantiate its stand has examined four witnesses,
namely (1) Shri Ajit Kumar Singh, (2) Shri Mrutyunjaya Pattanik (3) Shri Ajay Prasad Mohanty and
(4) Shri Hema Chandra Pal and in addition thereto it relied on documents,which have been marked
as Exts. 1 to 44. The first party management, on the other hand, examined four witneees namely
(1) Jyoti Narayan Mishra (2) Nagesh Chandra Pal (3) Ravi Kumar Pandey and (4) Satyaprasad
Das as M.W. No. 1 to M.W. No. 4 and placed reliance on Ext. A to Ext. BF.
FINDINGS
8. Issue No. (i) — The moot question for determination under this issue is as to whether
the members of the second party are ‘workmen’ within the meaning of Section 2(s) of the Act.
Before entering into any discussion on the issues, the factual backdrop of the dispute, as
it emerges from the pleadings as well as admitted by the parties,needs little reference. In the
context, it may be taken note of that the disputants involved in the ‘lis’ were initially under the
employment of M/s Indian Aluminium Company Limited (INDAL) and were enjoying all the benefits
meant for industrial workers, inasmuch as, they were guided under the Certified Standing Orders
as well as covered under the Long Term Settlements (LTS) enterd into between the management
and the Unions. During the year 1997-98 the management of INDAL formed a new cadre of
employees as ‘Management Staff Category’, otherwise known as ‘Local Management Staff’ (LMS)
with certain benefits at par with the Higher Management Staff and as a consequence thereof the
disputants concerned in the reference were all brought to the said cadre where they continued
with the benefits attached to the said Cadre till the first party took over the management of
8
M/s INDAL in the year 2005 and also thereafter till formation of the second party union i.e. in the
year 2009-10. It is also not in dispute that after formation of the union the disputants being unionised
made various demands on the ground that despite their rendering clerical/manual nature of duties
they have been deprived of benefits of LTS and there being no voluntariness on their part to come
over the Management Staff Category, the step taken in that regard is nothing but an unfair labour
practice, which ultimately culminated into the present reference.
9. with the above background, it has been argued by the learned senior counsel for the
management that there being sufficient evidence on record that the members of the second party
consequent upon their upgradation to the Management Staff Category are discharging supervisory
nature of duties with higher responsibilities they cannot be brought within the meaning of ‘workmen’
as defined undre Section 2(s) of the Act. In this connection, he referred to the cross examination
part of WW Nos.1, 2 and 3 as well as the evidence in chief and cross-examination of MW Nos. 1,
2 and 3 and submitted that the same would go to show the nature and character of the duties as
well as responsibilities discharged by the members of the second party and on that basis the
conclusion is inevitable that they are not covered within the definition of ‘workmen’.
On the other hand, it is submitted by the learned counsel for the second party union that
there being sufficient evidence on record that the members of the second party were/are
discharging manual/clerical nature of duties and at no point of time they were/are ever required to
perform managerial nature of duties the challenge on this score is not tenable. Contending that
designation and remuneration are not at all decisive factors to arrive at a conclusion on the status
of an employee, learned counsel cited the decisions of the Hon’ble Apex Court in the cases of
National Engineering Industries Ltd. Vrs. Shri Kishan Bhageria and others (AIR 1988 SC 329);
Ananda Bazar patrika (P) Ltd. Vs. workmen [(1970) 3 SCC 248]; Sharad kumar Vs. Govt. of NCT
of Delhi and others (AIR 2002-SC 1724); ArkalGovind Raj Rao Vs. Ciba Geigy of India Ltd., Bombay
(AIR 1985 SC 985); Bombay Dyeing and Manufacturing Company Limited Vs. R.A. Bidoo and
another (1990 Lab.I.C.116) as well as the decision of Hon’ble High Court of Orissa in the case of
Hotel Hans Coco Palms Vs. Milan Das (MANU/OR/0243/2012) and that of the Hon’ble Delhi High
Court in the case of Shri Muralidharan K. Vs. The management of Circle Freight [ (2007) III LLJ 953
(Delhi).
10. The rival stand of the parties on this issue needs a careful examination.
As it reveals from record, from the very inception of the dispute at the instance of the
second party union, the first party has been taking a stand that owing to the second party member’s
coming to the Management staff Category since long i.e. during the year 1997-98 when it was
M/s INDAL Management, they are no more within the coverage of ‘workmen’ as defined under
Section 2(s) of the Act.It is contended on behalf of the first party the members of the second party
after being categorised as LMS are discharging supervisory nature of job having managerial power
and thus they are outsed from the definition of ‘workmen’.
11. Before proceeding to analyse the evidence on record to determine the issue, it is felt
expedient to go through the statutory definition of ‘workman’ as assigned in the Act and so also to
keep in mind the consensus view/guiding principles propounded by the Hon’ble Apex Court as well
as different Hon’ble High Courts, as referred to by the learned counsel for the second party.
A bird’s eye view in this regard may be made to the definition of ‘workman’ as given in the
Act, which reads as follows :—
“workman” means any person (including an apprentice) employed in any industry to do
any manual, unskilled, skilled, technical, sales promotion, operational, clerical or supervisory or
9
any work for promotion of sales for hire or reward, whether terms of employment be express or
implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute,
includes any such person who has been dismissed, discharged or retrenched in connection with,
or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to
that dispute, but does not include any such person —
(i)
who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46
of 1950), or the Navy Act, 1957 (62 of 1957);or
(ii)
who is employed in the police service or as an officer or other employee of a
prison; or
(iii)
who is employed mainly in a managerial or administrative capacity; or
(iv)
who, being employed in a supervisory capacity, draws wages exceeding ten
thousand rupees per mensem or exercise, either by the nature of the duties
attached to the office or by reson of the powers vested in him, functions mainly
of a managerial nature.”
On perusal of the judgements cited by learned counsel for the second party-union, it is
found that the statutory definition of ‘workman’, as referred to above, has been interpreted by the
Hon’ble Apex Court as well as Hon’ble High Courts at different times and it has been held that in
order to bring a person within the fold of ‘workman’, the determinative factor is to see the main
duties of the person and not some work incidentally done, and not the designation assigned to the
person or remuneration attached to such designation. Further, it has been held by our own Hon’ble
High Court in the case of Hotel Hans Coco palm (supra) that once the relationship of employer and
employee is admitted by the employer and the employer submits that the employee is working in a
supervisory capacity and thus is excluded from the definition of ‘workman’ as provided under
Section 2(s) of the Act, then the onus is on the management to prove that the employee was in fact
not discharging the the manual duty. In view of the above, therefore, the Tribunal is required to
assess the evidence on record to find out the nature of duties which the second party members
are discharging so as to arrive at a conclusion on this point and in the case in hand there being no
dispute over the fact that the second party members were all initially covered under the definition
of ‘workmen’ but on their coming over to the management Staff Category they are no longer
continued to be members of the Trade Unions representing the Wage Roll/Salary Roll employees,
the burden shifts on the first party to establish such aspect.
12. To strengthen its stand on the status of the second party members, the first party relied
on the evidence adduced on this point by both the parties. On scrutiny of the evidence adduced
from the side of the first party, it transpires that out of the management witnesses examined on
this issue while MW 1 and MW 3, having joined the first party as LMS, are now continuing under the
H.O. Rolls, the other witness MW No. 2 is an LMS employee. Although in their testimony MW
Nos. 1 to 3 seem to have distinguished their nature of work as LMS from that of the Wage Roll/
Salary Roll employees, who borne in the ‘workman’ category and covered under the LTS, yet
during his cross-examination MW1 has stated to the following effect:
“No supportive document has been filed before the Tribunal on the managerial power of
LMS employees. The handling of work like leave pay, allowances, statutory compliance etc. of
Wage Roll employees is completely a manual work. The benefits such as Safety Shoes, Community
Centre fees, Death Relief Fund, Welfare Fund and Quarter rent which are meant for Wage Roll
employees, the same are also available to the LMS. It is not a fact the above benefits are not the
same to both the categories of employee i.e. LMS and Wage Roll employees. No document hasbeen
filed before this Tribunal to substantiate the above benefits, but I can produce it. It is a fact that in
support of suprervisory/ administrative capacity of the second party union members no document
has been furnished. I can produce documents to that effect if so directed. it is a fact that in so far
10
as production processes are concerned, the members of the second party union had no independent
decision making authority and in so far as HR related issues are concerned, the disputants had to
take decision according to their assigned responsibilities. It is a fact that I have not furnished any
document in support of the fact that I have exercised the supervisory/administrative authority while
I was in LMS category. Ext. 38, Exts. 39 and Ext. 40 are the Form 16 for the year 2012-13, 2013-14
and 2015-16 in respect of Bibhuti Bhusan Sahoo, P. Partha Sarathi and Ajit Kumar Rout, respectively.
It is a fact that as per Exts. 44 to 46, the above named disputants were categorized as ‘workman’
though the management has brought them under the LMS category.it is a fact that the LMS category
staff connot perform the role and responsibility of the H.O. category staff. I cannot say, without
referring to the records, if the disputants have no authority for independent correspondence with
the outside companies in connection with the affairs of the first party. I have never seen any document
disclosing independent correspondence between the disputants as representative of the first party
and outside companies. It is not a fact that the disputants as representative of the first party have
never visited other companies independently concerning with the affairs of the first party. It is a fact
that no document is filed to that effect, but if required the management will file documents concerning
thereto. It is not a fact that the disputants have no power to approve bills, expenses and vouchers
for the-subordinate staffs. l have seen those documents and can produce as and when required by
this Tribunal. It is not a fact that there is no such documents exists and deliberately I am stating
falsely. It is not a fact that I cannot show any document regarding the control and power of the
disputants over the recruitment and promotion of staffs. (The witness volunteers, he would submit
the relevant documents if required by this Tribunal).
Similarly, MW No. 2 on being cross examined by the second party with the issue in hand
has deposed as follows :—
Presently around 30 staff are working in the Accounts Department as stated in Para. 3 of
my evidence affidavit. I have no direct knowledge about the staff strength of the Accounts
Department and the category of employees at the relevant point of time when dispute arose between
the parties, but the nature’ of work of the Accounts Department has been the same as before. I
have also no idea as to what was the service condition of employees of the Accounts Department
at the relevant point of time and I cannot say if they were governed by the Certified Standing Orders
or Service Rules of the Company. I have no idea as to what was the service condition of the LMS
employees during the relevant period i.e. 2010. I have not seen any appointment letter of LMS
employees of the year 2010. It is a fact that the LMS employees were not vested with the powers
such as sanction of leave, recommending promotion, performance appraisal and disciplinary action
etc..
MW 3 also stated in his cross-examination as follows :—
It is a fact that I have not gone through the claim statement and the documents filed by the
second party before this Tribunal. I cannot say if the disciplinary action against two LMS employees
namely Yakub Badra and R.K. Tiwari have been taken based upon the certified standing Orders of
the first party. It is a fact that the chargeman in the Pot Room Section of the Smelter Plant of the fist
party management are covered under the Long Term Settlement. It is not a fact that the job
responsibility of the Chargeman is to do job planning. All the employees including the Chargeman,
LMS and H.O. Roll follow the SOP. It is a fact that the Chargeman and LMS retire at the age of 58
and the H.O. roll employees retire at 60 years of age. It is not a fact that the averment with regard
to the nature of duties of the LMS in the pot Room are primarilly administrative and managerial
functions are baseless for want of supportive documents.It is not a fact that the LMS employees in
the Pot Room have no indendent decision making authority and that they are perfoming manual,
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clerical and technical nature of job. The SOP has been prepared by the LMS and H.O. Roll staff
jointly, but no document is filed in support of that fact in thisTribunal. It is not a fact that I cannot file
document to establish the above statement. It is not a fact that no document is filed to that effect
as because there is no such document exists. It is not a fact that the LMS do not sanction the leave
but only forward the leave applications. It is not a fact that I cannot file the document to establish
that after being initialled by the LMS an employee’s leave application is sanctioned and availed the
leave without any pay deduction. It is a fact that Privilege Leave encashment is done by the H.O.
Roll officials after the application is forwarded by the LMS.
The second party-union, on the other hand, asserting that the disputants involved herein
are all discharging manual/clerical nature of duties adduced evidence in that regard through
WW 1, WW 2 and WW 3. WW 1 in his examination in chief has stated that all the 413 members
of the Union do the job of manual and/or clerical in nature and during cross-examination at Para.
37 he narrated the nature and of job performed by him under the management. Though WW 1 has
been cross-examined at length, yet the first party failed to elicit anything regarding the supervisory
nature of jobs performent by the LMS.
Likewise, WW No. 2 in his evidence in chief has stated that he never supervises any
subordinate employee’s job nor anybody reports him for duty, neither he sanctions any subordinate
employee’s leave nor calls for any explanation from any subordinate employee in case of any
dereliction of duty. He stated that he never performs any administrative/managerial job. It is in his
evidence that all the subordinate employees including him being in the lower hierarchy report to the
Section Head Mr. Bigyan Pattnaik, Manager, who exercises all supervisory as well as managerial
power over his work and he in the department works under the supervision and guidance of said
Bigyan Pattnaik. WW 2 further stated that all the Junior Assistants, Assistants and Senior
Assistants working in Grade 25 to 30 in the Captive as well as Smelter Plant of the First Party are
performing the same jobs which he is/was performing as a Clerk-cum-Typist and all the said jobs
are of manual as well as clerical in nature. Despite cross-examination by the first party, nothing
elicited from him as to the supervisory nature of job entrusted by the first party consequent upon
his upgradation to the LMS category.
WW No. 3 in Para. 4 of his evidence in chief has stated “I never supervise any subordinate
employee’s job nor any body reports for duty to me. Neither I sanction any subordinate employee’s
leave nor calls for any explanation from any subordinate employee, in case of any dereliction in his
duty. Me as well as my subordinate employees in the lower hierarchy report to our Section Head
Mr. Nand Lal, Assistant Manager-Stores, who reports to the Department Head Mr. Girish Abbott,
GM-Materials, who exercises all supervisory as well as managerial power over our work so also
the work of Mr. Nand Lal. All of us in our Department work under the supervision and guidance of
Mr. Nand Lal. His evidence from Paras. 9 to 46 is the narration about the nature of job or all the staff
members forming part of Grade 25 to 30 in various departments/sections of captive and power
plant of management wherein he pointed out that the disputants attached to such departments/
sections do most clerical and manual nature of jobs. Being cross examined, he also indicated
further as to his nature of duties. It is stated by him at Para. 61 — “It is a fact that in the Stores
Complex some contract labourers are being engaged. The works assigned to me includes unboxing,
labelling, tagging of the bins. It is not a fact that I decide regarding tagging of the bins on the
materials. The witness volunteers that prior to receipt by me of the materials the bins have already
been codified. At the time of receipt of the box containing materials I receive a hard copy of the list
12
of the materials contained in the box(invoice) and thereafter I prepare a material arrival report.
Thereafter, I physically verify the contents of the box by examining the material arrival report along
with the Receiving Section Operatives. It is a fact that the operatives are also provided with
computers.It is a fact that after receipt of the invoice I Physically go to the Receiving Section and
there I identify the box relating to the invoice with the help of the opertives. It is a fact that after the
box is opened I tally the contents of the box with the invoice. It is a fact that the operatives help me
in counting the number of the materials received. It is a fact that thereafter I prepare the Materials
Receipt Report. The witness volunteers that prior to preparation of Material Receipt Report by me,
the Users Deptt. verifies the technicalities of the materials. It is not a fact that the receipt of materials
and preparation of MRR is not a daily routine job. It is not fact that my job of physical verification of
received materials takes approximately 15-20 minutes. It is a fact that the other LMS staff of my
section do similar type of job relating to their LMS staff of my section do similar type of job relating
to their respective assignments. His evidence from Paras. 82 to 104 WW3 is a complete narration
about the nature of job performed by the LMS employees at various sections/departments. As
against the evidence in chief, the first party referred to Paras. 51 to 57, 59, 63, 65 to 68, 71 to 89,
91, 93 to 96, 98 and 101 to 104 of the cross-examination part of WW 3, but failed to elicit anything
from WW No. 3 to demolish his statement in examination in chief with regard to the supervisory
nature of duties performed by the LMS category.
13. On a careful examination of the evidence, as discussed above, the Tribunal finds it
difficult to hold that by virtue of upgradation of the members of the second party to the LMS category
they were/are discharging any supervisory nature of duties, so as to oust them from the definition
of ‘workmen’. Besides, there is no documentary evidence available on record where from an
inference can be drawn that consequent upon upgradation of the members of the second party to
LMS category, they were/are required to perform any supervisory nature of jobs. On the available
materials, therefore, the Tribunal is of the view that the first party has failed to establish that the
members of the second party after their upgradation to LMS category during the year 1997-98
were discharging supervisory nature of duties. Accordingly, the argument advanced by first party
that the members of the second party are not workmen is not acceptable.
The issue is answered accordingly.
14. Issue No. (ii) — The learned Senior Counsel representing the first party highlighting
the points raised on the maintainability of the reference in the written statement insisted that the
disputants having accepted/acknowledged the benefits of Management Staff Category for a period
of more than a decade without there being any protest before the erstwhile Management of INDAL
or any other forum, the demand raised by the second party before the present management claiming
status of ‘workmen’ for its members and considering their service weightage they be given
increments, as in the schedule of reference, is nothing but an attempt to disturb the entire equilibrium
in the industry of the first party; even though by elapse of time a lot of Wage Roll/Salary Roll
employees have been promoted to LMS category and several LMS employees have been promoted
to H.O. Roll category. According to the learned Counsel, on this ground alone the reference can be
said to be not maintainable. Attributing the conduct of the second party members to be fence-
sitters, it is contended by the learned Senior Counsel that the second party should not be allowed
to barge into Courts and cry for their rights at their convenience and in support of thereof has cited
the verdict of the Hon’ble Supreme Court in the case of U.P. Power Corporation Ltd. and others Vs.
Ram Gopal [ (2021) 13 SCC 225].
13
15. Per contra, the learned counsel representing the second party contended with reference
to the argument advanced on behalf of the first party that the second party members having
accepted/acknowledged the privileges of Management Staff Category for a’ substantial period they
are now estopped to raise their voice before the present management and on that ground alone
reference is not maintainable, it is submitted on behalf of the second party that in absence of
evidence to the effect that while bringing the members of the second party to the Management
Staff Category they were not given any opportunity to exercise their option, rather they were
compelled/coerced to give undertakings for the purpose and with a fear to lose their employment
they had furnished such undertakings, the plea advanced by the first party is not to be given much
importance, as the same amounts to an unfair labour practice on the part of the first party. Further
it is submitted by the learned counsel for the second party that it being the settled principle of law
that there is ‘no estoppel against the’ exercise of fundamental rights guaranteed under the
Constitution, the arguments laid in the matter of delay in raising the dispute by the second party
union is not a ground to negative the claim of the second party-union.
16. The rival submissions on the point, in my view, require a threadbare consideration of
the evidence/materials available on record before proceeding to examine the merit of the claim.
It transpires from the evidence of WW 1 when he deposed during his cross-examination
at Para. 24 that “Ext. A is the Xerox copy of correspondence from one A.K. Kar, the then Plant
Head, issued in my favour. This is my signature which is marked as Ext. A/1. Volunteers - I was
forced to put my signature thereon. I cannot say if any other staff who were holding higher post
than me have opted to be included in management category staff in the year 1997. We have never
moved the management in writing including me and others to the management category staff.”
Similarly, it is found from the evidence of WW No. 2 when he deposed in his cross
examination at Para. 20 and 21 that It is a fact that on 28th April 1998 my category was changed
from workmen category to management, staff category M-12 vide Ext. L. Prior to that I was a
member of INDAL Employees Union, Hirakud Power.The said Union still exists at Hirakud Power
Plant. It is a fact that besides the Employees’ Union another Workers· Union is in existence in the
name and style as “INDAL Hirakud Power Workers’ Union. I do not know if any dispute was raised
by INDAL Employees Union in between the period 1998 to 2010. It is a fact that in between that
period I personally raised my grievance orally before the then HR Manager of the Management in
the year 1998. Though the HR management gave assurance to take action on my grievance, no
action was taken by the management. It is not a fact that at no point of time in between the period
1998 to 2010 I have never raised my grievance before any of the Authorities or the HR Manager of
the management. I have not initiated any proceeding in any.forum against.the inaction of the
management.It is a fact that in between 2005 to 2010 after the INDAL was taken over by Hindalco,
no dispute relating to Ext. L was raised before the management or any labour machinery.
Coming to the evidence of WW No. 3, it is found from his evidence when he deposed
during his cross-examination at Para. 52 that It is a fact that the long term tripartite settlements
were binding on the workmen category of employees only and not the officers and management
staff. On being confronted one document, the witness admitted the same to have been supplied to
him during re-organisation of the category of employees. The same is marked here as Ext. AB. It
is a fact that vide Ext. AB, I was placed in Management Staff Category in Grade-M-12. It is a fact
that Ext. AB contains a lause that I will no longer be governed by the Union-Management
Agreements. It is a fact that I put my signature on Ext. AB on 26th August 97 towards my acceptance
14
and affirmation. The witness volunteers that I was compelled to sign on Ext. AB and that was given
the impression that the terms and conditions of my service will not be changed thereby. It is a fact
that at that time I had never lodged any complaint in writing before any Authority regarding the said
compulsion by the management. The witness volunteers that I did not give anything in writing
before any authority out of fear of harassment. It is a fact that in the year 1997 the management
was of INDAL.
17. On a bare perusal of the evidence, as discussed above coupled with documentary
evidence Ext. A, Ext. AB and Ext. L, as indicated by the witnesses in their respective statement go
to show that with the introduction of the cadre i.e. Management Staff Category by the erstwhile
INDAL during the year 1997-98, the members of the disputant-union were inducted into the cadre
and accordingly they endorsed their acknowledgement to the effect that they will no longer be
governed by the Union-Management Agreements.
It further reveals from the evidence that from 1998 till 2005 when the first party took over the
management of M/s INDAL, neither any individual dispute or dispute through union, in writing, was
raised by the disputants, who are being presently represented through the second party. Even on
scrutiny, not a single document is found available on record to presume that either individually or
collectively the members of the second party had protested the action of the first party when it
introduced a new cadre (Management Staff Category) and asked them to come over to such new
cadre either before the erstwhile management of INDAL or any other Competent Authority. Rather,
they remained silent over the matter for more than a decade and only after formation of the HINDAICO
Staff Association they came up with a plea before the first party (HINDALCO) alleging that their
categorisation by the erstwhile management was less beneficial comparing to their coverage
under the LTS. The ground raised in this regard by the second party that they were all compelled/
coerced by the erstwhile management of INDAL to accept and acknowledge the categorisation
made by it and with a fear to lose their employment they had endorsed their signature on Exts. A,
AB and L, in absence of any protest/representation to any Competent Authority, therefore loses its
significance and thus not acceptable to the Tribunal. Rather, the conduct of the second party
creates a shadow over their belated claim. As it seems, the members of the second party enjoyed
the benefits available under the Management Staff Category for a substantial period of twelve
years and only after formation of Hindalco Staff Association, they agitated the issue before the first
party urging that the privileges of Management Staff Category was less beneficial than the benefits
available under the LTS. This effort on the part of the second party-union, in my view, shows their
mind set for reverting back to the former position i.e. for their coverage under the LTS, meant for
the ‘workmen’ category, and that too such a step was taken after enjoying the benefits meant for
Management Staff Category for more than a decade. It may be taken note of that the first party took
over the man force from M/s INDAL on “as is where is” basis. In view of the above, I find sufficient
force behind the submission of the learned Senior Counsel that in the present situation when the
members of the second party have been taking up responsibilities with better benefits and moreover
there was never any resentment from their side till 2010, any finding pursuant to the claim of the
second party union shall lead to disturb the entire equilibrium in the industry and therefore, I am in
complete agreement with the learned Senior Counsel that fence-sitters like the second party
members should not be allowed to . barge into courts and cry for their rights at their convenience
seeking reliefs.
18. In view of the conclusions arrived at In the preceding paragraph on the maintainability
of the reference to the effect that the second party have never raised any resentment over their
15
[No. 810—LESI-IR-ID-0005/2025-LESI]
By order of the Governor
MADHUMITA NAYAK
Additional Secretary to Government
Printed and Published by the Director, Directorate of Printing, Stationery and Publication, Odisha, Cuttack-10
Ex. Gaz. 2097–173+9
upgradation to the Management Staff Category from 1998 till 2010 and for that matter not only they
had endorsed their acceptance/acknowledgement to come over to the Management Staff Category
but also enjoyed benefits thereof for more than a decade, despite there being a finding that there
remains no distinction/difference of nature of work between the persons covered under the LTS
and the Management Staff Category, The Tribunal is constrained to record a finding that any
conclusion on Issue No. (ii) at this juncture shall lead to disturb the entire equilibrium in the industry;
the reason being that there is evidence on record that most of the members of the second
party-union have in the meantime been promoted to hold posts under H.O. Roll of the first party.
19. Before parting with the Award, I may observe here that in the instant dispute the second
party-union has not only laid much emphasis touching the service conditions of the members of
the second party i.e. alleging violation of the provisions of Section 9-A of the Act on the part of the
first party, but also adduced much evidence on that aspect. But, in view of the specific schedule,
referred for adjudication by this Tribunal and on the face of the findings arrived at on maintainability
of the proceeding, the Tribunal is not inclined to address the merit or otherwise of such grounds
advanced by the second party; particularly when it has been asserted by the second party-union
that relating to such grievance another dispute is pending conciliation before the appropriate
Authority.
13. in view of the above, the reference is answered in the negative as against the second
party-union.
Dictated and corrected by me.
BENUDHAR PATRA
BENUDHAR PATRA
30-12-2024
30-12-2024
Presiding Officer
Presiding Officer
Industrial Tribunal
Industrial Tribunal
Bhubaneswar
Bhubaneswar