The Odisha

G a z e t t e

EXTRAORDINARY

PUBLISHED BY AUTHORITY

No. 355 CUTTACK, FRIDAY, FEBRUARY 7, 2025/MAGHA 18, 1946

LABOUR & E.S.I. DEPARTMENT

NOTIFICATION

The 1st February 2025

S.R.O. No. 132/2025—In pursuance of Section 17 of the Industrial Disputes Act, 1947

(14 of 1947), the award, dated the 30th December 2024 passed in the I.D. Case No. 30 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. 30.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 workmen, represented through

. .

Second Party

General Secretary, Hindalco Staff

Association,

At/P.O. Hirakud-768016,

Dist. Sambalpur.

2

Appearance :

Shri N.K. Mishra,Sr.Adv.& Associates

. .

For the First Party

Shri Sushanta Dash, Advocate

. .

For the Second 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. 3707—IR-ID-89/11-LESI, dated the 10th

May 2012 :

SCHEDULE

“Whether the demand of the union for the 15 days Casual Leave per year and

encashment of Casual Leave at the end of year 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 thereof 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 the 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 dated the 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

‘workmen’ 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 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 disputes having been failed, the reference as in the

schedue surfaced for adjudication by this Tribunal.

3. In the above premises, the second party filed its claim statement stating, inter alia, 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

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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 ‘L TS ‘) 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 Foremen,

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 responsibities effectively and started torturing

them by asking them to work beyond offical 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 the

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 the 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 management the second party members would resort to a strike

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w.e.f. the 6th April 2010 whereupon on notices being issued to both the parties by the

DLO,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 the 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 DLO, Sambalpur for joint discussion and

for cancelling the Certificate of Registration issued in favour of the second party union and could

be able to obtain an ex parte 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 Febuary 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 futher 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 management introduced “ Job Band Grade” 14 to 12 place of

Grade 25 to 30 employees, who are all members of the present disputant Union and in this regard

an industrial dispute at the instance of the present disputant union is pending conciliation before

the DLO, 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, inasmuch as, 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 67.5M.W. to 367.5 M.W. in Power Plant, but the employees in Grades 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. Justifying

their claim laid under the reference, it is stated by the second party union that prior to 2008 all the

Grades 25 to 30 employees were getting Sick Leave for 15 days, Casual Leave for 12 days and

Earned Leave for 40 days in a calendar year, but after 2008 the first party in an abrupt manner i.e.

without any notice brought about a change and allowed Sick Leave for 12 days; Casual leave for 8

days and Earned Leave for 30 days for the employees in Grade 25 to 30. Further, it is stated that

the encashment of CL, which was being availed by the employees in Grades 25 to 30, was also

abruptly stopped by the first party in the year 1997-98. Hence, the second party union has prayed

for a direction to the first party to restore 15 days Casual Leave per year and so also for encashment

of CL at the end of year in favour of the members of the second party union.

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 job 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 trasferrable 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 Grades

25 to 30 are no more in existence in its organisation, it is explained by the first party that the

employees in Grades 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 DLO 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 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

6

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 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 and consequently their designations 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 precentage 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% Disputing the claim of the second party union with regard to the

privileges of leave and encashment of CL at the end of the year, it is stated that since the members

of the second party are in the non-workmen category from 1997-98, as a matter of policy any

change/modification in the privilege would uniformly applicable to all the employees of such category

and therefore, the plea reised in this regard is not legally sustainable and for that matter no notice

was required to be served upon them while effecting change/modification in the privileges of leave

and encashment of CL at the end of the year.

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 eyewash to mislead the Tribunal. As regards the averment of the first

party that Grades 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 designation

remained intact as before 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 volunatry one on the party of the second

party members. It is also the specific stand of the second party union that its members are still

governed under the various Standing Orders of the Company, inasmuch 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. Futher, 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

7

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 members of the second party

union being in Grade 25 to 30 and covered under the Certified Standing Orders of the Company,

the changes effected by the first party in the matter of different kinds of leave availed by them and

encashment of C.L. at the year, in gross violation of the provisions of Section 9-A of the Act, is

neither legal nor justified and as such, the union prays for restoration of C.L. for 15 days per year

and encashment of C.L. at the end of the year in favour of its members.

6. Upon consideration of the pleadings of the parties, the Tribunal has framed the following

issue for determination.

ISSUES

(i)

Whether the members of the second party association are “workmen” as defined

under Section 2(s)of the I.D. Act ?

(ii)

Whether the demand of the union for the 15 days Casual Leave per year and

encashment of Casual Leave at the end of year is legal and/or justified ? If so

what should be the details ?

7. The second party union, in order to substantiate its stand though filed the evidence

affidavit of six witnesses, yet in course of hearing on a prayer being made by it, the evidence

affidavit of Shri Hema Chandra Pal was expunged vide order, dated the 26th July 2017. Hence five

witnesses, namely (1) Shri Ajit Kumar Singh, (2) Shri Mrutyunjaya Pattanik (3) Shri Ajay Prasad

Mohanty (4) Shri Debendra Kumar Barik and (5) Shri Prafulla Kumar Nayak have been cited as

witnesses from the side of the second party. In addition to the oral evidence, the second party has

also relied upon certain documents, which have been marked as Exts.1 to 46. The First Party

Management, on the other hand, examined four witnesses on its behalf, 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 documents marked 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 disputant 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) entered 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

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

8

made various demands on the ground that despite their rendering clerical/manual nature of duties

they have been deprived of the 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 under 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); Arkal Govind 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 reveal 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 that the members of the second party after being

categorised as LMS are discharging supervisory nature of job having managerial power and thus

they are ousted 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 i ndustry to do

any manual unskilled, skilled, technical, sales promotion, operational, clerical or supervisory

or any work for promotion of sales for hire or reward, whether the terms of employment be

9

express or implied, and for the purposes of any proceeding under this Act in relation to an

industrial dispute, includes any suchperson 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 reason of the powers vested in him, functions mainly

of a managerial nature.”

On perusal of the judgements cited by the 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 works 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 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 HO 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 ‘workmen’ 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 that the above benefits are not

the same to both the categories of employee i.e. LMS and Wage Roll employees. No document

10

has been filed before this Tribunal to substantiate the above benefits, but I can produce it. It is a

fact that in support of supervisory/administrative capacity of the second party union members no

document has been furnished. I can produce document to that effect if so directed. It is a fact that

insofar as production processes are concerned, the members of the second party union had no

independent decision making authority and insofar 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. 40, Ext. 41 and Ext. 42 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. 40 to 42 the above named disputants were

categorized as ‘workmen’ though the management has brought them under the LMS category. It is

a fact that the LMS category staff cannot perform the role and responsibility of the HO 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. I 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

11

a fact that the job responsibility of the Chargeman is to do job planning. All the employees including

the Chargeman, LMS and HO Roll follow the SOP. It is a fact that the Chargeman and LMS retire

at the age of 58 and the HO 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 primarily 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 independent decision making authority and that they are

performing manual, clerical and technical nature of job. The SOP has been prepared by the LMS

and HO Roll staff jointly, but no document is filed in support of that fact in this Tribunal. 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 HO 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

Shri Ajit Kumar Singh, Shri Mrutyunjay Patnaik and Shri Ajay Prasad Mohanty. (The witnesses

from the side of the second party union have been reflected as WW 1, WW 3 and WW 4,

respectively). WW 1 in his examination-in-chief has stated that all the 413 members of the union

do the job of manual and/or clerial in nature and during cross-examination at Para. 37 he narrated

the nature 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 performed

by the LMS.

Likewise, WW No. 3 in his evidence-in-chief has stated that, 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 Patnaik, 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 Grades 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. 4 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 Para. 9 to 46 is the narration about the nature of job of all the staff

members forming part of Grades 25 to 30 in various departments/sections of Captive and Power

12

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

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 Operatives. 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 Material

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 a 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 respective assignments. His evidence from Para. 82

to 104 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 4,

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 memberm 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 HO 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

13

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

and others Vs. Ram Gopal [ (2021) 13 SCC 225].

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/acknowleged 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 opporunity to exercise their option, rather they were compelled/

coerced to give undertaking 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 there on. 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. 3 when he deposed in his

cross-examination at Para. 20 and 21 that it is a fact that on the 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. 4, it is found from his evidence when he deposed

during his cross-examination at Para. 52 that it is a fact the long term triparitie 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

14

during reorganisation 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 clause that I will no langer be governed by the union management agreements. fact

that I put my signature on Ext. AB on the 26th August 1997 towards my acceptance and affirmation.

The witness volunteers that I was compelled to sign on Ext. AB and that given the impression that

the terms 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 Hindalco

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 leared 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 distrub 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

convenienceseeking reliefs.

15

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

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. 2 at this juncture shall lead to’ disturb the entire equilibrium in the industry;

the reason being that there is eviderice on record that most of 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 provision 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 beeen 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, Bhubaneswar

Industrial Tribunal, Bhubaneswar

[No.1115—LESI-IR-ID-0001-2025-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. 2141–173+9