The Odisha
G a z e t t e
EXTRAORDINARY
PUBLISHED BY AUTHORITY
No. 357 CUTTACK, FRIDAY, FEBRUARY 7, 2025/MAGHA 18, 1946
LABOUR & E.S.I. DEPARTMENT
NOTIFICATION
The 3rd February 2025
S.R.O. No. 134/2025—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.-25 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 to for adjudication is hereby published as in the schedule below :—
SCHEDULE
BEFORE THE INDUSTRIAL TRIBUNAL, BHUBANESWAR
INDUSTRIAL DISPUTE CASE NO. 25 of 2012
Dated the 30th December 2024
Present :
Shri Benudhar Patra, LL.M.
. .
First Party—Management
Presiding Officer, Industrial Tribunal,
Bhubaneswar.
Between :
The Management of
M/s. Hindalco Industries Ltd.,
P.O. Hirakud-768016,
Dist Sambalpur.
And
Its Workmen, represented through
. .
2nd Party—Workmen
General Secretary, Hindalco Staff
Association,
At/P.O. Hirakud-768016,
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-89/11/3682/LESI, dated the 10th May
2012 :—
SCHEDULE
"Whether the demand of the Hindalco Staff Association for payment of VDA as per the All
India Consumer Price Index base 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 weitten 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 with
effect from 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. Thereafier 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 on
the 5th April 2010 restraining the union to resort to strike with effect from 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
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
3
of the disputes 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, 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
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 sated 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 as
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 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 insofar as
Samelter 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". Consquently, 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 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
4
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 with effect from 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 adjourment, 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 D.L.O. 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 with effect from 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 2011of the Hon'ble Court. Thereafter the aecond 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 slerical 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
5
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 Sction
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 industrial
dispute at the instance of 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 operative 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 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.
The specific assertion of the second party union with regard to their claim for Variable
Dearness Allowance (VDA) is that the said allowance is paid to the industrial workers to compensate
against frequent price rise and the same was extended by the first party to its operatives from time
to time as per the prevailing Consumer Price Index in terms of the Long Term Settlements entered
into with the unions. It is stated that the members of the second party union were enjoying the
facility of VDA since inception of the company till 1997-98 in terms of the Long Term Settlements
with the unions of Smelter Plant and Captive Power Plant which were in operation till 1999 and
2001, respectively, but the first party unilaterally stopped payment of the same to the members of
the second party union styling them as Local Management Staff. The union, has therefore, prayed
for a direction to the first party for extending the benefits of VDA in favour of its members.
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 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 then
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 throuhout 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
6
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
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 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.With regard to the merit of the claim, it is asserted in the written statement that
the members of the second party having accepted to come over to the Management Staff Category
and also acknowledged the benefits therof it is ridiculous for the second party union to claim combined
benefits i.e. those available to employees governed under the LTS and the benefits that have been
extended to them for becoming the local management staff. It is stated that the pattern of increase
in salary having completely changed to the system of compensation package under the CTC for
the local management staff and the VDA system not being a part of the compensation structure,
the demand on that count needs no consideration at all.
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 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
7
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 regaards 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
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 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 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.
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). Pleading
its unawareness about the concept of "Cost to Company'' the second party union has stated in its
rejoinder that the first party having miserably failed to indicate as to how the VDA is compensated in
the so called CTC structure and the comparison shown as to the percentage of increase in the
gross salary of employees, the claim for VDA raised on behalf of the members of the second party
is not only legal but also justified, accordingly prayer has been made to answer the reference in
favour of the second party union.
6. Upon consideration of the pleadings of the parties, the Tribunal has framed the following
issues 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 Hindalco Staff Association for payment of VDA as per
the All India Consumer Price Index base 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 five witnesses,
namely (1) Shri Ajit Kumar Singh, (2) Shri Mrutyunjaya Pattanik, (3) Shri Ajay Prasad Mohanty, (4)
Shri Anil Baran Patel and (5) Shri Prafulla Kumar Nayak and in addition thereto it relied on documents,
which have been marked as Exts. 1 to 50 . The first party Management, on the other hand, examined
four witnesses, 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.
8
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 Sec.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) 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 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 scond 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 Muralidharan
K. Vs. The Management of Circle Freight [(2007) III LLJ 953 (Delhi)].
9
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 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 industry 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 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 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
10
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 MW1 and MW3, 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 No.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
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 documents 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.44, Ext.45 and Ext.46 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 '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 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
11
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 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 sanctione 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 WW1,
WW2 and WW3. WW1 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 of job performed by him under the management. Though WW1 has been
cross- examined at length, yet the first party failed to elicit anything regarding the supervisory nature
of jobs performed by the LMS.
12
Likewise, WW No. 2 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. WW2 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 up-gradation 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-
Materialls, 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 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 of the
materials contained in the box(invoice) and thereafter I prepare a material arrival report. Therefter 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 rhe
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 WW3
is a complete narration about the nature of job performed by the LMS employees at various sections/
13
departments. As against the evidence- in-chief, the first party referred to Para.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 WW3, 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 wherefrom 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 up- gradation 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 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 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].
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
14
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 WW1 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 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 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 clause 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 the 26th August 1997 towards my acceptance 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 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 herassment. 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
15
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 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 up-
gradation to the Management Staff Category from1998 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 then 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
16
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 Sec.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, Bhubaneswar
Industrial Tribunal, Bhubaneswar
[1156-LESI-IR-ID-0008/2025-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. 2143—173+9