The Odisha

G a z e t t e

EXTRAORDINARY

PUBLISHED BY AUTHORITY

No. 666 CUTTACK, TUESDAY, MARCH 18, 2025/FALGUNA 27, 1946

LABOUR & E.S.I. DEPARTMENT

NOTIFICATION

The 11th March 2025

S.R.O. No. 169/2025— In pursuance of Section 17 of the Industrial Disputes Act, 1947

(14 of 1947), the Award dated 24th February 2025 passed in the I.D. Case No.01 of 2019 by the

Presiding Officer, Industrial Tribunal, Bhubaneswar to whom the industrial dispute between the

Management of Odisha Power Generation Corporation Ltd., At Zone-A, 7th Floor, Fortune Towers,

Chandrasekharpur, Bhubaneswar-751023 and Shri Balunkeswar Mohapatra & 38 others

represented through O.P.G.C. Employee Union, Regd. Office At Plot No. 151, Sahid Nagar,

Bhubaneswar- 751007 was referred for adjudication is hereby published in the schedule below.

SCHEDULE

IN THE INDUSTRIAL TRIBUNAL, BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 01 of 2019

Dated the 24th February 2025

Present :

Shri Benudhar Patra, B.Sc. LL.M.,

Presiding Officer,

Industrial Tribunal,

Bhubaneswar.

Between :

The Management of

. .

First Party—Management

Odisha Power Generation Corporation Ltd.

At Zone-A, 7th Floor, Fortune Towers,

Chandrasekharpur,

Bhubaneswar- 751023.

And

Shri Balunkeswar Mohapatra &

. .

Second Party—Workmen

38 others represented through

O.P.G.C. Employee Union,

Regd. Office At Plot No. 151,

Sahid Nagar, Bhubaneswar- 751007.

Appearances :

Shri Subrat Mishra, Advocate

. .

For the 1st Party Management

Shri Sushanta Dash, Advocate

. .

For the 2nd Party Workmen

AWARD

The Government of Odisha in the Labour & E.S.I. Department, in exercise of its powers

conferred under sub-section (5) read with Clause (d) of sub-section (1) of Section (10) of the

Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) have referred the following

schedule for adjudication by this Tribunal vide Order No. IR-ID-73/18-854/LESI, dated the 11th July

2019.

SCHEDULE

“Whether the action of the management of M/s. OPGC Ltd., in denying promotion to

Shri Balunkeswar Mohapatra and 38 others from Jr. Assistant (Grade W-3) to the

post of Sr. Asst. (Grade S-2) w.e.f the 26th October 2002 and subsequent promotions

like Sr. Asst. (Grade S-1), S.O. and E.I. w.e.f. the 26th October 2007, 26th October

2011 and 26th October 2015,respectively is legal and/or justified ? If not, what relief

the workmen are entitled to ?”

2. Before entering into any discussion on the claim and counter claim advanced by the

respective party, a little background of facts involved in the dispute need mention. It reveals from

the failure report attached to the order of reference that on 6th November 2017 the 2nd party union

made a grievance petition to the Labour Commissioner Odisha, Bhubaneswar with a copy to the

Managing Director of the 1st party stating therein that despite completion of five years in the post of

Jr. Asst. (Grade- W3) the aggrieved workmen involved herein have not been promoted to the post

of Sr. Asst. (Grade-S2) although the management has promoted a number of Jr. Assistants of W3

Grade as Sr. Assistants (S2 Grade) in due course and also by virtue of orders of the Hon’ble High

Court. Further, it was pointed out by the 2nd party that when the management was apprised during

the year 2002, it effected promotion of Jr. Assistants of W-3 Grade to W-4 Grade without change of

the designation, which according to the 2nd party union is lower grade than S-2 and further they

were deprived of the subsequent promotion to the post of Sr. Asst. (Grade-S1), S.O. and E.I. As

the 1st party remained firm in its action and submitted that the allegations contained in the grievance

petition has no merit at all, there could not be a settlement of the dispute and ultimately the Conciliation

Officer- cum-Joint Labour Commissioner, Odisha, Bhubaneswar, on failure of conciliation, submitted

a failure report which culminated into the present reference.

3. Pursuant to the reference, the 2nd party union filed its claim statement stating therein,

inter-alia, that the members involved in the present ‘lis’ are the employees of the 1st party and they

have joined the organization on different dates. It is stated that as the management promoted

some Jr. Assistants to the post of Sr. Assistants i.e. from Grade-W3 to Grade-S2 in the year 1994,

who were similarly situated employees like the 2nd party members but did not pay any heed to give

such benefits to its members, the dispute after failure of conciliation was referred for adjudication

to this Hon’ble Tribunal. In support of the Claim, it is pleaded that in the year 1994 the first party vide

Order No.865, dated the 29th January 1994 promoted 21 Junior Assistants to the rank of Senior

Assistants and being aggrieved with such promotion order, Shri Jayasena Patra and five others

approached the Hon’ble Court in OJC No.15035 of 1996 on the ground that juniors to them having

got promotion to the post of Senior Assistants, they should accordingly be promoted with effect

from the date on which their juniors were promoted and as a consequence thereof the Hon’ble

Court vide judgment dated the 9th October 2013 quashed the order dated the 29th January 1994

and directed the management to give promotion to Shri Jayasena Patra and five others w.e.f. the

29th January 1994 without having any arrear salary, but granted seniority and other retiral benefits.

Similarly, it is pleaded, the management has promoted one Shri SushiI Kumar Barik from Junior

Assistant in Grade-W3 to Senior Assistant in Grade-S2 by virtue of order dated the 9th October

2013 of the Hon’ble Court passed in OJC No.5881 of 2000 and many others namely, P.K.Sahani,

P.K.Bhanjadeo, K.C.Jena, Renubala Naidu during the period from 1994 to 2014. It is the consistent

stand of the Union that after completion of seven years of service in their respective Grade- W3,

the disputants should have been promoted to the post of Senior Assistant in Grade-S2, but the

management ignoring the previous practice and in contravention of the principles of promotion

promoted the disputants from the post of Junior Assistant of Grade-W3 to Grade-W4, which is a

lower grade than S-2 during the year 2002 to 2005 taking recourse to the purported OPGC

Recruitment and Promotion Rules, which was not made effective to the Junior Assistants who got

promotion earlier. It is stated that on account of discontentment amongst the employees, the

disputant-union took the matter with the management and after protracted discussion a Minutes of

Meeting/Settlement was drawn between the Management of OPGC Ltd. And OPGC Employees

Union on 8th May 2006 for revival of the policy i.e. for promotion of Junior Assistant in Grade- W3 to

Senior Assistant in Grade-S2 and accordingly it was resolved in Item No.3 of the Minutes of the

meeting that the Junior Assistants will be placed directly in Grade-S2 i.e. Sr. Asst. instead of

Grade-W4 with retrospective effect because of the precedents. Despite the above, it is pleaded,

the case of the disputants were not taken into consideration and they were not only debarred of the

benefits of promotion prospects from Grade-W3 to Grade-S2 in the post of Sr.Asst. but also it

stood as a barrier for their future promotion. Citing Circular No. 21986-SC/6-31/2000-Gen. dated

the 26th June 2000 of the G.A. Department of Government of Odisha, which speaks of the eligibility

criteria for a Junior Assistant to become a Senior Assistant on completion of three years of continuous

service as Junior Assistant, it is pleaded that although the management by adopting the said

circular has promoted 32 nos. of its employees, yet the same was not applied in respect of the

disputants. Specifically, it is stated that had the case of the disputants been considered at par with

the similarly situated workmen, who were promoted earlier, then they would have been promoted

to the post of Sr. Asst.Manager in E-2 Grade as on 26th October 2018 and would have been

benefited financially with career prospects and reputation in the society. With the averments as

above, the union has prayed for a direction to the management to extend the promotional benefits

to the disputants workmen from Jr.Assistant (Grade-W3) to Sr.Asst.(Grade-S2) w.e.f. the 26th

October 2002; and subsequent promotions from Grade-S2 to Grade-S1, S.O. and E.I w.e.f. the

26th October 2007; dated the 26th October 2011 and 26th October 2015, respectively following

the principle of equity and law.

4. The management at the outset challenged the maintainability of the claim laid on behalf

of the disputants by Shri Dhruba Charan Sahoo in his capacity as General Secretary of the Union

and the non-application of mind of the Government while making the reference, inasmuch as, the

issues referred for adjudication are beyond the subject matter of complaint basing upon which the

conciliation was initiated by the labour machinery and further the cause of action never arose

within the territorial jurisdiction of this Tribunal. The claim is otherwise pleaded to be bad, barred

under the principle of res subjudice, acquiescence and principles.

Resisting merit of the claim, it is stated by the management in its written statement that

earlier the disputant-union had approached the Hon’ble Court in W.P.(C) No. 5197 of 2002 challenging

the Recruitment. and Promotion Rules for Non-Executives, 2002 of OPGC Ltd., but later on the

union having sought permission to withdraw the writ petition with liberty to individual employee to

assail the Rules of the year 2002, the Hon’ble Court vide Order dated the 22nd June 2015 permitted

withdrawal of the writ petition with liberty as prayed for by the petitioner. It has further been pleaded

that as against the orders of the Hon’ble Court, Writ Appeal No.W.A.(C) 550 of 2015 was preferred

by the Petitioner and the same is still subjudice before the Hon’ble Court and in that view of the

matter, the Union has no locus standi to maintain the present dispute and so also this Tribunal is

precluded from proceeding any further in the instant dispute. It is the specific stand of the

management that the Recruitment and Promotion Rules for Non-Executives, 2002 of OPGC Ltd.

came into effect on 26th October 2002 and has been in vogue for over 17 years and prior to that

promotion of the employees was being considered based on requirement and need based. It is

stated that a batch of Junior Assistants and Office Assistants were considered for filling-up of

higher posts as one time requirement in the year 1992-93 and as a consequence thereof many of

the second party members were regularized in the post of Junior Assistanti Clerk-cum-Typist after

1994 and therefore, they cannot question the action of the management policy that had considered

one-time benefit amongst the employees who were in the employment at the time of consideration

of the one-time policy. Besides, it is stated that many of the second party members having reaped

the benefit of the Recruitment and Promotion Rules for Non- Executives, 2002(for short, R&P

Rules, 2002), the union is now estopped to raise objection over the same at this belated stage i.e.,

after lapse of almost 24 years and further the dispute espoused by the union cannot be said to be

an ‘industrial dispute’ as the issue of promotion is neither mala fide nor victimization, nor it falls

within the ambit of the second schedule or third schedule of the Act. It’ has further been pleaded

that the judgment delivered in OJC No.15035 of 1998 is not at all applicable to the present dispute

as because the claim involved in the aforesaid Writ Application was relating to determination of

seniority for promotion prior to the formation of the R&P Rules, 2002 whereas in the present

dispute demand is raised by the second party union for promotion of the disputants from Junior

Assistant to S2 Grade skipping one grade in between i.e. W4 Grade by circumventing the R&P

Rule, 2002. Disputing the Minutes of the Meeting dated the 8th May 2006 to be a settlement within

the meaning of Section 2(p) and Section 18 of the Act read with Rules 64 and 65 of the Orissa

Industrial Disputes Rules,1959, it is stated that by virtue of the minutes of the meeting a Committee

was constituted to put forth its recommendation to the OPGC Management for consideration on

various labour related issues and the same being presented before the Board of Directors in their

128th meeting held on 8th August 2006 it was decided that the process followed in promotion of

Junior Assistants in W3 Grade to W4 Grade would remain unaltered. Further, it is stated that 31

out of the 39 second party members having accepted their promotion from Junior Assistant (W3

Grade) to Junior Assistant (W4 Grade) based on the recommendation of the DPC in different

years under the R&P Rules,2002, there has been no violation of Article 14 and 16 of the Constitution

of India as alleged by the second party union, nor there has been any discrimination, mala fides or

victimization in the matter of promotion of the second party members. With the averments as

above, the first party has prayed to answer the reference in the negative as against the second

party union.

5. Reiterating its stand taken in the claim statement, the second party union filed a rejoinder

to the written statement of the first party challenging its stand regarding maintainability of the

reference. It is averred in the rejoinder that forming of opinion by the Government while referring a

dispute for adjudication cannot be said to be mechanical and further there cannot be an estoppel

against exercise of fundamental rights of individual employee, particularly when 32 numbers of

employees were promoted between 1994 and 2014 by adopting pick and choose method, despite

the R&P Rules, 2002 resulting discontentment amongst the employees and such discrimination

gave rise to the present dispute which is an ‘industrial dispute’ within the meaning of the Act. In

order to unearth the truth, the second party union in its rejoinder has sought for a direction to the

management to produce the Minutes of the Meeting of the Board of Directors dated the 8th May

2006 and the Minutes of 128th Board meeting dated the 8th August 2006. Further assertion of the

Union is that the seniority list said to have been published by the management vide notice No.1200/

WE, dated the 16th June 2014 reflects the name of Junior Assistants who were on roll of the

company as on 29th January 1994, but a perusal of the said list would reveal that the same

contained the name of 47 Junior Assistants till 1st October 1992 but deliberately it has not provided

the names of the rest 45 Junior Assistants. In the aforesaid background the second party union

has claimed its demand to be justified and prayed for grant of relief (s) in favour of its members.

6. On the basis of the pleadings of the parties, the following issues have been settled :—

ISSUES

(i)

Whether the action of the of the management of M/s OPGC Ltd., in denying

promotion to Shri Balunkeswar Mohapatra and 38 others from Jr. Assistant (Grade

W-3) to the post of Sr. Asst. (Grade S-2) w.e.f the 26th October 2002 and

subsequent promotions like Sr.Asst. (Grade- S-1), S.O. and E.I. w.e.f. the 26th

October 2007, 26th October 2011 and 26th October 2015,respectively is legal

and/or justified ?

(ii)

if not,what relief the workmen are entitled to ?

7. In support of their respective stand, both parties adduced oral as well as documentary

evidence. While the second party union examined two witnesses on its behalf as WW1 and WW2

and relied on documents marked Exts.1 to 17, the first party examined one Shri Krutibash Padhi,

its Manager(HR & Admin.) as MW1 and placed reliance on documents marked Exts. A to F.

FINDINGS

8. Issue No. (i) & (ii) — Before entering into any discussion on the issues, I would like to

deal-with the objections raised by the management on the maintainability of the reference though

an issue to that effect has not been framed either at the instance of the management or by this

Tribunal.

9. It has been contended by the management that the present union had earlier approached

the Hon’ble High Court of Orissa in W.P.(C) No.5197 of 2002 challenging the R&P Rules, 2002

which was subsequently withdrawn at the instance of the Union with liberty to individual employee

to assail the said Rules of the year 2002 if he/they at all aggrieved with and therefore, the self-

same cause espoused by the Union is not at all tenable; the same being barred under the principle

of res subjudice giving no scope to this Tribunal to proceed further with the current matter. To

substantiate the argument, the first party has filed xerox copy of Order No.9, dated the 22nd June

2015 of the Hon’ble Court passed in W.P.(C) No. 5197 of 2002, marked Ext.B. On the other hand,

the learned counsel representing the union submitted that in the aforestated Writ Petition the

subject matter was different than that of the present case, inasmuch as, while in the writ petition

the Union challenged the violation of provisions of Section 9-A of the Industrial Disputes Act on the

part of the management while formulating the Recruitment Rules and there was no question of

claim of promotion of the disputants, the present dispute involves the question of promotion of the

disputants and therefore, there was no bar for the disputants to espouse their remedy before the

present forum. Referring to Ext. 15 , he further submitted that the W.A.No. 550 of 2015 filed against

the order of the W.P.(C) has already been disposed of on 27th September 2022.

The management while in one hand challenges the reference under the principles of

res-subjudice, but in the other failed to substantiate its stand, inasmuch as, it has not filed the copy

of the Writ Petition in W.P.(C) No.5197 of 2002 to meet the stand of the second party union that in

fact the union in the said Writ Petition had the same cause of action as is involved in the present

dispute. The Union having specifically averred in its claim that prayer in the writ petition was different

than that of the present dispute, the management ought to have filed the copy of the Writ Petition

so as to sustain its argument. Not being aware of the averments made in W.P.(C)No.5197 of 2002,

it is difficult on the part of this Tribunal to hold that the dispute under reference is barred under the

principle of res subjudice, particularly when as it reveals from the conciliation failure report such a

stand was not taken by the management before the Conciliation Officer and further MW1 has

admitted in his cross-examination at Para. 51 that the Recruitment & Promotion Rules, 2002 for

non-executives(Ext.D) is not a subject matter of challenge in the present dispute.

10. The management has further taken a stand that the dispute under reference does not

come within the purview of an ‘industrial dispute’. Looking to the grievance of the disputants that

from the year 1994 to 2014 around 32 numbers of employees were promoted by the management

by adopting pick and choose method and by order of Courts despite the fact that during said period

the R&P Rules,2002 was in vogue, but the case of the disputants was not taken into consideration

resulting their approach to the labour machinery, I find no reason to hold that the dispute in hand

does not come within the purview of ‘industrial dispute’ within the meaning of the Act. It this connection

a reference may be made to the cross-examination part of MW1 wherein he has admitted that the

present disputants have claimed promotional benefits from Junior Assistant (W3 Grade) to Senior

Assistant (S2 Grade) at par with the promotion given to some of the similarly situated employees

in the year 1994.

11. Further, the management has challenged the locus standi of Shri Dhruba Charan Sahoo,

General Secretary of the Union for filing the present dispute, but in view of statement of MW1

during his cross-examination that he cannot say if the locus standi of Dhruba Charan Sahoo,

General Secretary of the Union for filing the present dispute has been challenged in any forum and

if the maintainability of the present reference has ever been challenged before this Court, the plea

taken on this score is found to be no way helpful to the management.

12. Next, it is contended on behalf of the management that the Government having travelled

beyond the subject matter of complaint petition of the union dated the 26th December 2015, the

reference is not maintainable. The learned counsel for the union resisting the submission has

contended that the validity of a reference cannot be questioned by the Tribunal and to fortify his

argument has cited a decision of the Hon’ble Apex Court in the case of National Engineering

Industries Ltd. Vs. State of Rajasthan and others, reported in AIR 2000 SC 469, wherein the Hon’ble

Apex Court have held that Industrial Tribunal is the creation of the Statute and it gets jurisdiction on

the basis of a reference. It cannot go into the question of validity of the reference. Taking into

consideration the arguments advanced on the point, I am in complete agreement with the learned

counsel for the second party union that the Tribunal being a creation of the Statute, it cannot sit

over the decision of the Government and as such, the submission on this score laid on behalf of

the management fails.

13. Lastly, it is contended on behalf of the management that the disputants involved herein

having agitated their dispute after lapse of 24 years, their claim suffers from serious delays and

lapses and thus not tenable at this stage. In the context, he cited a decision of our own Hon’ble

High Court in the case of Birat Chandra Dagara Vrs. Odisha Manganese & Minerals Limited,

reported in 2021(I) OLR 934 and contended that the settled proposition of law being that the law

will assist only those who are vigilant about their right and not those who sleep over the same, the

dispute in hand is not to be entertained at this stage. Per contra, it is contended on behalf of the

second party union that the Law of Limitation being not applicable to cases under the Industrial

Disputes Act, which is a social welfare legislation intended to protect the interest of the workers

employed in various industries, the delay and latches taken as a ground by the management to

disentitle the disputants from the reliefs sought for, are not to be taken note of, particularly when

the management despite promoting Junior Assistants(W3 Grade) to the post of Senior Assistant(S2

Grade) did not pay any heed to the grievance of the disputants for their promotion from Junior

Assistant (W3 Grade) to Senior Assistant (S2 Grade) and promoted them from W3 Grade to W4

Grade in between 2002 and 2005 without there being any change in the designation on the

pretext of R&P Rules, 2002.

14. Based on the above arguments, on perusal of record it is ascertained from list of Junior

Assistants annexed to the failure report that all the disputants involved herein had joined the first

party as Junior Assistants in between 1990 and 1998 i.e. prior to coming into force of the R&P

Rules, 2002, but they all have been promoted to W4 Grade in between 2002 and 2005 taking

recourse to the said Rules. It further reveals from Ext. 11 , the Minutes of the Meeting dated the 8th

May 2006 between the parties that on a demand being raised by the second party union the Managing

Director had opined that there were some anomalies in the promotions and appointments of the

non-executives and accordingly formed a committee to sort out the anomalies and further recognized

that Junior Assistants will be placed directly in S2 Grade (Sr.Assistant) instead of W4 Grade with

retrospective effect because of the precedents with an instruction that the recommendation of the

Committee in connection with the anomalies shall be accepted by the Management. As it further

reveals from record, the matter of promotion of some Junior Assistants was under challenge

before the Hon’ble Court in OJC No.15035 of 1998 and OJC No. 5881 of 2000 and after

implementation of the orders passed in the said OJCs by the Management, the disputants made a

representation to the management on 23rd December 2014 (vide Ext.13) claiming their promotion

from Grade W3 to Grade S2 with effect from the date they were promoted to W4 Grade and non-

consideration of their demand gave rise to the present dispute. In view of what have been stated

above, I am not convinced with the submission of the management that there has been delay and

latches on the part of the disputants in raising the dispute; the reason being that the facts involved

herein is quite different than the facts involved in Birat Chandra Dagara’s case (supra).Therefore,

the objection raised on the score is found to be not tenable.

15. In view of the discussions held in the preceding paragraphs, the reference is held to be

maintainable in this forum.

16. Now coming to the merit of the dispute, it has not only been pleaded but also stated by

WW 1, the witnesses examined on behalf of the second party union, that the Management has

adopted two different policies for effecting promotion of its Non-executive Employees, inasmuch

as, while it has promoted some Junior Assistants (W3 Grade) to the post of Senior Assistants

(S2 Grade) namely, P. K. Sahani, P. K. Bhanjadeo, K. C. Jena, Renubala Swain during the period

from 1994 to 2014 and Shri Sushil Kumar Barik from Junior Assistant in Grade-W3 to Senior

Assistant in Grade-S2 by virtue of orders dated the 9th October 2013 of the Hon’ble Court passed

in OJC No.5881 of 2000, no such weightage was given to the grievance of the second party

members for their promotion from W3 Grade to S2 Grade. It has been deposed to by WW1 that

on completion of five years in their respective W3 Grade, all the disputants should have been

promoted to Senior Assistant in Grade-S2, but the management ignoring the previous practice

and contrary to the principles of promotion, promoted all of them to W4 Grade which is a lower

grade than Grade-S2 taking recourse to the R&P Rules, 2002 which was not made effective in

respect of the Junior Assistants who got promotion as per previous practice, which resulted the

disputants to sustain heavy financial loss. He referred to the Minutes of the Meeting dated the 8th

May 2006(Ext.11) and stated that despite resolution of their claim in the said meeting their case

was not taken into consideration by the management and as such they were discriminated by the

authority in the matter of their promotion. He has further deposed that had their case been considered

at par with the above named similarly situated workmen, who were promoted from the post of

Junior Assistant to Senior Assistant, they would have been promoted to the subsequent promotional

posts and consequently would have been benefitted financially with all their career prospects. He

has proved Ext.1 , the copy of list of different grades of non-executive employees of the first party;

Exts. 2 & 3, the, copies of office orders dated the 29th January 94 and 9th May 95 of the first party

effecting promoltion of Junior Assistants to the rank of Senior Assistants; Ext.4, the copy of the

judgment dated 24th September 2013 passed by the Hon’ble Court in OJC No.5881 of 2000; Ext.5,

the copy of office order dated 20th June 2014 issued pursuant to the direction of the Hon’ble Court

to promote Shri Sushil Kumar Barik from the post of Junior Assistant to Senior Assistant; Exts. 6 to

10, the copies of office orders dated 26th October 2002, 13th February 2003, 20th October 2003,

31st May 2004 and 20th September 2005 whereby the disputants were promoted to Grade-W4/

given the scale of pay of Grade-W4; Ext. 11 , the copy of the Minutes of the Meeting dated the

8th May 2006 between the parties showing a decision to have been taken by the Managing Director

for promotion of the Junior Assistants directly in Grade-S2 i.e., Senior Assistant; Ext.12, the copy

of office order dated the 11st August 2006 whereby it was decided by the management that all

promotions effected on or after 26th October 2002 under the R&P Rules,2002 would be converted

to a regular promotion as one time settlement from the respective dates with appropriate

designation/re-designation; Ext.13, the copy of grievance dated the 23rd December 2014 of the

disputants addressed to the Chairman of the first party; Ext. 14, the copy of representation of the

disputants dated the 12th December 2015 addressed to the General Secretary/President of the

Union; Ext. 15, the copy of orders of the Hon’ble Court dated the 27th Septmber 2022 passed in

W.A. No. 550 of 2015; Ext.16, copy of letter of the first party addressed to the second party union

informing that as a part of implementation process of the Board of Directors decision dated 20th

June 2022 and 22th September 2022, draft Form-K and joint petitions have been handed over to

the Union to close the instant proceeding before this Tribunal and Ext. 17, the copy of letter of the

first party dated the 4th April 2023 addressed to the second party union clarifying that the issue of

promotion anomaly of Junior Assistant (W3) to Senior Assistant (S2) has already been resolved by

the Board of Directors in their 226th meeting held on 20th June 2023 and to give effect to the

decision of the Board of Directors, the I.D. Case No.01 of 2019 (i.e the instant proceeding) filed by

the Union needs to be withdrawn. WW 1 was cross exmined at length by the first party, but the

management except confronting Ext. A i.e the copy of he complaint of the Union before the DLO,

Khurda to WW 1 and putting a suggestion that the present referenece is not in accordance with

the complaint of the Union, could not be able to elicit anything to discredit his version in the

examination in chief or the documents cited by him on behalf of the union.

WW 2 in his examination in chief has stated that during pendency of the present dispute he

has attained the age of superannuation and three of the involved disputants have expired whose

names find place at Sl. No. 11 (Jaganibash Pattnaik, S/o Late Siba prasad Pattnaik); SI. No. 23

(Lingaraj Sa, S/o Late Debarchan Sa); Sl. No. 29 (Dambarudhar Jena, S/o Late Manu Jena) and

their legal heirs have been arrayed as parties in, this case. He deposed that although during

pendency of the dispute the management proposed to settle the dispute and accordingly a draft

settlement was prepared, yet the same was not acted upon, as because the management did not

agree to take care of the interest of the above named retired and deceased employees. He deposed

that they all are entitled to the promotional benefits as indicated in their claim statement. In cross-

examination WW 2 deposed that none of them have accepted promotion pursuant to coming into

force of the R&P Rules, 2002, but he admitted that on attaining the age of superannuation he

retired as an Operator. He denied the suggestion of the first party that 31 out of the 39 disputants

have accepted the Promotion Rules and enjoyed promotional benefits without any objection.

The first party in its turn has examined Shri Krutibash Padhi, its Manager (HR & Admin.)

who has simply deposed in his examination in chief reiterating the stand taken in the written

statement. In support of the assertions made in the written statement, MW1 has filed and proved

Photocopy of letter dated the 26th December 2015 of Dhruba Charan Sahoo, General Secretary

addressed to the DLO, Khurda, Bhubaneswar(Ext. A); Photocopy of Order No. 9, dated the 22nd

June 2015 of the Hon’ble Court passed in W.P.(C) No. 5197 of 2002 (Ext.B); Photocopy of

Corporatization Agreement, 1996 between the Government of Odisha and OPGC (Ext.C);

Photocopy of Recruitment and Promotion Rules, 2002 for Non-Executives (Ext.D); Photocopy of

orders of promotion and retirement relieve orders in respect of some of the disputants to indicate

their designations (Ext. E) and the letter of authorization of the management in favour of

Shri Krutibash Padhi, Manager-HR & Admin. (Ext.F). In cross-examination, however, he has admitted

that the disputants involved herein have claimed promotional benefits from Junior Assistant (W3

Grade) to Senior Assistant (S2 Grade) at par with the promotion given to some of the similarly

situated employees in the year 1994 and that the Non-Executive Promotion Rules came into

existence in the year 2002. He feigned his knowledge as to if the locus standi of Shri Dhruba

Charan Sahoo, General Secretary of the Union for filing the present dispute has been challenged

in any forum and that if the maintainability of the present reference has ever been challenged

before the Hon’ble Court. Further he has fairly admitted in cross-examination that the Recruitment

& Promotion Rules, 2002 for non-executives (Ext.D) is not a subject matter of challenge in the

present dispute. It further reveals from his cross-examination that the disputants while availing

promotion from time to time have also ventilated their grievance to the management for promotion

from W-3 to S-2 Grade. Though he could not say as to if the disputants have availed promotions

on protest, but again stated denying the suggestion that the disputants have availed the promotion

on protest. In Para. 53 of his cross-examination MW1 has stated that without referring to the

original document he is not in a position to say if the proposal for promotion of Junior Assistants

from W-3 Grade to S-2 Grade before 2002 was considered appropriate in the 226th meeting dated

the 20th June 2022 of the Board of Directors and that the promotion of Junior Assistant from W-3

to W-4 was inappropriate. He admitted Ext.16 to be the photocopy of the letter of the management

dated the 31st October 2022 addressed to the General Secretary of the Union to resolve the Junior

Assistant issue involved in the present dispute in accordance with the outcome of the 226th meeting

of the Board of Directors and so also Ext.17 to be the photocopy of letter of the General Manager,

HR addressed to the General Secretary of the Union suggesting withdrawal of I.D.Case No. 01 of

2019 in view of settlement of issue of promotion of Junior Assistant from W-3 Grade to Senior

Assistant S-2 Grade in the 226th meeting of the Board of Directors held on 20th June 2022. He

also fairly admitted during cross-examination that the issue of the disputants has not yet been

resolved and that the disputants who have retired and died during pendency of the dispute have

not yet received any financial benefit in terms of their promotion as claimed in the present dispute.

17. As is gathered from the evidence as discussed above, prior to coming into force of the

R&P Rules, 2002, the management as on principle was promoting Junior Assistants of W-3

Grade to the post of Senior Assistants of S-2 Grade and also later on and keeping in view that

disparity, it was resolved in the Minutes of Meeting, dated the 8th May 2006 held between the

management and the Union (Ext. 11) to resolve the issue by a Committee and further in the said

Meeting the Managing Director of the first party recognized that Junior Assistants will be placed

directly in S-2 Grade(Sr. Asst.) instead of W-4 Grade with retrospective effect because of the

precedents. Further, as it reveals from Ext. 17, the Board of Directors in their 226th meeting had

already resolved the said issue and in order to give effect to the said decision the General Manager,

(HR) vide letter dated the 4th April 2023 clarified the above aspect to the General Secretary of the

Union. Besides, it is also noteworthy to mention that pursuant to the issues raised by the second

party union, the General Manager (HR) also intimated to the Union regarding the action taken on

the Junior Assistant issue to the effect that “As a part of implementation process of the BOD’s

decision, dated the 20th June 2022 and 22nd September 2022 the draft Form-K & joint petitions

have been handed over to the union to close the pending I.D.Case No.1/2019". The management,

on the other hand, placed reliance on Ext. E series i.e. the orders of promotion issued in respect of

some of the disputants and the relieve order in respect of one of the disputants who has in the

meantime been retired from service and tried to convince that owing to their acceptance of

promotional posts, they are not entitled to agitate a claim which is of a previous period, but at the

same time it failed to exhibit any document in support of its stand that while issuance of the

promotion orders in favour of the disputants whether they had all accepted the promotional posts

voluntarily or without prejudice to their claim advanced in the instant proceeding. Apart from what

have been stated above, when it is found that on the consistent demand of the union the issue

relating to their promotion from W-3 Grade to S-2 Grade has already been resolved in the Minutes

of the Meeting dated the 8th May 2006 (Ext.11 ) and it has been stated so by the General Manager

(HR) in his letter addressed to the Union vide Ext.17 and more so, as it reveals from Ext.16, the

union has been advised to file a settlement accordingly before this Tribunal, I find sufficient force

behind the claim advanced by the second party union in respect of the disputants involved in the

present proceeding and accordingly hold that the denial of promotion to Shri Balunkeswar Mohapatra

and 38 others, Junior Assistants (the list of which is annexed to the failure report) to the post of

Senior Assistant (S2 Grade) with effect from the dates as mentioned against each is not only

illegal but also unjustified. Since the first party, for reasons best known to it, remained content over

the issue and did not furnish either the recommendation of the Committee constituted pursuant to

Ext.11, nor the decisions of the Board of Directors on the issue and on the other hand it reveals

from Ext.17 that the issue has already been resolved, I direct the first party to take an immediate

step to give promotional benefit to the disputants treating them to be Senior Assistants (S2 Grade)

with effect from the dates when they were promoted to W4 Grade. It is made clear that in respect

of the disputants, who have expired in the meanwhile, their legal heirs be extended with the financial

benefits on account of the findings arrived at by this Tribunal and further to the disputants, who

have retired in the meantime. However, as regards the subsequent promotions as claimed in the

reference, the same being dependent upon various factors, such as work performance and subject

to the disputants’ suitability for shouldering higher responsibilities, it is for the management to

consider the same in accordance with the criterions fixed for effecting such promotions in respect

of the disputants.

The reference is answered accordingly.

Dictated and corrected by me.

BENUDHAR PATRA

24-02-2025

Presiding Officer

Industrial Tribunal

Bhubaneswar

[No. 2619—LESI-IR-ID-0034/2018-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. 2452–173+9