Oral Judgment:

1. Heard Ms Maria Simone Correia, learned counsel for the petitioners and Mr Shivan Desai, learned counsel who appears with Ms A. Thorat for the respondent.

2. Twenty-one workmen, involved in the industrial dispute which culminated into award dated 10.02.2012 in the Reference No.IT/17/2008, challenged this award (impugned award) mainly on the ground that it denies them reinstatement with continuity of service and full back wages.

3. Ms Simone Correia contends that the Tribunal after having concluded that the termination of workmen's services was not legal and justified, grossly erred in denying them restatement with full back wages and all consequential reliefs. She submitted that reinstatement with full back wages is a rule and it is for the employer to make out a strong case why such rules should be deviated from. She submitted that no such case was made out and therefore, the impugned award to the extent it denies relief of reinstatement with full back wages, warrants interference.

4. Ms Simone Correia submitted that the petitioners were incorrectly designated as Apprentices and made to work for emoluments which were given minimum wages as prescribed. She submitted that there is evidence on record to suggest that other employees were paid up to Rs.15,000/- per month for discharging the same duties. She submitted that though the workmen deposed before the Tribunal about their being unemployed, no evidence was led by the employer to discharge the onus which had shifted upon it. Still, the Tribunal erred in denying the restatement with back wages to the workmen. She submitted that this is an error which sounds in the realm of perversity and warrants interference in the exercise of extraordinary jurisdiction. Ms Simone Correia produced a chart of calculation and submitted that even if the minimum wages are taken into consideration, the back wages between the termination dates and the date of the impugned award would come to Rs.4,02,168/-. She submitted that if the petitioners' salary is taken at Rs.15,000/- per month, the back wages would come to Rs.12,75,000/-. She prayed that the impugned award be modified and directions be issued for reinstatement or at least have payment of back wages on the basis indicated by her in the chart.

5. Ms Correia's contention about the reference to minimum wages or wages drawn by a regularly appointed counterpart cannot be considered. Such contentions were never raised before the Tribunal and find no serious reflection in the grounds of the petition, except to some extent in ground (xiii). The ends of justice will be substantially met if the compensation is determined on the basis indicated above.

6. Mr Shivan Desai submitted that the petitioners were appointed as Apprentices and were being paid a stipend. He submitted that the petitioners have worked only for two years i.e., between 18.01.2003 and 20.01.2005. He submitted that during their service for two years, no protest was raised about their designation or the quantum of stipend. He submitted that the findings in the impugned award to the effect that the petitioners were workmen are in fact, vitiated by perversity. However, the same were not challenged, considering the compensation of Rs.60,000/-was awarded and the decision was taken to pay the same.

7. Mr Desai submitted that the employer was allowed to challenge the findings of the Tribunal because the oral and documentary evidence on record clearly establishes that the workmen were employed only as Apprentices and their services were governed under the Apprentices Act.

8. Without prejudice, Mr Desai submitted that it is inconceivable that the petitioners, as diesel mechanic have not secured any gainful employment. He submitted that there were no pleadings in the claim statement about the absence of gainful employment. He submitted that the statement made during the evidence by two or three workmen are stereotype and inspires no confidence. He submitted that the compensation of Rs.60,000/-was just and fair, even in the crucial circumstances that the petitioners had worked for hardly two years before their services were discontinued by not offering them regular employment. He submitted that regular employment was not offered because there were no vacancies. There was no malafide or victimization, either alleged or proved. He submitted that the employment bonafide reveal that the service conditions of the petitioners were governed under the Apprentices Act and therefore, the provisions of Section 25 of the Industrial Disputes Act (the said Act) were not attracted.

9. For all the above reasons, Mr Desai submitted that this petition may be dismissed or, in any event, the employer's contention about the findings therein being perverse be accepted and be held that the reference itself was incompetent.

10. The rival contentions now fall for determination.

11. The record does show that the petitioners were appointed on 18.01.2003 by styling as "Apprentices". They were offered only a stipend, which was initially Rs.940/- per month and thereafter increased to Rs.1090/- per month. There is nothing on record to indicate that the petitioners protested such designation or the quantum of stipend. Their services were terminated on 20.01.2005 i.e. within two years of their appointments.

12. In the impugned order, the Tribunal has reasoned that the petitioners answered the definition 'workmen' under Section 2(s) of the said Act and therefore, the employer should have complied with the requirements of Section 25 of the said Act before terminating their services. For this, the Tribunal noted that the petitioners were worked for a period of 240 days continuously and that was sufficient to attract the provisions of Section 25 of the said Act.

13. The contention about unfair labour practice was not held as proved by the petitioners. The Tribunal in one line did held that termination was illegal and malafide. In so far as illegality is concerned, the Tribunal may be correct. However, there is really no evidence on record to suggest that this termination which was effected in hardly two years was malafide.

14. On the aspect of reinstatement with back wages, the Tribunal has noted stereotype statements made by three of the petitioners and not the remaining 18 that they were unemployed and not in a position to maintain themselves. The statements are identical and hardly inspire much confidence.

15. As noted earlier, there are no pleadings about the petitioners not being gainful employed. The statements made by the three petitioners in their affidavit in view of examination in chief are stereotype inspiring of no confidence. Still, considering the law in Deepali Gundu Surwase Vs Kranti Junior Adhyapak Teacher Mahavidyalaya and others((2013) 10 SCC 324), the employer should have discharged the onus that had shifted on them at least to some extent.

16. The petitioners were terminated on 20.01.2005 and the impugned award declaring their termination as illegal and invalid was made on 10.02.2012 i.e. after a period of about seven years. Some of the factors to be considered for the grant of reinstatement with back wages are the nature of services and its duration. In this case, duration of the service was hardly two years. Same was styled as 'service of apprentices' and only a stipend was paid. All this was accepted by the petitioners without any serious protest.

17. Giving due consideration to the above aspect, this is not a case where the petitioners can insist upon a reinstatement. Absence of vacancies per se may not be a ground to refuse reinstatement. However, overall circumstances like the petitioners, being designated as Apprentices and paid stipend, the duration of their service i.e. of two years does suggest that the petitioners were to be taken into regular service subject to vacancies position. The employer defaulted in compliance of the requirement of Section 25 of the said Act and that is the main reason why the Tribunal correctly faulted the termination. In the above circumstances, it would not be appropriate to direct the reinstatement, particularly, at this point of time. However, there is no justification denying the petitioners' compensation for the period between 20.01.2005 and 10.02.2012 i.e. for a period of approximately seven years between the dates of their termination and the date on which such termination was held to be illegal for want of compliance of requirements of Section 25 of the said Act.

18. The record shows that the petitioners were being paid approximately Rs.1000/- at the time of their termination. This would mean that they are paid Rs. 12,000/- for seven years. This figure would come to Rs.84,000/-. Some amount can be paid as compensation in lieu of reinstatement. It would take a figure to Rs.1,00,000/-.

19. The Tribunal has awarded compensation of Rs.60,000/- and this can be substituted with compensation of Rs.1,00,000/- in the peculiar facts and circumstances of the present case. This amount would be carried interest at the rate of 9% per annum.

20. The Tribunal had issued directions for payment of compensation of Rs. 60,000/- within two months, failing which it was directed that the same would carry interest at the rate of 9% per annum. This required to be modified by directing the payment of Rs.1,00,000/- and shall carry interest at the rate of 9% per annum, payable from 10.02.2012 till its actual payment. The Respondent Corporation is directed to pay this amount to the petitioners within two months of the uploading of this judgment and order.

21. The petition is partly allowed, and the directions to pay compensation of Rs. 60,000/- each to the petitioners is now substituted with the directions to pay compensation of Rs. 1,00,000/- together with interest thereon at the rate of 9% per annum payable with effect from 10.02.2012 till its actual payment to each of the petitioners. The respondent must pay this amount Corporation to the petitioners within two months of the uploading of this judgment and order.

22. The rule is made partly absolute in the above terms without any order for costs. All concerned must act on an authenticated copy of this order.