JUDGMENT
Mukul Mudgal, J.
1. Rule.
2. With the consent of the counsel this writ petition is taken up for final hearing.
3. This writ petition challenges the award dated 16th September, 1996 by the Central Government Industrial Tribunal, New Delhi, reinstating the services of the respondent No. 2 with full back wages with continuity in service w.e.f. 2nd October, 1984. The Tribunal found based on admission of Management’s witness No. 1 Mrs. Sudesh Dhingra that the respondent No. 2/workman joined on 28th January, 1983 and continued working up to 2nd October, 1984 with breaks. It has also been admitted that one month’s notice was not given to the workman under Section 25-F nor any notice pay or compensation given. It was also admitted that the post on which the workman was working was of permanent nature.
4. In view of the above finding the Tribunal directed the reinstatement of respondent No. 2.
5. The award is challenged on the ground that the appointment of the workman was on a leave vacancy and the following order of appointment was referred to. The relevant portion of the said order dated 28th January, 1983 reads as follows:
“Shri Mukh Ram, has been appointed as Chowkidar against the post of Man Bahadur, w.e.f. 28th January, 1983 (F.N.) as daily wages at the rate of Rs. 11.60 per day till further order.
(LEENA MAZUMDAR)
PRINCIPAL”
6. It has been urged that this shows that appointment was against the leave vacancy of Man Bahadur. The order of termination dated 29th September, 1984 is also relevant and reads as follows:
“OFFICE ORDER
Due to Dusshera holidays commencing from 30th September, 1984, this Institution does not require the services of Mr. Mukh Ram. Therefore, Mr. Mukh Ram (Daily Wage employee) is relieved from the post of chowkidar w.e.f. 2.10.84.
sd/-
(LEENA MAZUMDAR)
PRINCIPAL”
7. In the order of termination the reason stated is that the services of respondent No. 1 are not required due to Dussehra holidays commencing from 30th September, 1984. It is not stated that the appointment against leave vacancy came to end upon return of the original appointee Man Bahadur. Neither in the termination order nor even this writ petition it has been stated as to if when Man Bahadur returned and joined the services. Consequently, it is clear that the plea relating to leave vacancy cannot be sustained in the absence of any evidence about the return of Man Bahadur. Even the appointment letter says that appointment was until further orders and does not disclose that the appointment was for a fixed duration. Learned counsel for the petitioner further sought to urge that the post was abolished in the year 1990 and the award passed in 1996 does not take note of this fact. No plea has been taken before Labour Court that the post was abolished in the year 1990. The Learned counsel for the petitioner has orally stated that up to date there is no Chowkidar at all in the petitioner school and this averment has been made in paragraph 6 of the writ petition. Since this plea was not taken before the Labour Court, it cannot be allowed to be canvassed before this Court for the first time.
8. Considering the facts and circumstances of the case and the time for which the workman was employed by the petitioner school and considering the nature of the work performed by the petitioner, reinstatement is not desirable and indeed feasible. Accordingly interest of justice requires that the respondent No. 2/workman be given compensation in lieu of reinstatement. The nature of work done by the petitioner school which is a model school for the mentally deficient child also has to be given due consideration. The respondent No. 2 had worked for about one year 10 months, the salary at the time of employment was about Rs. 11.60 per day. The dispute was referred for adjudication in the year 1987 and the no dispute award was given in the year 1987 for default of respondent No. 2 and the matter was restored and the impugned award was given only in the year 1996 and granted full back wages with effect from 1984. According to respondent No. 2’s testimony his wages were about Rs. 408/- . per month. This bring the annual salary to about Rs. 5000/- per month in the year 1984. Taking all the factors into account and the litigation expenses of Rs. 5000/- plus Rs. 1000/- as costs for restoration, the interest of justice will be fully met if a lumpsum compensation in lieu of reinstatement of Rs. 30,000/- (in addition to the amount already paid as costs and litigation expenses and costs is awarded to the respondent No. 2/workman). If the amount is paid within 4 weeks, it will carry no interest but any delay beyond 4 weeks would entail interest @ 10% on the awarded amount from the date of this judgment till payment. The writ petition stands disposed of accordingly.