ORDER :

1. Rule. Learned advocate Mr.Y.J.Patel waives service of notice of rule for and on behalf of the respondent.

2. In the present writ petition, the petitioner has prayed for quashing and setting aside the order dated 15.02.2018 passed by the Labour Court, Surendranagar in Recovery Application (C- 2) No.105 of 2011.

3. It is the case of the petitioner that he is entitled to the amount of leave encashment and accordingly, he filed an application under Section 33C(2) of the Industrial Disputes Act, 1947 (I.D. Act) for recovery of the amount of Rs.2,83,611/- from the respondent along with 20% interest..

4. Learned advocate for the petitioner has submitted that the impugned order passed by the Labour Court is required to be quashed and set aside since the Labour Court has illegally decided the claim of the petitioner by observing that the applicant i.e. the present petitioner was under suspension from 1995 to 2006 and was paid the amount of Rs.77,898/- and the amount of Rs.39,894/- was paid as leave encashment on his retirement date i.e. 30.06.2009. It is further submitted that in fact the petitioner is entitled to the amount of Rs.2,83,611/- towards leave encashment along with 20% interest as per the calculation since the petitioner had worked from 1976 to 2009. It is submitted that the salary of the petitioner was fixed at Rs.16,605/- per month as per the 5th Pay Commission and the average salary comes to Rs.553/- per day and hence, the petitioner is entitled to Rs.3,23,505/- towards leave encashment. She has submitted that only amount of Rs.39,894/- was paid towards the leave encashment and rest of the amount of Rs.2,83,611/- was not paid. Thus, she has submitted that the impugned order may be set aside.

5. Per contra, learned advocate Mr.Patel has submitted that the petitioner would not be entitled to the aforesaid amount. It is submitted that the petitioner has to raise the industrial dispute and file a reference under Section 10 of the I.D. Act and direct application under Section 33C(2) of the I.D. Act is not maintainable for claiming such amount.

6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

7. The facts as narrated hereinabove are not disputed. The petitioner has filed the application under the provision of Section 33C(2) of the I.D. Act claiming the amount of leave encashment of Rs.2,83,611/-. The Labour Court has rejected the aforesaid application as being not maintainable. The Labour Court has also observed with regard to entitlement of the leave encashment of the petitioner and has also calculated the amount and has arrived at the conclusion that the petitioner is not entitled for the amount of leave encashment.

8. At this stage, it would be apposite to refer to the provisions of Section 33C(2) of the I.D. Act, which reads as under:

"[33C. Recovery of Money Due from an Employer- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of chapter 5A or chapter 5B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case, of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which money became due to the workman from the employer; Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the application had sufficient cause for not making the application within the said period.

(2) Where any workman is entitled to receive from