IMPORTANT POINT
The right to encash earned leave is a property right protected under the Constitution, and depriving an employee of this right without valid statutory provision is impermissible.

JUDGMENT :

M. K. Thakker, J.

1. Rule returnable forthwith. Learned advocate Mr.Nirav Singhavi waives service of notice of Rule on behalf of respondent.

2. This petition is filed under Article 226 and 227 of the Constitution of India thereby, challenging the award passed by the learned Labour Court, Ahmedabad in Recovery Application No.558 of 2013 dated 23.01.2018 whereby, the application preferred by the respondent came to be allowed and the petitioner was directed to pay arrears of leave encashment of Rs.1,63,620/- with cost of Rs.1,000/-.

3. It is case of the petitioner that respondent herein was having education qualification of SCC pass and was offered the work in the year 1975 and he worked upto 01.04.1981. Thereafter, appointment of the respondent was made on the post of Turner with effect from 01.01.1982 in the pay scale of 266-350. As respondent failed to clear departmental exam he was reverted to the post of Helper in the year 1986 and was placed in the pay scale of 196-231. Thereafter, his appointment was made as Junior Clerk from 09.01.1989 and was granted pay scale of 950-1500. Again he was reverted back to the post of Helper from 04.01.1993 due to not passing the departmental exams instead of having appeared in three attempts and again he was placed in the day scale 750-940. The respondent filed Civil Suit being SCA No.771 of 1993 before the learned Civil Court, Ahmedabad against the reversion order and due to interim relief his service was continued on the post of Junior Clerk, the suit was finally disposed of on 28.09.2012 with a direction to the Authority to consider the case of the respondent sympathetically within a period of two months and thereafter, the respondent was continued to the post of Junior Clerk up to 04.01.1993. It was decided by the petitioner that respondent be given one chance to appear in the departmental examination which is to be held on November, 2012 but the respondent voluntarily gave up the opportunity in writing and in view of the same, respondent was reverted to the post of Helper vide order dated 05.03.2013 and was placed in the pay scale 4440-7440 with a grade pay of Rs.1300/-.

3.1. On the next day i.e on 06.03.2013 he tendered resignation voluntarily without depositing of notice pay for one month informing that he proposed to be retired with effect from 07.03.2013, that resignation remained unattended and thereafter, on 09.10.2013 and 08.11.2013 he was informed to deposit amount of notice pay however, the respondent remained failed in depositing the same. In absence of the notice pay the resignation remain unaccepted. However, the respondent failed to report on duty and ultimately attained the age of superannuation on 30.04.2014. As respondent remained unauthorizedly absent from 06.03.2013 to 30.04.2014 his application for benefit of leave encashment for the period of ten months amounting to Rs.2,82,703/- was remain unattended. The recovery application came to be filed before the learned Labour Court being no.588 of 2013 praying to grant the benefit of leave for the period of 10 months which came to be allowed by the learned Labour Court and the same is subject matter of challenge before this Court.

4. Heard learned advocate Mr.H.S.Munshaw for the petitioner-Corporation and learned advocate Mr.Nirav Singhavi for the respondent-workman.

4.1. Learned advocate Mr.Munshaw submits that despite detailed written statement filed before the learned Labour Court containing that due to non payment of notice pay his application for resignation was not accepted and therefore, he would not be entitled for the benefit of leave encashment from 06.03.2013 to 30.04.2014. Learned advocate Mr. Munshaw submits that workman has not worked from 06.03.2013 to 30.04.2014 though he was not permitted to resign and despite 2 notice were addressed intimating to deposit one month notice pay but neither the payment was made nor he resumed the duties. Learned advocate Mr.Munshaw submits that learned Labour Court has co