The Labour Court has jurisdiction to hear claims under Section 33(C)(2) of the Industrial Disputes Act, affirming employee rights to leave encashment as a property interest without valid statutory loss provisions.

JUDGMENT :

M. K. THAKKER, J.

1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the order passed by the learned labour court whereby, learned labour court has allowed the recovery application filed under section 33(C)(2) by the respondent whereby, the petitioner was directed to pay the amount of leave encashment of Rs.6,85,620/- with interest at the rate of 8% considering the retirement dated of 31.05.2020 till the recovery and further ordered to pay expenses of Rs.10,000/-.

2. It is the case of the present petitioner that the respondent was serving as an in-charge Officer and he completed his 28 years of service and retired on 31.05.2020. At the time of retirement in the leave card of the respondent, there was 300 leave which was credited which was not paid by the respondent, therefore, the application under section 33(C)(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the “I.D.Act”) was filed which was not paid by the present petitioner. Application under section 33(C)(2) of the I.D.Act was filed before the learned labour court, learned labour court, after considering the evidence, more particularly, the cross-examination of the witness of the present petitioner who admitted in his evidence that there were 300 leave credited as stated in the leave card which was withheld by the petitioner without following due procedure of law, has allowed the application filed under section 33(C)(2) of the I.D.Act which is subject matter of challenge before this Court.

3. Heard learned advocate Mr.Nirav.C.Thakkar for the petitioner.

4. Learned advocate Mr.Thakkar submitted that instead of filing the reference with regard to the leave encashment, application under section 33(C)(2) of the I.D.Act is filed. It is submitted by the learned advocate Mr.Thakkar that learned court would not have jurisdiction to decide the first claim of the respondent with regard to the entitlement and then to proceed by computing the benefits. Learned advocate Mr.Thakkar submits that the claim which was raised is first required to be adjudicated by the learned reference court under section 10 of the I.D.Act. However, instead of same, application which is in the nature of execution application came to be filed, hence the impugned award deserves to be set aside by allowing the present petition.

5. Having considered the arguments advanced by the learned advocate for the petitioner as well as referring to the reasons assigned by the learned labour court, it emerges from the record that at the time of retirement i.e. on 31.05.2020, payment of leave encashment of 300 days was not made as per the documentary evidence produced below mark 7/1 300 days’ leave encashment was in the credit of the leave card. The explanation offered by the present petitioner for withholding the said benefit was with regard to the recovery of the amount from one AGRO Industries who has taken goods on credit. It is not disputed by the witness of the present petitioner that no departmental inquiry was initiated, neither any separate order was passed withholding the said benefits.

6. At this stage, reference of the decision rendered by this Court in the case of Ahmedabad Municipal Corporation Versus Sadgunbhai Semulbhai Solanki in Special Civil Application No.12834 of 2018 is required to be referred to which is reproduced herein below:-

“7.1 The gratuity case which was filed by the respondent was also awarded in favour of the respondent by holding that respondent would be entitled for the gratuity amount considering the date of retirement i.e 07.06.2013. Though above order is challenged before the higher forum but is ultimately accepted by the petitioner Corp