Gujarat High Court
Ahmedabad Municipal Corporation vs Sadgunbhai Semulbhai Solanki on 30 April, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/451/2025 ORDER DATED: 30/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 451 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 12834 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 451 of 2025
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AHMEDABAD MUNICIPAL CORPORATION
Versus
SADGUNBHAI SEMULBHAI SOLANKI
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR NIRAV C SANGHAVI(5950) for the Respondent(s) No. 1
MS VACHA J NANAVATI(6588) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/04/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal is filed against the judgment and order dated 24.12.2024 passed by the learned Single Judge in Special Civil Application No.12834 of 2018, whereby and wherein the learned Single Judge has rejected the writ petition filed by the appellant-Ahmedabad Municipal Corporation (AMC) challenging the award dated 23.01.2018 passed by the Labour Court in Recovery Application No.558 of 2013 wherein the Labour Court had directed the AMC to pay Page 1 of 5 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue May 06 2025 Downloaded on : Tue May 06 21:56:30 IST 2025 NEUTRAL CITATION C/LPA/451/2025 ORDER DATED: 30/04/2025 undefined the arrears of leave encashment of Rs.1,63,620/- with a cost of Rs.1,000/-.
2. The facts recorded by the learned Single Judge in Paragraph 3 of the above judgment and order are not in dispute and the same are as under :-
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.
Page 2 of 5 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue May 06 2025 Downloaded on : Tue May 06 21:56:30 IST 2025NEUTRAL CITATION C/LPA/451/2025 ORDER DATED: 30/04/2025 undefined 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."
3. Learned advocate Mr. H.S. Munshaw has contended that the order passed by the learned Single Judge and the controlling authority require to be set aside since the respondent employee has tendered his resignation by the communication dated 07.03.2013 to be made effective from 26.03.2013 and he has not paid the amount of Rs.9,090/- towards three months notice pay and hence, the respondent employee would not be entitled to the amount of leave encashment. No further submissions are advanced.
4. The learned Single Judge after recording the above and after perusing the impugned order passed by the Labour Court rejected the writ petition. We do not find any illegality in the order passed by the learned Single Judge confirming the award passed by the Labour Court. The award passed by the Labour Court is also just and proper. The learned Single Judge after appreciating the Page 3 of 5 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue May 06 2025 Downloaded on : Tue May 06 21:56:30 IST 2025 NEUTRAL CITATION C/LPA/451/2025 ORDER DATED: 30/04/2025 undefined provisions of Rule 49(1)(2) of Gujarat Civil Service (Pension) Rules, 2002 has held that the respondent-AMC done has not accepted or rejected the application filed by the respondent employee after tendering his resignation.
5. It is noticed by us that while tendering the resignation on 07.03.2013, the employee had also clarified that the notice pay of 1/2/3 months will be paid by him. However, the appellant-AMC did not do anything on the resignation and only called upon the respondent employee by the communication dated 07.03.2013 and thereafter, also on 19.10.2013, the employee was informed to pay the aforesaid amount. Thus, if it was the case of the appellant-AMC that the resignation became ineffective for non payment of notice pay, they could have passed appropriate order of refusing to accept. It is also very pertinent to note that the employee has tendered his resignation before he reached the age of superannuation while on reaching the age of 58 years, it was from 30.04.2014, i.e. after a period of 1 year. The respondent employee had tendered his resignation after completion of 57 years and had completed his service from 1975 till the order of 2013, i.e. more than 38 years. The appellant cannot approbate and reprobate. Curiously, the stand of the appellant-AMC is that the resignation tendered by the Page 4 of 5 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue May 06 2025 Downloaded on : Tue May 06 21:56:30 IST 2025 NEUTRAL CITATION C/LPA/451/2025 ORDER DATED: 30/04/2025 undefined respondent-employee cannot be accepted, and simultaneously, he is allowed to retire at the age of 57 years, without extending the benefit of leave encashment. In case, his resignation was not found suitable for acceptance, then as a necessary sequel, he has to be treated as retired on superannuation with the benefit of leave encashment. There is no provision pointed before us that in case an employee resigns, he would not be entitled to the amount of leave encashment.
6. Thus the present appeal is devoid of merits and fails. We further clarify that we have not expressed any opinion on the resignation tendered by the respondent-employee.
7. As a sequel, the connected Civil Application stands disposed of.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(GITA GOPI, J) CAROLINE / # 25 Page 5 of 5 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Tue May 06 2025 Downloaded on : Tue May 06 21:56:30 IST 2025