INFORMATION ABOUT LEAVE & HOLIDAYS: INDIA

Dear freinds,

Today I am free and hence I am sharing some knowledge with you related to LEAVE & HOILDAYS as below:

Although "leave" has been dealt under the Chapter of Factories Act, 1948 This subject being of day- to -day importance so it is imperative to explain here for citehr members knowledge and implemetation of the same to your concerned organisation.

DISTINCTION BETWEEN LEAVE AND HOLIDAYS

A reference to item 4 of schedule III appended to the Industrial Disputes Act, 1947 would make it abundantly clear that holidays stand on a different footing altogether from leave with wages, or leave facilities. Holidays are off-days granted by the employer to their workmen/staff either voluntarily or compulsarily under the force of law. On a holiday the entire business is closed and no one works while in case of leave the entire business is running. it would thus be seen that there is a fundamental distinction between leave and holidays.

FESTIVAL AND NATIONAL HOLIDAYS

The holidays declared under the Negitiable Instruments act are usually applicable to Governement Departments more particularly to banks and they are not generally adopted by factories and other establishments in the public and private sector. The factory legislation also do not provide for the grant of FESTIVAL HOLIDAYS to industrial workers. But inspite of that, some quantum of festivals and national hoildays with pay is prevalent in factories and other industrial establishment.

Generally, the occupiers of orders fix the number of such holidays in their standing orders or service rules. Apart from this, STATES are very generous in declaring paid holidays.

LEAVE ADMISSIBLE TO EMPLOYEES/ WORKERS UNDER THE FACTORIES ACT.

Leave to employees is granted on the basis of statutary provisions, agreements, settlements, customs, usages or practices. Section 79 of the Act as amended by act 94 of 1976 wef 26/10/1976 provides for the EARNED LEAVE with wages to the workers in addition to the WEEKLY OFFS and COMPENSATORY HOLIDAYS.

1) QUALIFYING SERVICE FOR ENTITLEMENT OF LEAVE:

Under section of 79 of the Act as amended wef 26/10/1976, every worker who has worked for a period of 240 days or more in a afctory during calendar year is qualified for ANNUAL LEAVE with wages to be availed by him during the subsequent calendar year or during any other calendar year. But a worker whose service commences otherwise than on the 1st day of January shall be entitled to leave with wages only if he has worked for 2/3 of the total number of days in the remainder of the calendar year.

2) CALCULATION OF LEAVE:

In regard to an adult employee, the leave with wages is to be calculated at the rate of 01 day for every 20 days of work performed by him during the previous calendar year while in the case of a child worker, such leave is to be calculated at the of 01 day for every 15 days of work performed by him during the previous calendar year and for the purpose of computation of the period of 240 days or more, the following should be deemed to be the days on which such workers have worked in a factory:-

a) any days of lay-off, by agreement or contract or as permissible under the satnding orders.

b) in the case of a FEMALE worker, MATERNITY LEAVE for any number of days not exceeding 12 weeks, and

c) the leave earned in the year prior to that in which the leave is enjoyed.

The leave admissible under the above provisions is exclusive of all HOLIDAYS whether occuring during or at either end of the period of leave. But it may be noted that an adult worker whose service commences otherwise than on the 01st day of January is entitled to 01 day leave with wages for every 20 days of work while in case of child, 01 day for 15 day work provided that such workers have worked for 2/3 of the total number of days in the remainder of the calendar year.

FREINDS, RIGHT NOW TIME IS NOT PERMITTING TO WRITE ALL POINTS BUT I WILL UPDATE YOU AS BELOW:

3) LEAVE TO DISCHARGED OR DISMISSED WORKER

4) LEAVE- HOW TO BE AVAILED OF??

5) PAYMENT IN LIEU OF UNAVAILED LEAVE ON TERMINATIOM

6) WHETHER LEAVE CAN BE CLAIMED AS OF RIGHT???

7) OBLIGATION OF AN EMPLOYER TO GRANT LEAVE

8) APPLICATION FOR LEAVE WITH REASONS IF NECCESSARY

9) OBLIGATION OF WORKERS/EMPLOYEES TO PRODUCE MEDICAL CERTIFICATES IN CASE OF SICKNESS

10) COMMENTS/NOTES

Thanks

Sidheshwar

Hi Freinds,

I backed with remaining items. Have a look, it will be useful.

Righ now I am busy so unable to post nice and informative article but I will spare time for this.

Thanks............

Remaining points.....................

3) LEAVE TO DISCHARGED OR DISMISSED WORKER

If a worker is discharged from service or quits his employments or is superannuated or dies while in service during the course of the calendar year, he or his heir or nominee, as the case may be, is entitled to wages in lieu of the quantum of leave to which he was entitled immediately before his discharge, dismissal, quitting of employment, superannuation or death calculated at the rates specified above even he had not worked for the entire period of 240 days or 2/3rd of the total number of days in the remainder of the calendar year and the payment in lieu of such un-availed leave is to be made before the expiry of the second working day from the date of discharge, dismissal or quitting but where the worker is superannuated or dies while in service the payment in lieu of such un availed leave is to be made before the expiry of 02 months from the date of such superannuation or death and in calculating leave under this provision of the Act, fraction of leave of half a day or more is to be treated as 01 full day�s leave fraction of less than � a day should be omitted. In addition to the above, it may also, be borne in mind that if a worker does not in any 01 calendar year avail the whole of the leave allowed to him during the previous calendar year then any such leave not taken by him should be added to the leave to be allowed to him in the succeeding calendar year provided that the total number of days of leave that may be carried forward to the succeeding year should not exceed 30 in the case of an adult or 40 in the case of a child. It has been further provided in the Factories Act that a worker who has paid applied for leave with wages but not has been given such leave as aforesaid shall be entitled to carry forward leave refused without any limit.

In other words, in a case where the worker applies for leave with wages but is not given such leave, then in that eventuality he is entitled to carry forward the entire un-availed leave any limit.

4) LEAVE- HOW TO BE AVAILED OF??

A worker desirous of availing leave earned by him during the preceding calendar year has to make an application for such leave at least 15 days before the date on which he wishes to proceed on leave in writing to the manager but in case the worker is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 then such leave application in writing should be made not less than 30 days before the date on which he wants leave to begin. Such leave can be availed in minimum 03 installments during the year. The leave as aforesaid can also be availed in case of illness and when such leave is to be availed due to illness then even the formalities for applying fro leave in advance as stated above are not necessary. In short, the Factories Act contemplates that if a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified above and in such a case wages as admissible under section 81 of the said Act shall be paid within 15 days in non-public utility service and in case of a public utility service within 30 days from the date of the application for leave. An application for leave which is made well in time should be ordinarily refused.

5) PAYMENT IN LIEU OF UNAVAILED LEAVE ON TERMINATIOM etc..

If the employment of a worker, who is entitled to leave as aforesaid, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory has to pay him the amount payable under section 80 in respect of the leave not taken and such payment is to be made, where the employment of the worker is terminated by the occupier. Before the expiry of the 2nd working day after such termination and where a worker who quits his employment, on or before the next pay day. It may also be borne in mind that the un-availed leave of a worker ha not to be taken into consideration in computing the period of any notice required to be given before discharge or dismissal. The intention of the legislature in enhancing sub-section (ii) of section 79 seems to enjoin upon the occupier to make payment on a day on which the factory is working, providing punishment for breach if payment is not made on the second working day after termination of the service, without affecting the right of the aggrieved worker to recover the amount in accordance with l

6) WHETHER LEAVE CAN BE CLAIMED AS OF RIGHT??

The dictionary meaning of the �LEAVE� being permission and unless such permission is given or leave sought is granted, no person can absent himself from duty in an unauthorized manner. In other words �LEAVE� means permission obtained by an employee from his employer relieving him from the duty to attend his work. It, therefore, follows that leave should be taken in advance before an employee intends to proceed on leave. In short, no workman can proceed on leave without first applying for and obtaining it.

When leave has accrued to an employee then normally it is his right to get it but from what time leave should be sanctioned has to be adjusted according to the exigencies as when it accrues or is applied for irrespective of the consideration for the business exigencies and necessities. This shows that even though an employee is entitled for a certain period of leave, HE CAN NOT AS A MATTER OF RIGHT DEMAND THAT THE SAME SHOULD BE GRANTED TO HIM AT A PARTICULAR TIME WHEN HE APPLIES FOR THE SAME OR WHENEVER HE APPLIES FOR THE SAME. The reason is that at the particular time when he applies for leave the pressure of work or exigencies of service may be such that his services can not be spared. But at the same time it can not also be denied that he has got a right to have his leave application considered and disposed of properly, bona fide and in accordance with law. In other words, WHEN A DISCRETION IS CONFERRED ON THE EMPLOYER THEN THE EXERCISE OF THAT DISCRETION HAS TO BE EXERCISED IN THE BONA FIDE EXERCISE OF THE POWERS AND NOT IN A MALA FIDE MANNER.

7) OBLIGATION OF AN EMPLOYER TO GRANT LEAVE

Unless leave is applied for, the question of its sanction does not arise and in case a worker remains absent from work without leave having been granted or sanctioned to him, he exposes himself to disciplinary action. Normally when leave has accrued to an employee it is his right to get it but from what time leave should be sanctioned has to be adjusted according to the exigencies of business of the employer and that leave can not be sanctioned as and when it accrues or is applied for, irrespective of the consideration for the business exigencies and necessities. An employer is, however, under an equitable obligation to grant leave to an employee up to the maximum limit at his credit for bona fide reasons and so long as the employee does not exceed that limit or does not absent himself without any prior sanction or previous intimation under unforeseen circumstances, he can not be charged with any irregularities in attendance. The reason is that every man is likely to have social obligations and he may fall ill at times and there may be deaths and illness in his family. It will be idle for the employer to expect that one can not be taken ill. Though in Law the anxiety of employer to carry his business has preference within certain limits set out by statutory provisions and service rules the fact that some times the requirements of an employee may be so urgent and pressing that it may be impossible for him to wait, can not be lost sight of. It, therefore, follows that EMPLOYER CAN NOT REFUSE LEAVE TO A WORKMAN DUE TO CIRCUMSTANCES BEYOND HIS CONTROL.

8)APPLICATION FOR LEAVE WITH REASONS IF NECCESSARY

It is now well established that whenever an employee wishes to proceed on leave, it is necessary that he must make an application for leave with reasons therefore. The reasons for taking leave should also not be vague. In fact, remaining absent without any application or intimation is a serious misconduct. Even if the close relation of an employee is stated to be ill, the employee can not walk out of the establishment without applying and taking anybody�s permission and when such an act is repeated then he can be discharged and in that eventuality his discharge would be bona fide. The principle that leave should be taken in advance is also applicable in case of EXTENSION OF LEAVE. A worker is, therefore, under an obligation to send his application for leave sufficiently in advance so that the leave may be sanctioned to him before his original leave expires. The reason is that if a belated application is received then it is entirely at the discretion of the employer whether to sanction it or not. In case the leave is sanctioned then the absence is completely justified because the employer retains the right to sanction leave with retrospective effect. In case, the extension is not granted then the worker would be treated as ABSENT and would be liable to disciplinary action. Sending of an application for EXTENSION OF LEAVE the same day on which the employee is scheduled to report for duty by ordinary post is MISCONDUCT. The ordinary rule, however, is that EXTENSION SHOULD BE APPLIED FOR WELL IN TIME WITH REASONS THEREFORE.

9) OBLIGATION OF WORKERS/EMPLOYEES TO PRODUCE MEDICAL CERTIFICATES IN CASE OF SICKNESS

The ordinary rule is that in case of grant of leave, application should be sent in advance but this rule is subject to some relaxation in case of sickness. It is now generally recognized that the employer has a right to demand leave application even in case of sickness accompanied by the medical certificate, but when the application for sick leave is accompanied by a medical certificate then the said certificate should generally be believed. It is also generally held that when the application for sick leave accompanied by the medical certificate is received then it should be granted. In such a case when the leave is refused by the employer without any sufficient reason the action of the employer can not be sustained as being arbitrary and capricious. But is does not mean that the employer can not demand a medical certificate and can not refuse sick leave when asked for an account of the failure of the workman to produce the medical certificate. The reason being that it is within the right of the employer to insist upon the production of medical certificate, especially when the workman remains absent without leave he is to blame himself and not the employer.

10) COMMENTS/NOTES

The shops and establishment which are not governed by the Acts are covered by the Shops and Establishments Acts as enacted by every State. The quantum, qualifying period and accumulation of leave varies in some States but the PRINCIPLES pertaining to leave are by and large the SAME.

Every shop and establishment (except hotels, restaurants, theatre etc..) should be remain closed for one day of the week as specified the State Government for different areas and different categories of establishments.

Every shop and establishment in Delhi, shall remain closed on the 03 National Holidays, viz Republic Day (26th January), Independence Day (15th August) and Gandhi Jayanti (2nd October).

Thanks..............If any querry, most welcome.

Regards

Sidheshwar