Q 1 : How many leaves should be applicable in a company?
Numbers of leaves entitlement in a company depends upon state you are in. Every state has different leave entitlement and leave policies which should be seen before you define leave policy of your company. Leave policy of your company can not be less than mentioned in your State’s shop and establishment act.
You can refer below link to download some relevant attachments which describe leave entitlement in various states.
http://hrsuccesstalk.com/forum/Thread-Leave-entitlements-in-different-states-as-per-Act
Q 2: Whether an employer is bound to grant sick leave to an employee if employee submits medical certificate?
Technically speaking an employer is not bound to accept any sick leave even if it is accompanied with medical certificate in case employer is not satisfied with the certificate submitted. There is no act on this issue.
But normally when an employee submits medical certificate from a competent medical practitioner then employer should accept it otherwise it will be considered as illogical.
Q 3: Leave is right of an employee?
Leave is not right of an employee. An employee is given casual, sick and privilege leave for some purpose.
Casual leave is provided to an employee to take care of urgent and unseen matters like Parents teacher meeting called by kid’s school in short notice.
Sick leave is provided in case employee gets sick.
Privilege leaves are provided for planned long leaves for the purpose of travel, vacation etc.
Employee need to apply for each leave and take approval except in cases where approval could not be taken in advance. Employer can refuse the leave application, if not satisfied with the reason of leave. There is no set rule for which leave to be approved and not approved. It depends from reason to reason. Eg. If an employee ask for leave to watch cricket match, it can be refused.
Q 4: Mass casual leave applied by group of employees. What do an employer should do?
If the reason of mass casual leave by many employees is to hamper work intentionally, demonstrating against the employer etc then employer has all the rights to refuse such leaves and further if required taking disciplinary action.
Q 5: Do an employer can ask medical certificate for one day sick leave?
No, an employer should not ask for medical certificate for one day sick leave. In one of the case Supreme
Court has mentioned that an employee will not necessary go to see a doctor for treatment if illness is only for one day.
That is the reason most of the companies ask for medical certificate, if employee is on sick leave for 3 or more days.
Q 6: Holidays and weekly off to be included or excluded while calculating number of leaves when holidays falls in between leaves?
It is one of the questions which confuse many HR professional. Technically speaking, all leaves with pay are excluding weekly off and holidays which means even if an employee is on leave for whole month (30 days) which includes 4 weekly off and 1 holiday then employee should be considered on leave for 25 days only.
Similarly, if an employee take leave from Saturday to Monday where Sunday is weekly off then Sunday should not be counted as leave. Hence only 2 leaves should b counted.
Q 7: What is the concept for giving compensatory off on national holiday, holiday and weekly off?
Compensatory Off in case of National Holiday or Holiday : Compensatory off should be given within 90 days of national holiday or holiday for which employee has worked along with one day average daily wage
OR
Employee can choose for double rate of average daily wage.
This is as per Punjab Industrial Establishments (National and Festival Holidays and Casual and Sick Leave) Act 1965 which is extended to Delhi also.
Compensatory off in case of weekly off: Employee should be given weekly off 3 days before or after weekly off on which he worked so that worker should not work for more than 10 days consecutively without a weekly off.
Q 8: Please explain concept of Encashment of leave?
Under Factory Act there is no mention of leave encashment while in service even with consent of Management. An employee can take leave encashment while quitting services, superannuation, discharge, dismissal or death. Leave encashment should be as per average daily wage of employee. There are some companies which pay leave encashment on basic and DA, which is not correct.
Q 9: Can employee take leave during notice period?
Yes, employee has right to take leave during notice period. In one of the case, Ghanshyam Vs Delhi Metro Rail Corporate, 2007, Delhi High court has confirmed the same.
Q 10: Can Leaves be clubbed together?
As per Delhi Industrial Establishments (National and Festival Holidays and Casual and Sick Leave) Rule 1973, Casual leave cannot be clubbed with any other leave.
That is the reason most of the companies do not club Casual leave with any other leave but Sick Leave and Privilege leave can be clubbed together.
Q 11: What should be leave policy of company?
Below is the draft which should be part of company leave policy. You can make changes are per your requirement.
Leave Policies
Commencement of Leave Period: 1st January to 31st December of every year. Grant of leave shall depend upon the exigencies of the work and shall be at the discretion of the manager/management.
All regular employees are entitled to 27 days leave in a year. There are three types of leave: Casual, Sick and Earned. The details are as follows:
Casual Leave
Maximum Limit: 6 Days
Leave Application: A formal leave application needs to be submitted at least one day (or earlier) before commencement of leave. Non-compliance will result in it been treated as “Absenteeism". No Casual leaves will be entertained without prior permission.
Rules:
1. CL can be taken for minimum 0.5 to maximum 3 days. In case of more than 3 days leave, it should be taken as EL.
2. There are no casual leave carry-forwards. At the closing day of financial year any available leave under this head will lapse automatically.
3. Can not be appended with EL/SL.
4. Need to apply atleast a week before for 3 days leaves.
5. Pro rata entitlement for new joinee & resigned emloyees
6. All employees who worked for total of 10 days in a month would be eligible for prorate leave for that month.
Sick Leave
Maximum Limit: 6 Days.
Leave Application: Submission of leave application or intimation to office is expected.
Rules:
1. SL can be taken for minimum 0.5 to maximum 7 days (paid) .
2. There are no sick leave carry-forwards. At the closing day of financial year any available leave under this head will lapse automatically.
3. For all absences exceeding 3 days, medical certificate needs to be enclosed. For all absences exceeding 7 days, every additional day beyond the 7th day will be adjusted against Earned Leave in credit of the employee, subject to production of aforesaid medical papers.
4. SL can be appended with EL.
5. Pro rata entitlements for new joinee & resigned employees
6. All employees who worked for total of 10 days in a month would be eligible for prorate leave for that month.
Earned Leave/ Privilege Leave
Maximum Limit: 15 Days
Leave Application: Leave application needs to be submitted and approved by immediate manager, at least 15 days before commencement of leave.
Rules:
1. EL can be taken for minimum 3 to maximum 15 days . PL cannot be taken for less than 3 days.
2. EL are carried forward subject to maximum limit of 60 days. Any accumulation beyond 60 days, will lapse automatically at the end of the financial year
3. Pro rata basis for new joinee cannot be normally granted. It can be granted only if there are exceptional situations as given below with due approval from Reporting Manager:--
a. Death in Immediate Family (Spouse/Child/Parents)
b. Child Birth
c. Self marriage
d. Accidental Hospitalization.
4. Earned Leave will be credited in the beginning of Calender Year to every employee’s account, but the entitlement will be proportional to the number of months worked. E.g. For every month completed in the pay roll of the company 1.25 days will be credited to the employee’s entitlement.
5. For resigned employees their leaves entitlement would be calculated pro rata i.e. till their last day of work. Any excess leave taken would be adjusted in F& F.
Q 12: Share abstract from Factory act and Delhi Shop and Establishment Act which describe about leaves?
ABSTRACT FROM FACTORY ACT REGARDING LEAVE
79. ANNUAL LEAVE WITH WAGES. - (1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of - (i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;
(ii) if a child, one day for every fifteen days of work formed by him during the previous calendar year.
Explanation 1 : For the purpose of this sub-section - (a) any days of lay off, by agreement or contract or as permissible under the standing orders;
(b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
(c) the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.
Explanation 2: The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.
(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid down in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calender year.
(3) If a worker is discharged or dismissed from service or quits his employment 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, shall be 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 in sub-section (1), even if he had not worked for the entire period specified in sub-section (1) or sub-section (2) making him eligible to avail of such leave, and such payment shall be made - (i) where the worker is discharged or dismissed or quits employment, before the expiry of the second working day from the date of such discharge, dismissal or quitting, and
(ii) where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuation or death.
(4) In calculating leave under this section, fraction of leave of half a day or more shall be treated as one full day's leave, and fraction of less than half a day shall be omitted.
(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be, any leave not taken by him shall 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 a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child :
Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in sub-sections (8) and (9) or in contravention of sub-section (10) shall be entitled to carry forward the leave refused without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year:
Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin, if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947) :
Provided further that the number of times in which leave may be taken during any year shall not exceed three.
(7) 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 in sub-section (6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputes Act, 1947 (14 of 1947), or a similar Committee constituted under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with the Chief Inspector a scheme in writing whereby the grant of leave allowable under this section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be, in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.
(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, 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 shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.
(12) The unavailed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.
80. WAGES DURING LEAVE PERIOD. - (1) For the leave allowed to him under section 78 or section 79, as the case may be a worker shall be entitled to wages at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles :
Provided that in the case of a worker who has not worked on any day during the calendar month immediately preceding his leave, he shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the last calendar month preceding his leave, in which he actually worked, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the workers of foodgrains and other articles.
(2) The cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles shall be computed as often as may be prescribed, on the basis of the maximum quantity of foodgrains and other articles admissible to a standard family.
Explanation 1: "Standard family" means a family consisting of a worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.
Explanation 2: Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.
(3) The State Government may make rules prescribing - (a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed; and
(b) the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.
ABSTRACT FROM DELHI SHOP AND ESTABLISHMENT ACT FOR LEAVE
Sub-section (16)—”Leave”
The expressions ‘leave means leave of absence, that is to say, the permission obtained by an employee from his employer relieving him from the duty of attending the work with or without pay. The dictionary meaning of the word ‘leave’ being permission, unless such permission is given or leave sought is granted, it cannot be said that the person seeking leave can absent himself from duty in an unauthorised manner; Industrial Tribunal v. Rabindra Nath Sen, 1963 I LLJ 582.
22. Leave.—(1) Every person employed in an establishment shall be entitled—
(a) after every twelve months’ continuous employment, to privilege leave for a total period of not less than fifteen days;
(b) in every year, to sickness or casual leave for a total period of not less than twelve days:
Provided that:
(i) an employee who has completed a period of four months in continuous employment, shall be entitled to not less than five days’ privilege leave for every such completed period; and
(ii) an employee who has completed a period of one month in continuous employment, shall be entitled to not less than one day’s casual leave for every month:
Provided further that a watchman or caretaker who has completed a period of twelve months in continuous employment and to whom the provisions of sections 8, 10, 11, 13 and 17 do not apply by virtue of an exemption granted under section 4, shall be entitled to not less than thirty days’ privilege leave.
(1A) (i) Privilege leave to which an employee is entitled under clause (a) of sub-section (1) or under any such law, contract, custom or usage, award, settlement or agreement as is referred to in section 3, or any part of such leave, if not availed of by such employee, shall be added to the privilege leave in respect of any succeeding period to which he is so entitled to, however, the total period of such privilege leave which may be accumulated by such employee shall not at any one time exceed three times the period of privilege leave to which he is entitled after every twelve months’ employment under that clause or under such law, contract, custom or usage, award, settlement or agreement.
(ii) Leave admissible under clause (b) of sub-section (1) shall not be accumulated.
(2) If an employee entitled to leave under clause (a) of sub-section (1) of this section is discharged by his employer before he had been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him full wage for the period of leave due to him.
23. Wages during Leave.—Every employee shall be paid for the period of his leave at a rate equivalent to the daily average of his wages for the days on which he actually worked during the preceding three months, exclusive of any earnings in respect of overtime but inclusive of dearness allowance.
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