Leave 22-9-09

1 An overview of Leave available to Workers under the various Act In India S.Murugesan Associate Professor Madurai Institute of Social Sceinces,Madurai-2 [email protected] The Factories Act 1948, The Tamil Nadu Catering Establishment Act 1958 , The Motor Transport Workers Act 1961, The Beedi and Cigar workers conditions of employment Act 1966, The Plantation Labour Act 1961, provides the annual leave with wages to workers . Under these Acts, every worker who has worked for a period of 240 days or more in a factory during a year, shall be eligible for one day as annual leave with wages for every twenty days of work performed by him during the previous calendar year. Incase of a child, one day for every fifteen days of work performed by him. The eligible annual leave with wages shall be credited into the account of worker at the beginning of the succeeding year. The Mines Act provides one day annual leave with wages for every 16 days of work performed by him below the ground. The annual leave is otherwise called as Privilege leave in certain companies. The casual leave and sick leave is fixed by the company and its depends on policy of the company. If the establishments are not covered under the ESI Act, then the management provides sick leave as per policy (or standing orders) framed by the company. The companies can also provide one day as annual leave with wages for every less than 20 days of work based on their Leave polices. An adult employee can carry forward unavailed leave up to 30 days under the Factories Act, 40 days for adults and 50 days for child under the TN Catering establishment Act , 30 days under the Motor Transport Workers Act . The Plantation Labour Act and The TN Shops and Establishment Act alone provides 14 days and 12 days as a sick leave respectively. The TN Shops and Establishment Act also provide 12 days as casual leave. The News Paper Working Journalists ( Condition of Service ) Act 1955 provides one month as annual leave with ( full wages ) wages for every 11 month spent on duty and they can carry forward upto 90 days . They are also eligible for one month medical leave ( half wages ) for every 18 month of his service and 15 days as casual leave once in a year, 21-30 days as quarantine leave is also available to employees covered under this Act . Extraordinary leave can also be granted without wages to employees covered under this Act. Study leave can also be granted with or without wages. An Apprentice shall be entitled to 12 days causal leave, 15 days as medical leave and extraordinary leave of 10 days and to such holidays as are observed in the establishments in which he is undergoing training. National and Festival Holiday The employees are also eligible for 4 days as paid national holidays and 5 days as paid festival holidays under the National and Festival Holidays Act .The festival holiday shall be

2 decided based on the local festival of that locality. The list of such holidays shall be displayed on the notice board and will be circulated to all staff members. Any change in the notified National and Festival holidays will be at the discretion of the management & the same will be intimated to employees accordingly. National and Festival holidays falling on Sundays will also be counted in the list of National and festival holidays. Holidays are off-days granted by the employer to their workmen either voluntarily or compulsorily 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. The holidays declared under the Negotiable Instruments Act are usually applicable to Government departments more particularly to banks and they are not generally adopted by factories and other establishments in the private and public sector. The factory legislations also do not provide for the grant of festival holidays to industrial workers. But the National and Festival Holidays Act provides such holidays Generally, the occupiers of factories shall fix the number of such holidays in their standing orders or service rules. Maternity Leave Every woman shall avail maternity leave for a period of 12 weeks of which not more than 6 weeks shall precede the date of her expected delivery. Under the ESI Act 1948, to avail benefit the woman has to contribute not less than 70 days in two consecutive contribution periods. As in the case of Maternity Benefit Act, the woman has to work not less than 80 days in a year. The women can avail maternity leave for miscarriage, medical termination of pregnancy, tubectomy operation, and illness arising out of pregnancy. In case of miscarriage, a woman shall be entitled to leave with wages for a period of 6 weeks immediately following the day of her miscarriage. In case of medical termination of pregnancy, a workman shall be entitled to leave with wages for a period 12 weeks. In case of Tubectomy operation, a woman shall be entitled to leave with wages for a period of 2 weeks immediately following the day of her tubectomy operation. A woman suffering from illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall be entitled to leave with wages for a period of one month ( with half pay ). As per central govt circular of Last Month if any females is going to adopt the child less then age of 1 year she is entitled for maternity leave Maternity leave is generally not available to adoptive

mothers in India, even though an adoptive mother needs it just as much as a biological mother. The central government recently passed an order reversing this situation in part, thanks to Atmaja, an association of adoptive parents in Kolkata. Ranjita Biswas reports. And in March 2006, the central government finally passed an order, "on having considered the justification" by Atmaja, to extend to adoptive mothers the maternity leave of 135 days available to biological mothers. So, now, "adoptive mothers with fewer than two surviving children" are entitled to a 'Child Adoption Leave' (CAL) on adoption of a child "up to one year of age". As per the order, CAL shall not be debited against the leave account. Atmaja

3 had demanded CAL irrespective of the adopted child's age because older children often have a tougher time adjusting to the new surroundings. However, the government did not concede this point. At Railways Child Adoption Leave An adoptive mother on the railways with less than two surviving children may be granted leave of 135 days as 'Child Adoption Leave' on adoption of a child upto one year of age, on the lines of maternity leave admissible to natural mothers. 2. During the period of Child Adoption leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. 3.

Child Adoption leave may be combined with leave of any other kind.

4.

In continuation of 'Child Adoption leave', the adoptive mothers may also be granted, if applied for, leave of the kind due and admissible (including Leave not due and Commuted leave not exceeding 60 days without production of Medical certificate) for a period upto one year reduced by the age of the adopted child on the date of legal adoption without taking into account the period of child Adoption leave, subject to the following conditions:

(i)

This facility will not be available to an adoptive mother already having two surviving children at the time of adoption.

(ii)

The maximum admissible period of one year leave of the kind due and admissible (including Leave not due and Commuted leave upto 60 days without production of medical certificate) will be reduced by the age of the child on the date of adoption without taking into account Child Adoption leave as in the following illustrations;

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If the age of the adopted child is less than one month on the date of adoption leave upto one year may be allowed,

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If the age of child is six months and above but less than seven months, leave upto 6 months may be allowed.

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If the age of the child is 9 months and above but less than ten months, leave upto 3 months may be allowed.

5.

Child Adoption leave shall not be debited against the leave account.

The employees shall be eligible for casual leave, sick leave medical leave as per company’s standing order or policies of the company. All employees covered under the ESI Act shall eligible for maternity leave, leave for MTP, leave for Tubectomy operation, leave for illness arising out pregnancy and leave for Sickness. The establishment not covered under the ESI shall be covered under Maternity benefit Act. Procedure to avail leave

4 A worker desirous of availing of the leave earned by him during the preceding year has to make an application for such leave at least fifteen days before the date on which he wishes to proceed on leave in writing to the manager. Such leave can be availed in minimum three installments during the year. When annual leave is to be availed due to illness then even the formalities for applying for leave in advance as are not necessary Whether leave can be claimed as of right? The term "leave" means permission obtained by an employee from his employer relieving him from the duty to attend his work. Therefore 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. Even though an employee is entitled to and eligible for a certain period of leave, he cannot 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. Various Courts are also endorsed this point. The reason is that at the particular time when he applies for leave the pressure of work or exigencies of service maybe such that his services cannot he spared. But at the same time it cannot 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. All permanent employees of the company can encash their leave subject to certain terms and conditions. Basic salary + HRA + special allowance and conveyance allowance shall be taken into account while calculating leave encashment. Statutory deductions will be made before effecting payment. If an employee is discharges or dismissed from service or superannuated or quits employment during the course of the year, he shall be entitled to leave with wages at the rate of one day for every 20 days of work and also allowed to encash the un-availed leave if any standing to their credit.. In calculating leave, any fraction of leave of half a day or more shall be treated a one full day leave and any fraction of less than half a day shall be omitted. Management reserves its right to adjust the un availed leave against notice period in case an employee resigns at a very short notice. Leave without pay or leave on loss of pay: An employee may be granted leave without pay at the sole discretion of the Head of the plant in consultation with the head of the department. For this period his (earned ) leave will not accrue. Leave During Probation period: If any employee during his probation period exceeds his normal eligible leave due to any reason, his probation period shall be extended accordingly. Sabbatical Leave

5 A period of paid leave granted to an employee to do higher studies or on vacation and be guaranteed return to the job. Based on their company policies, Unpaid sabbatical leave also granted to an employee.

Factories Act

Adult – One - 20 Childone -15

Quarantine leave

40

A- 1-20 Y-1-15

30

TN Catering A-1-20 Establishment Y-1-15 Motor Transport A-1-20 Y-1-15 Beedi and cigar workers A-1-20 C-1-15 TN Shop & 12 Establsihment Newspaper & Journalist 30

40 50 30 40 30 40 24

12

90

30

Sales Promotion employees ( Conditions of Service ) Act

Ext .leave

30

15 Apprentice Act Plantation Labour Act

Casual leave

Maternity leave

Sick leave

Carry forward

Act

Annual leave with wages

Summary of leave at various Acts

12

10

14 12 weeks 2/3 wage

12 3months

15

Yes 21-30 no 30