Dear All
Can an Employer sanction " leave " to an employee beyond the eligibility provided as per the Factories Act, Shops & Estt Act, Standing Orders, Service Rules and Appointment order ?. In other words if an employee request for leave after exhausting all his eligible leave, is the Employer expected to only authorise his absence ?. Even the ESI Medical Officer in the certificate mentions that the Insured person needs abstention on medical grounds. I request Seniors / Veterens in the HR and Legal profession to clarify this important issue in the interest of all concerned, with case law if any.
Thanks and Regards
N Nataraajhan, Sakthi Management Services (HP : + 91 94835 17402 ; e-mail : natraj@sakthimanagement.com)
From India, Bangalore
199Can an Employer sanction " leave " to an employee beyond the eligibility provided as per the Factories Act, Shops & Estt Act, Standing Orders, Service Rules and Appointment order ?. In other words if an employee request for leave after exhausting all his eligible leave, is the Employer expected to only authorise his absence ?. Even the ESI Medical Officer in the certificate mentions that the Insured person needs abstention on medical grounds. I request Seniors / Veterens in the HR and Legal profession to clarify this important issue in the interest of all concerned, with case law if any.
Thanks and Regards
N Nataraajhan, Sakthi Management Services (HP : + 91 94835 17402 ; e-mail : natraj@sakthimanagement.com)
From India, Bangalore
Dear All
I once again request Seniors / Veterens in the HR / Legal profession to clarify whether an Employer can sanction " leave " to an employee, after the employee had availed all his eligible leave. In my previous employment, I was marking " AA " (Authorised Absence), in case if the employee had exhausted all his leave and that his absence was genuine and necessary - and if no request or on refusal of the request, the employee was being marked " UA " (Unauthorised Absence). In case of absence on medical grounds (ESI), the employee was being marked " MA " (Medical Absence). By resorting to this system, we could restrict unauthorised absence - and if it exceeds, we could take appropriate disc action. If the absence on medical grounds becomes unabated, we could even terminate the services of the employee on grounds of " continued ill-health " after providing reasonable opportunities.
Regards
N Nataraajhan, Sakthi Management Services (HP : + 91 94835 17402 ; e-mail :
)
From India, Bangalore
I once again request Seniors / Veterens in the HR / Legal profession to clarify whether an Employer can sanction " leave " to an employee, after the employee had availed all his eligible leave. In my previous employment, I was marking " AA " (Authorised Absence), in case if the employee had exhausted all his leave and that his absence was genuine and necessary - and if no request or on refusal of the request, the employee was being marked " UA " (Unauthorised Absence). In case of absence on medical grounds (ESI), the employee was being marked " MA " (Medical Absence). By resorting to this system, we could restrict unauthorised absence - and if it exceeds, we could take appropriate disc action. If the absence on medical grounds becomes unabated, we could even terminate the services of the employee on grounds of " continued ill-health " after providing reasonable opportunities.
Regards
N Nataraajhan, Sakthi Management Services (HP : + 91 94835 17402 ; e-mail :
From India, Bangalore
Sanction of leave other than on medical grounds beyond the prescribed maximum limit as per the contract of service or the law applicable is a matter of discretion of the employer. Normally, this discretion would be exercised by the employer subject to various conditional factors such as the performance and conduct of the concerned employee and the degree of importance of the post or job held by him, the possibilities of making alternative arrangements, the urgency as well as the necessity of the leave required and the like. However, in the case of requirement of leave on genuine medical grounds, I am unable to think whether possibility of any discretion would be there. The reasons are:- (1) despite the genuineness of the illness of the employee supported by medical opinion, the refusal of leave by the employer would be an act of inhumanity (2) The employer's contrary insistance can make him liable for compensation in the event of any mishap to the employee concerned or others attributable to the illness. (3) In the absence of any adjustment with the future leave likely to be earned, as the leave though sanctioned will be of leave on loss of pay, the employer has no monetary committment in this regard.(4) Finally, as you have mentioned in your later post, Mr.Nataraajhan, such frequent and unabated leave of absence would be a reasonable factor justifying the decison,if any, for termination on the ground of continued ill-health.
From India, Salem
From India, Salem
Dear Mr Umakanthan
Many thanks for your immediate and detailed reply. I have never suggested that the employee's request for absence on medical grounds or for genuine reasons should be refused. My basic question is whether the Employer has the right to sanction " leave " which has not been provided either by the Law or in the service conditions. My query or rather doubt is because while Section 79 of the Factories Act 1948 clearly says that the annual leave shall be with wages, there is no clarity in Cl 8 of the TN Model Standing Orders that 10 days of casual leave shall be with wages.
Moreover in Section 2 (oo) (c) of the Industrial Disputes Act 1947, it has been mentioned about termination on the grounds of continued ill-health. In fact in my previous employment, we had terminated some workers for their continued ill-health and the proof for their ill-heath was the ESI certificates produced for their absence for most of the days for several years. Ofcourse, we had taken extra care in cautioning them that they should keep good health and also gave all reasonable opportunities before their termination for their continued ill-health.
My question again is whether the Employer has the right to sanction " leave " to the employees, which he has not been empowered to do either as per law or according to the service conditions.
Regards
N Nataraajhan, Sakthi Management Services (HP : + 91 94835 17402 ; e-mail :)
From India, Bangalore
Many thanks for your immediate and detailed reply. I have never suggested that the employee's request for absence on medical grounds or for genuine reasons should be refused. My basic question is whether the Employer has the right to sanction " leave " which has not been provided either by the Law or in the service conditions. My query or rather doubt is because while Section 79 of the Factories Act 1948 clearly says that the annual leave shall be with wages, there is no clarity in Cl 8 of the TN Model Standing Orders that 10 days of casual leave shall be with wages.
Moreover in Section 2 (oo) (c) of the Industrial Disputes Act 1947, it has been mentioned about termination on the grounds of continued ill-health. In fact in my previous employment, we had terminated some workers for their continued ill-health and the proof for their ill-heath was the ESI certificates produced for their absence for most of the days for several years. Ofcourse, we had taken extra care in cautioning them that they should keep good health and also gave all reasonable opportunities before their termination for their continued ill-health.
My question again is whether the Employer has the right to sanction " leave " to the employees, which he has not been empowered to do either as per law or according to the service conditions.
Regards
N Nataraajhan, Sakthi Management Services (HP : + 91 94835 17402 ; e-mail :
From India, Bangalore
Your rejoinder is well-taken, Mr.Nataraajhan. One of the basics of Labour Jurisprudence is that no contract of employment or Labour Law confers any right on the employer in respect of his contractual or legal obligations to his employees.Therefore, the term " right" is a misnomer, I think, in so for as the employer's role in complying with the beneficial conditions of service either as per the contract of employment or the provisions of the Statute applicable. On the contrary, it is his " responsibility" or " obligation" or " duty" both statutorily and contractually. Coming direct to your question, in employment parlance " leave of absence" generally means the absence from work or from the place of work with wages as well as with the prior permission or sanction of the employer. However, there may be obvious circumstances like exhaustion of the maximum limits of all kinds of leave and the employee may still be in a dire necessity of leave. When such absence is regularised before or after its avail, it is called as Leave on Loss of Pay or Leave Without Wages for the sake of continuity of service under the same employer. So it is just a concession granted by the employer subject to his discretion over and above his statutory obligation in complying with the leave provisions of the contract of employment or any Law applicable.
From India, Salem
From India, Salem
""and leave cannot be lesser than what is specified.But where is the ban on giving more?""My question again is whether the Employer has the right to sanction " leave " to the employees, which he has not been empowered to do either as per law or according to the service conditions.""
My way of reading leave entitlements laid down by Acts are compulsorily to be given,but there is no reason/objection if employer is ready to give more than the number of days of C/L specified or Paid leave.
Leave policy varies from State to State.
Negative conotation that one cannot give more than laid down leaves is not there in my opinion.
This link can be read
Ratna Sugar Mill Mazdoor Union vs Ratna Sugar Mills Company, Ltd. ... on 9 November, 1965
Extract
17. I find considerable force in the submissions made by Sri S. N. Kacker. It is an admitted fact that the mills used to grant to its workmen more leave than is prescribed under the Factories Act and the Uttar Pradesh Shops and Commercial Establishments Act. As has already been stated above, the State Government by a notification dated 3 October 1958 framed some standing orders for sugar factories under Section 3 of the Act. Section 78 of the Factories Act is contained in Chap. VIII which deals with annual leave with wages and read thus:
(1) The provisions of this chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, agreement or contract of service:
Provided that when such award, agreement or contract of service provides for a longer annual leave with wages than provided in this chapter, the worker shall be entitled to only such longer annual leave.
Employer can therefore give more but not lesser than what is laid down in statutory orders.
From India, Pune
My way of reading leave entitlements laid down by Acts are compulsorily to be given,but there is no reason/objection if employer is ready to give more than the number of days of C/L specified or Paid leave.
Leave policy varies from State to State.
Negative conotation that one cannot give more than laid down leaves is not there in my opinion.
This link can be read
Ratna Sugar Mill Mazdoor Union vs Ratna Sugar Mills Company, Ltd. ... on 9 November, 1965
Extract
17. I find considerable force in the submissions made by Sri S. N. Kacker. It is an admitted fact that the mills used to grant to its workmen more leave than is prescribed under the Factories Act and the Uttar Pradesh Shops and Commercial Establishments Act. As has already been stated above, the State Government by a notification dated 3 October 1958 framed some standing orders for sugar factories under Section 3 of the Act. Section 78 of the Factories Act is contained in Chap. VIII which deals with annual leave with wages and read thus:
(1) The provisions of this chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, agreement or contract of service:
Provided that when such award, agreement or contract of service provides for a longer annual leave with wages than provided in this chapter, the worker shall be entitled to only such longer annual leave.
Employer can therefore give more but not lesser than what is laid down in statutory orders.
From India, Pune
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