If an employee does double duty (16 hours) in a day, will that equals to 240 days working in six months?
No! Section 25B of the I.D. Act does not contemplate any such basis of calculation where double duty in single day is to be counted as two days for the purpose of calculation of 240 days working of continuous service. Madras High Court in the case of Tamil Nadu State Transport Corporation vs. N. John Henri Raj 2008 LLR 1208 has held that while calculating 240 days in preceding calendar year, the double working of a workman on a day will not be taken into consideration since it is only for the purpose of overtime payment and not for reckoning of continuous service.
Can employer have two set of leaves in office where higher leaves are given to officers in comparison to junior staff who are given as per shops and commercial Establishments Act of the State.
Yes! It can be. But care is to taken that no employee should get leave less than what is prescribed in the Act. Higher leaves van be given to senior officers. SC in the case of Dalmia Cement (Bharat) Ltd. vs. Workmen AIR 1967 SC 209 has held that where clerks were 12 days casual and 12 days sick leaves and subordinate staff were given only 12 days sick and casual leaves, tribunal awarding sick and casual leaves to subordinate staff equal to clerks was not justified in going beyond the limit as prescribed of 12 casual or sick leaves in Delhi Shops Act.
What are the kind of leaves in various states Shops and Establishment Acts?
Generally in most of the States Shops and Commercial Establishment Acts, there are three kind of leaves- Earned/privilege, sick and casual. For example in Delhi, earned leaves are 15 while casual and sick leaves are 12in a year. In UP, earned leaves are 15, while casual leaves are 10 and sick leaves are 15 in a year. In Haryana & Punjab earned leaves one @ of 20 working days while casual leaves are 7 and sick leaves are 7 in a year. In Uttrakhand, earned leaves are one @ twenty working days while casual leaves are 8 in a year. There is no provision for sick leaves. In Himachal Pradesh earned leaves are @ 1 for every 12 working days, casual leaves are 7 and sick leaves are 7 in a year. In Gujarat earned leaves are @ 1 for every 20 working days, casual leaves are 7 and sick leaves are 7 in a year. In Maharashtra, earned leaves are @ 1 for every 20 working days, casual leaves are 8 and festival holidays are 8 in a year. In Rajasthan there is only provision for earned leaves @ 1 for every 20 working days. There is no provision for casual and sick leaves. In MP, earned leaves are 30 after 12 months of continuous service and casual leaves are 14 in a year. There is no provision for sick leave. In Karnataka earned leaves are @ 1 for every 20 working days. Sick leaves are 12 in a year. In Tamil Nadu earned, casual and sick leaves are 12 each in a year. In Telangana, earned leaves are 15, casual and sick leaves are 12 each in a year. In Kerala earned, casual and sick leaves are 12 each in a year. In Andhra Pradesh earned leaves are 15, casual and sick leaves are 12 each in a year. In west Bengal earned Leaves are 14,casual leaves are 10 and sick leaves are 14 in a year. In Bihar, earned leaves are 1@ twenty working days, while casual and sick leaves are 12 each in a year. In Jharkhand earned leaves are 1@ twenty working days, while casual and sick leaves are 12 each in a year. In Orissa earned leaves are 1@ twenty working days while sick leaves are 15 each year. There is no provision for casual leaves. In Assam earned leaves are 16, casual and sick leaves are 12 each in a year.
Is management bound to grant leave to workman if he remained absent because he was arrested for some offence and later on apply for leave for such period of absence?
No! Management is not bound to grant leave to such workman who remained in police custody or in jail for some offence and later reports for duty and applies. S.C. in the case of Indian Iron & Steel Co. vs. workmen 1958 SCR 667 has held that it is not justified to hold that if a workman is arrested, then company management is always required to grant him leave. Establishing of charge has no relevance with grant of leaves.
What action can be taken when employee overstays the granted leaves?
There may be many situations and circumstances for which employee cannot be blamed for overstay on the happening of any such contingency like illness, death in family etc. Absence of the workman from work if due to any cause beyond his control, it would not be reasonable for you to refuse leave to the extent required. In such cases termination on account of absenting without leave will be held illegal as held by Delhi High Court in the case of Delhi Cloth and General Mills Ltd. vs. Piaralal 1976 Lab IC 21. In this case workman was detained under Defence of India Rules and he requested for leave for an indefinite period of about 6 months. Court said that the circumstances were beyond the control of the workman. So you have to closely analyse and examine the circumstances under which workman overstays leave and decide whether the circumstances were beyond his control or not.
Whether Employer is liable to pay PF contribution on Back wages when awarded in full by the Labour Court along with reinstatement and benefits?
Yes! When the Labour Court awards full back wages with all benefits along with reinstatement declaring the dismissal invalid, Employer is liable pay share of EPF contribution on basic wages of the employee for the entire period when he was kept out of service because of illegal termination. Kerala HC in the case of Manager, Wallardie Estate Harrison Malyalam Ltd. vs. Regional Provident Fund Commissioner 2020 (166) FLR 848 has held that full back wages would also include the contribution towards the EPF and other benefits to which employee was legitimately entitled. Division Bench of the Kerala HC in the case of K.Y. Varghese vs. Puthuppady Service Co-operative Bank Ltd. and others (Judgment dated 6.6.2008 in W.A. no. 881 of 2007) has also held that when a workman was reinstated in service with full benefits including back wages, he should have been deemed to be in service from the date on which he was kept under suspension till the day he was reinstated in service. SC in the case of Prantiya Vidyut Mandal Mazdoor Federation vs. Rajasthan State Electricity Board 1992 (2) SCC 723 has held that when the award gives revised pay scales the employees become entitled to the revised emoluments and when the said revision is with retrospective effect, the arrears paid to the employees as a consequence are the emoluments earned while on duty. SC in another case of Changdeo Sugar Mills vs. Union of India 2002 (SCC) 519 has held that amounts paid under a settlement between employer and employees as wages for a period when the employees were deemed to be on duty as in the case of lock out would be held as basic wages for EPF contributions. However, Gujrat HC in the case of Swastik Textile Engineers Pvt. Ltd. vs. Virjibhai Mavjibhai Rathore 2008 I CLR 953; 2008 (116) FLR 1002 has taken a different view. It has held that back wages awarded by the court are not the same as wages paid to an employee for the duties performed by him. Even if the Labour Courts order is about reinstatement with back wages depicting continuity in service, it will not carry the meaning period spent on duty. The purpose to allow continuity in service by Labour Court would be that such period would not be treated as break in service for the purpose of service benefits like pay, increments, leave, allowances, pension etc. In the absence of a specific order that such period should be treated as period on duty, such period cannot be held to be period spent on duty. Moreover, Labour Court award of only 50% back wages also intend to show that the period of absence from duty on account of illegal termination from service was not intended to be treated as period spent on duty. Court also held that amount of back wages paid to workman will not constitute basic wages because when the court awards back wages for the period the employee was kept away from duty, what the court does is to award damages assessed in terms of whole or part of the wages the workman would have earned had he been continued in service without interruption. It is not the same as payment of wages for the duties performed or for the period deemed to have been spent on duty. So the situation can be different when the back wages are granted in full and when it is granted in some percentage and not full.
Can employer have two set of leaves in office where higher leaves are given to officers in comparison to junior staff who are given as per shops and commercial Establishments Act of the State.
Yes! It can be. But care is to taken that no employee should get leave less than what is prescribed in the Act. Higher leaves van be given to senior officers. SC in the case of Dalmia Cement (Bharat) Ltd. vs. Workmen AIR 1967 SC 209 has held that where clerks were 12 days casual and 12 days sick leaves and subordinate staff were given only 12 days sick and casual leaves, tribunal awarding sick and casual leaves to subordinate staff equal to clerks was not justified in going beyond the limit as prescribed of 12 casual or sick leaves in Delhi Shops Act.
What are the kind of leaves in various states Shops and Establishment Acts?
Generally in most of the States Shops and Commercial Establishment Acts, there are three kind of leaves- Earned/privilege, sick and casual. For example in Delhi, earned leaves are 15 while casual and sick leaves are 12in a year. In UP, earned leaves are 15, while casual leaves are 10 and sick leaves are 15 in a year. In Haryana & Punjab earned leaves one @ of 20 working days while casual leaves are 7 and sick leaves are 7 in a year. In Uttrakhand, earned leaves are one @ twenty working days while casual leaves are 8 in a year. There is no provision for sick leaves. In Himachal Pradesh earned leaves are @ 1 for every 12 working days, casual leaves are 7 and sick leaves are 7 in a year. In Gujarat earned leaves are @ 1 for every 20 working days, casual leaves are 7 and sick leaves are 7 in a year. In Maharashtra, earned leaves are @ 1 for every 20 working days, casual leaves are 8 and festival holidays are 8 in a year. In Rajasthan there is only provision for earned leaves @ 1 for every 20 working days. There is no provision for casual and sick leaves. In MP, earned leaves are 30 after 12 months of continuous service and casual leaves are 14 in a year. There is no provision for sick leave. In Karnataka earned leaves are @ 1 for every 20 working days. Sick leaves are 12 in a year. In Tamil Nadu earned, casual and sick leaves are 12 each in a year. In Telangana, earned leaves are 15, casual and sick leaves are 12 each in a year. In Kerala earned, casual and sick leaves are 12 each in a year. In Andhra Pradesh earned leaves are 15, casual and sick leaves are 12 each in a year. In west Bengal earned Leaves are 14,casual leaves are 10 and sick leaves are 14 in a year. In Bihar, earned leaves are 1@ twenty working days, while casual and sick leaves are 12 each in a year. In Jharkhand earned leaves are 1@ twenty working days, while casual and sick leaves are 12 each in a year. In Orissa earned leaves are 1@ twenty working days while sick leaves are 15 each year. There is no provision for casual leaves. In Assam earned leaves are 16, casual and sick leaves are 12 each in a year.
Is management bound to grant leave to workman if he remained absent because he was arrested for some offence and later on apply for leave for such period of absence?
No! Management is not bound to grant leave to such workman who remained in police custody or in jail for some offence and later reports for duty and applies. S.C. in the case of Indian Iron & Steel Co. vs. workmen 1958 SCR 667 has held that it is not justified to hold that if a workman is arrested, then company management is always required to grant him leave. Establishing of charge has no relevance with grant of leaves.
What action can be taken when employee overstays the granted leaves?
There may be many situations and circumstances for which employee cannot be blamed for overstay on the happening of any such contingency like illness, death in family etc. Absence of the workman from work if due to any cause beyond his control, it would not be reasonable for you to refuse leave to the extent required. In such cases termination on account of absenting without leave will be held illegal as held by Delhi High Court in the case of Delhi Cloth and General Mills Ltd. vs. Piaralal 1976 Lab IC 21. In this case workman was detained under Defence of India Rules and he requested for leave for an indefinite period of about 6 months. Court said that the circumstances were beyond the control of the workman. So you have to closely analyse and examine the circumstances under which workman overstays leave and decide whether the circumstances were beyond his control or not.
If an employee does double duty (16 hours) in a day, will that equals to 240 days working in six months?
No! Section 25B of the I.D. Act does not contemplate any such basis of calculation where double duty in single day is to be counted as two days for the purpose of calculation of 240 days working of continuous service. Madras High Court in the case of Tamil Nadu State Transport Corporation vs. N. John Henri Raj 2008 LLR 1208 has held that while calculating 240 days in preceding calendar year, the double working of a workman on a day will not be taken into consideration since it is only for the purpose of overtime payment and not for reckoning of continuous service.
Whether Employer is liable to pay PF contribution on Back wages when awarded in full by the Labour Court along with reinstatement and benefits?
Yes! When the Labour Court awards full back wages with all benefits along with reinstatement declaring the dismissal invalid, Employer is liable pay share of EPF contribution on basic wages of the employee for the entire period when he was kept out of service because of illegal termination. Kerala HC in the case of Manager, Wallardie Estate Harrison Malyalam Ltd. vs. Regional Provident Fund Commissioner 2020 (166) FLR 848 has held that full back wages would also include the contribution towards the EPF and other benefits to which employee was legitimately entitled. Division Bench of the Kerala HC in the case of K.Y. Varghese vs. Puthuppady Service Co-operative Bank Ltd. and others (Judgment dated 6.6.2008 in W.A. no. 881 of 2007) has also held that when a workman was reinstated in service with full benefits including back wages, he should have been deemed to be in service from the date on which he was kept under suspension till the day he was reinstated in service. SC in the case of Prantiya Vidyut Mandal Mazdoor Federation vs. Rajasthan State Electricity Board 1992 (2) SCC 723 has held that when the award gives revised pay scales the employees become entitled to the revised emoluments and when the said revision is with retrospective effect, the arrears paid to the employees as a consequence are the emoluments earned while on duty. SC in another case of Changdeo Sugar Mills vs. Union of India 2002 (SCC) 519 has held that amounts paid under a settlement between employer and employees as wages for a period when the employees were deemed to be on duty as in the case of lock out would be held as basic wages for EPF contributions. However, Gujrat HC in the case of Swastik Textile Engineers Pvt. Ltd. vs. Virjibhai Mavjibhai Rathore 2008 I CLR 953; 2008 (116) FLR 1002 has taken a different view. It has held that back wages awarded by the court are not the same as wages paid to an employee for the duties performed by him. Even if the Labour Courts order is about reinstatement with back wages depicting continuity in service, it will not carry the meaning period spent on duty. The purpose to allow continuity in service by Labour Court would be that such period would not be treated as break in service for the purpose of service benefits like pay, increments, leave, allowances, pension etc. In the absence of a specific order that such period should be treated as period on duty, such period cannot be held to be period spent on duty. Moreover, Labour Court award of only 50% back wages also intend to show that the period of absence from duty on account of illegal termination from service was not intended to be treated as period spent on duty. Court also held that amount of back wages paid to workman will not constitute basic wages because when the court awards back wages for the period the employee was kept away from duty, what the court does is to award damages assessed in terms of whole or part of the wages the workman would have earned had he been continued in service without interruption. It is not the same as payment of wages for the duties performed or for the period deemed to have been spent on duty. So the situation can be different when the back wages are granted in full and when it is granted in some percentage and not full.