Srinivas.2500
Hr Executive
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
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Dear Seniors,
Can you any one explain what is the correct defecation of Permanent employee and wt is the definition of Temporary employee under shops & Establishment or any other labour act...
Thanks & Regards
Srinivas B

From India, Hyderabad
Dear Srinivas ji,
There is no definition of permanent employee or temporary employee under the Bombay Shops & Establishment Act and I am also sure that there no such defination in any other Shops & Establishment Act in India.
This is the specific answer to your question.

From India, Mumbai
Dear Srinivas

The Shops and Establishments Acts do not define employee in terms of permanent and temporary categories and includes every person whether employed permanently or temporarily in the establishment in connection with the business as Afzar said.This is true at least of Bombay Shops Act as Mr.keshav Koregaonkar stated..The fact that you too asked for clarification on this issue, implies that the A.P Shops Act too does not also distinguish between a permanent employee or temporary employee.

However, for your knowledge and information, I can refer to the definition of 'permamnet employee' and 'temporary employee' as contained in the model standing orders(Centarl) in Schedule-I, appended to Standing Orders Act 1946.

clause (2)(b) of the Model Standing orders defines permanent employee as under :

A "permanent workman" is a workman who has been engaged on permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or other occupation in the industrial establishment including breaks to sickness , accident, leave , lock-out(not being an illegal strike) or involuntary closure of the establishment"

It means a permanent employee is some one who is appointed in a vacancy of permanent nature or to do work of permanent or perennial nature and whose lien on employment stays irrespective his absence due to sickness or accident or legal strike or illegal lock-out.

Clause(2)(e) defines' temporary workman' is a workman who has been engaged for work which is of essentially temporary nature likely to be finished within a limited period.

It means a temporary employee is not recruited against a permanent vacancy or in any work of perennial nature. Hie is recruited to do a work which lasts for a limited period. For example, an employee appointed for a tenure of one year is a temporary employee or an employee appointed to finish a work which increased temporarily in a permanent post.Thus a temporary employee looses his line on employment after some time or after expiry of the contracted period

B.Saikumar

HR & Labour Law advisor

Mumbai.

From India, Mumbai
Dear Saikumar ji,
Thanks again for your elaboration. But it seems you have forgotten to mention the provision under ID Act. In your earlier some posting you did mention it.
Sec.25-B of the Industrial Disputes Act envisages a workman who completes 240 days to be on par with permanent workman and therefore imposes certain obligations which need to be discharged by the employer.

From India, Mumbai
Dear Azfar ji,
Who is temporary employee is nicely explained by Saikumar ji in his above posting. Temporary employee is not recruited against a permanent vacancy or in any work of perennial nature. He is recruited to do a work which lasts for a limited period.
Temporary employee is also eligible for Bonus, Leave etc.

From India, Mumbai
Hi friends

In how many spells /installments an employee/workan can avail his earned leave/Privileg leave in a claledar year.?

UP Shop and establishments Act Section 10 Rule 10 provides 3 times.

similarly model leave rules also provide 3 times in clalendar year.

factories Act Sec 79 sub-section 6 provisio second also provides that "number of times in which leave may be taken during any year shall not exceed three.

Bi-partite sttlements between Banks and their workmen Chapter 13 para-13.20 provides that 'An employee other than a member of the executive committee of a registered trade union of bank employees, will not be entitled to take privilege leave on more than 3 occasions in a calendar year.

what is the basis for grant of leave with wages under shop acts.I am of the opinion that substantially the provisions of section 78-79 of factories rules is the basis. Am I correct. Please advise.

Thanks and regards

RLDhingra Advocate,

L:abour law Consultants, Delhi

9818309937, Email:[email protected]

From India, Delhi
Dear Shri Dhingra Ji

True, there is a cap on the number of occasions for availing earned leave or privilege leave being stipulated by the Acts and settlements cited by you.My understanding of the employer's right to put a cap on the number of occasions for availing earned leave within the frame work of the Shops Acts, is as under :

1)Where the Shops Act and the rules there under specifically prescribe a procedure for availing earned leave including the number of occasions for availing it as in the case of UP Shops Act, then there is no dispute and the same can be followed.

2)Where the Shops Act and the rules there under of a State specifically prescribe a procedure for availing earned leave but remain silent on the number of occasions on which such leave can be availed, then it is not prudent for the employer to stipulate any cap on the number of occasions as it is likely to be viewed as going against the legislative intent. Had the legislature or the executive under the delegated power to frame rules,wanted to stipulate any cap, it would have done so while prescribing the specific procedure. The fact that it omitted to do so, indicates that it does not desire any such cap.

3) Where the Shops Act and the rules there under merely speak about the total leave entitlement for an employee and the manner of computation etc as observed in the Shops Act of some states and is silent on the procedure as to how the leave is to be availed etc, then in my view, the concerned Act intends to leave to the discretion of the employer to lay down the procedure for availing such leave. In such cases, in my view, the employer can stipulate a cap on the number of occasions.

B.Saikumar

HR & Labour law Advisor

Mumbai

From India, Mumbai
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