Labour Law & Hr Consultant
Partner - Risk Management
Adoni Suguresh
Sr.executive (per & Adm)
Hr Manager
Manager - Hr Excellence
Manager - Hr
+3 Others

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I am having a following query.
In this case, one of our employee met with an accident while he was on duty.He was on leave for 15 days due to hospitalization. The company has paid his all medical bills.
Now, my query is, how to calculate his present working days at the time of calculating salary.Actually the employee is requesting for full salary at the same time our director is saying that we can not give him full salary since he was on leave and that he is still on probation we cant give him leave benefits.
Expecting advice from the experts
4th June 2014 From India
Here my advise is to let him enjoy all the leaves which have been accumulated on the pro rata basis. And how ever the treatment and medical expenses have been reimbursed, so you can convince the employee to avail the which he has in his leave balance.
If that particular employee eligible for ESI benefit, let him apply for ESI leave for the medication period, in case oh he was treated by ESI doctor/hospital.
5th June 2014 From India, Hyderabad
Probation period has nothing to do with accident benefit .If he was under ESI he can get treatment and disablement benefit from ESIC.Other wise if he is an 'employee' under EC Act he is eligible for reimbursement of medical expense and 25% salary for 15 days.

5th June 2014 From India, Thiruvananthapuram
Dear Friend,

Irrespective of whether the employee comes under ESIC or not, the employee if coming to duty meets with an accident, then the employee has to be treated and the expenses need to borne by the Company.

In your case, your organization can be flexible in terms of providing leaves to that injured employee.

According to me, what you can suggest to your management, that you can allocate him leaves in advance for 20 days with full salary and deduct these 20 days of leave in next year when he will be allocated new leave balance. In January 2015, when the said employee will be given leaves based on the number of days he has worked in previous year which we can assume as 30 leaves, so the leaves credited to him will 10 days (minus 20 days which was allocated to him in 2014 as advanced leave).

With this flexible policy, the relation between the employee and the employer will be harmonious and understandable thereby indirectly making the employee work for more years and increase his commitment and loyalty towards the organization.
5th June 2014 From India, Mumbai
I endorse the view expressed by Mr.Chaturvedi.
You can consider of giving advance leave to cover his leave of absence from duty and leave advanced could be
offset next year. Please inform this to the employee.
In our company, I have implemented this (even for personal reasons - like attending marriage at out of station)
to our employees, who do not have their leaves carried forward.
In the above cited situation, the case is very genuine and the employee concerned was hospitalised,
due to accident met by him while on duty.
R K Nair
5th June 2014 From India, Aizawl
When a employee whether probationer or confirmed met with an accident he is liable to enjoy all the benefits may be under Workmen Compensation Act, 1923 or ESI or any other laws. The injured person should be granted the Accident Leave till he reports for duty . Accident leave if exceeds more than three days he shall be paid with fifteen days of salary as a compensation till he resume the work. Besides, this he is also to be reimbursed all his medical bills, hospitalizations medicines etc If any loss or permanent disablement of any part of body he should be paid Compensation as stipulated in the Act Such incidents should be brought to the notice of the authorities in writing.
No deviation in the probationer or confirmed. Accident is occurred and the employer should pay.
Adoni Suguresh
Sr.Executive (Pers, Admin & Ind.Rels)Rtd
Labour Laws Consultant
9th June 2014 From India, Bidar
What if any employee meets with an accident off the duty (on holiday) and not a beneficiary of ESI. He even does not have any mediclaim policy (neither of company or personal) and no leave balance.
10th June 2014 From India, Pune
If the employee is absenting for temporary partial disablement he will get 25% wages for the first half month on the 16th day and another 25% of monthly wages for the next half month .Thus if he is absent for 30 days he will get 50% of his monthly salary.
10th June 2014 From India, Thiruvananthapuram
Dear friends,

The central issue here is whether the affected employee, being a probationer, could be sanctioned leave for the period of confinement due to the accident and paid leave salary.From the details given in the descriptive part of the question, it is clear that the mishap was an employment- accident and because of which only the management had borne the entire expenses of the treatment.It is also not in dispute that the absence of entire 15 days was the actual period of hospitalisation for treating the injuries sustained in the employment- accident.So let's forget about the applicability of either the ESI Act or the E.C Act to the establishment or the individual as the case may be as the issue is not at all connected with the compensation payable for the injuries sustained in the accident.When it is an admitted fact that the absence from work was due to hospitalisation for the treatment of the injuries due to the employment-accident, it is my considered opinion out of pure common sense that the absence should be treated as duty and he should be paid wages.
10th June 2014 From India, Salem
Dear sir,
I agree that common sense and human decency demands tht the employee be given full paid leave where he has been involved in an accident during the course if his employment.
However, the law actually requires the employer to pay only 50% wages during such a case. The law may be bad in this case, but till it is changed, the employer is legally bound only to pay that. I too hope he will give full salary and not consider this a s leave, but he is not required by law to do that.

11th June 2014 From India, Mumbai
Dear Saswata, Will you pl quote the relevant section or rule?
11th June 2014 From India, Salem
Sec. 4 (1) (d) of employee compensation act :
Where temporary disable-
ment, whether total or
partial result from the
a half-monthly payment of the
sum equivalent to twenty-five
per cent. of monthly wages of
the workman, to be paid in accor-
dance with the provisions of sub-
section 2.
(2) The half-monthly payment referred to in clause (d) of sub- section (1) shall be payable on the sixteenth day--
Ofcourse, assumption is that the occupation is covered under the schedule. There are very few cases that are not covered by the act after the last ammendment.

11th June 2014 From India, Mumbai
All my dear friends,

For the sake of easy reference, let me briefly present a quick re-cap of the question and the answers as well given by the learned friends M/S Varghese Mathew, Ankit Chaturvedi and Adoni Suguresh:

Since the affected employee is a probationer and sanction of all admissible leave could only be done on pro-rata basis within the period of probation, how his request for sanction of leave with salary for the 15 days of confinement in the hospital for treating the injuries can be entertained is the gist of the question.

In nut-shell,whether he is entitled for salary/wages for the period of absence of 15 days due to hospitalisation immediately following the employment-accident.

Mr.Varghese's view is that if the period is treated as leave, he is entitled to only 25% of his monthly salary for the 15 days.

Mr.Chaturvedi is of the opinion that he could be granted ( what is otherwise called as Leave-not-due) Advance leave with full salary to be adjusted against his future leave.

Mr.Suguresh is of the opinion that he should be granted " Accident Leave" and in the case of exceeding 3 days, he shall be paid 15 days salary as compensation till he resumes duty.

And the last respondent has cited Sec.4(1)(d) of the Employees Compensation Act,1923 in support of the above view-points.

Sorry; I am afraid whether the learned respondents inadvertantly resorted to computation of compensation for the disability caused to the employee instead of his eligibility to ask for leave with salry/wages for the entire period of hospitalisation.The object and purpose of the E.C Act1923 is only to provide for compensation for the disability caused to the employee due to employment-accidents based on his loss of earning capacity.It is not concerned about any leave provision in this regard. The term disability is not used in the Act in its common meaning but only with reference to the loss of earning capacity caused by the employment-accident.Section 4 of the Act comes into play only on the resultant effect of the employment-accident with reference to the physical impairment or disability, its nature and extent.Sec.4(1)(d) is relating to half-monthly payment based on 25% of the monthly wages in case of temporary disablement.That's why provision for review u/s6 and commutatiton u/s7 are provided.

Therefore, my personal view is that(a) the employee should be granted leave with salary for the entire period of hospitalisation (b) his probation period may be extended accordingly.
11th June 2014 From India, Salem
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