Dinesh Divekar
Business Mentor, Consultant And Trainer
Labour Law & Hr Consultant
Aniket Pathak
Sr. Executive Hr

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I have doubt regarding employee leave policy, An employee can take leave during notice period.
For Ex:- X is an employee of an organization and he resigns. at time of resignation he has 14 leave(unpaid) balance. Now he is serving notice period. during the notice period if he takes leave in that case, should we deduct from his leave balance or deduct from his salary.
Is there any law for this or does it depend on company policy only?

From India, Delhi
The subject of whether an employee can avail of leave during notice period is one that comes up for discussion time and again.
Please note that employee is perfectly eligible to get leave during the notice period.
Notice period is a buffer period created for the organisation's convenience. This buffer period gives legroom for the organisation to search replacement. There is no need to link employee leave and this buffer period as both are independent.
Eligibility criteria for employee leave are under the provisions of the various labour laws. However, no law states that it should be linked to the notice period.
Dinesh Divekar

From India, Bangalore
Agreed with your point. However, the employee would be on leave during his notice period then what is the benefit of notice period for organization? If he would not be present at work then what is all about the buffer period. Work will get hampered till his replacement joins.
From India, Delhi
Dear Sandeep,
If regular work hampers as employee is on authorised leave, then anyway it will hamper whether the employee is on notice period or not! How can you have a situation wherein work does not hamper if employee is not on notice period and it starts hampering sooner employee is on notice period.
From your both the posts it appears that you have manpower crisis. If yes, then you need to revise the criteria on which you have made the manpower planning. Parameters of manpower planning are employee's authorised leave, sickness, official visits to the outstation, unauthorised absence and above all the time gap when the resigning employee exits but newcomer is yet to join. In case if you have not made provision for the standby manpower, then it is the administration's fault and for this employee cannot be held at ransom!
Dinesh Divekar

From India, Bangalore
Dear Sandeep,
The objective of notice clause in the contract of employment before its unilateral termination by one party is to give the other party some sufficient time to make alternative arrangement only. It does not restrict the employee's or employer's benefits or obligations respectively, whether they be statutory or otherwise, flowing out of the contract. For example leave and annual increment - leave can be statutory or by contract; just because an employee is in notice period due to his prospective resignation on a future date or his retrenchment effective from a future date, he can not be forbidden from his leave benefits during that phase. The employer should sanction the leave applied for or can reject it on the grounds of work expediency but should permit encashment in the F&F Settlement but can not deny both. Similarly, if annual increment either as per the contract of employment or under the collective bargaining agreement falls due during the notice period of the employee, it should be sanctioned.
Coming to your argument of disruption of work, the inability of the employer to find a suitable replacement within the notice period or the non-availability of an alternative employment to the employee can not be an impediment in the smooth flow of the agreed notice period. If you realize that notice period is a phase in employment facilitating a happy and peaceful separation, it is an ideal HR practice.

From India, Salem
Dear Colleague,
The view expressed by my learned colleagues is in favour of granting leave during notice period.
First of all ,there is no law which requires granting or refusing leave during the notice period. It is entirely left to the company to make policy as to grant, prohibit or adjust against balance leave and preferably incorporate it in the appointment letter.
I am in favor of not allowing leave during notice period, to enable resigning employee to finish the important tasks before he leaves and make desk clear for the next incumbent.
Another reason is to curb, if not entirely eliminate tendency on the part of departing employee to become loose and relaxed but to make him feel more responsible during notice period.
The purpose of notice period by either side is to allow time to finish all the tasks by the employee, as well as to find replacement by the employer as soon as possible.
But granting leave during the notice period as well as the clause in many appointment letters providing for paying salary in lieu of notice by either side, runs contrary to the very purpose of the notice period.
Vinayak Nagarkar
HR- Consultant

From India, Mumbai
In our country Leave is mandated by law, the company must be comply on how many numbers of leaves will be given to the employee. Approval of leave its depend on the company policy and procedure.The company have the right to dissapprove the application of leave due to operational needs, If the employee finished is grace period the total balance of leave will be include in the computation of is final pay (note) if the employee did not comply you can mark it NOT CLEARED
From Philippines, Angeles City
Dear Sandeep,
Can employee can take leave during notice period?
The answer to the question is ‘YES’ as well ‘NO’. It depends upon the situation and mutual understanding.
If the employee has gone on leave at his wish is a subject to action. If gone on sanctioned leave then act upon the authority who did so. If you are intended that the employee to work till end of notice period in the place till new person takes over the charge. Then why did you sanction leave when the employee has submitted his resignation?
Do you have any policy or system in place to follow? There is no meaning to raise question if you do not have any guiding policy in the establishment to take care all these.
Your question is justified because the “notice period’ system is followed for buying out time for both to make further arrangement.
The leave is being availed is earned leave by the employee, which has to be paid by the employer if not availed by the employee during his tenure of service.
Hope all the query related to posting discussed thoroughly to understand where the lapse is.

From India, Mumbai
Dear Sandeep,
After getting edified by the seniors you would have had answer to your query. However i am still trying to figure out that how a person can have a leave balance with unpaid leaves in it. Anyways, when we talk about the notice period i don't know what is written in the leave policy of your company but if the employee is trying to have a proper exit and serving the notice period he/she should be allowed to take leave on request looking at the Legitimacy of the reason behind the leave.
Please note that; No leave in Notice period doesn't mean that "You live or die i don't care you have to come to office as you are on notice period"

From India, Pune
Dear Sandeep,
I think the matter can be simplified by looking at each aspect separately and objectively, as below:
1. When an employer inserts a clause regarding notice period in the terms of employment, is it a legally valid provision? Yes. There is no law preventing an employer to impose reasonable time frame within which the employee should complete unfinished responsibilities, hand over charge to his/her successor and then proceed to get relieved.
2. To avoid confusion as to whether leave taken during notice period can be counted as part of 'notice period' also; or not; it is better to make a provision in the terms of employment requiring the employee to BE PRESENT ON DUTY for ... number of working days to complete the notice period. Depending on how important the position is, the notice period (of active & on-the job availability) could be determined. Say.. 25 days or more, as per requirement.
3. By doing this, mockery of the system will be avoided wherein an employee who is supposed to give one month's notice does so, but also proceeds on one month's leave at the same time. So practically he becomes unavailable to discharge the duties envisaged while making provision of one month's notice period. And then HR starts wondering whether the the actual period of absence (during notice period) can be counted as notice period as well as LEAVE. Once the requirement of notice period is defined in terms of physical presence on duty to discharge the work, the confusion on whether to allow leave during notice period or not, will stand answered. If leave is taken, the notice period would automatically stand extended.
I hope this answers your query.
By the way, when you say 'leave (unpaid)' what do you mean? Do you mean that it would be without pay? Or that the leave is in balance and it has not beeen paid for i.e. not en-cashed? Probably it is the latter.
Ravindra Pandit

From India, Mumbai
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