Umakanthan53
Labour Law & Hr Consultant
Rkn61
Hr Manager
KK!HR
Management Consultancy
Advmpkulkarni
Legal Executive

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Dear Sir, My company is situated at Mumbai. I require your opinion on the following issue.
As per Factories Act, the employee/worker is eligible for 15 days leave in a year (1 leave for 20 days work) and as per Maharashtra Shops and Establishments Act, 2017 an employee is eligible for 18 days leave in a year.
At present, our company is giving 28 Privilege Leaves and 7 Casual leaves in a year. If a company is giving more than statutory leaves to the employees and if the company wants to withdraw the existing facility and provide only statutory leaves to its employees then whether the company can do so? If yes then under what provisions?
Please refer if there is any Supreme Court or High Court Judgment.

From India, Mumbai
Dear Mayur,
Any employment benefit more than the statutory scale given to the employees over a substantial period of time becomes a customary benefit. Leave with wages and holidays are service conditions finding place at sl no.5 of the schedule IV of the IDA, 1947.
Therefore, the employer cannot change them to the disadvantage of the workman without complying with the provisions of section 9-A of the Act i.e., a 21 days notice shall be given as prescribed in the Act.

From India, Salem
Shri Umakanthan Sir,
Thanks you very much for your valuable advise.
Our office is governed by Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017. With reference to the said Act I require to know whether the employer can withdraw existing leave facilities and provide only statutory leaves to its employees?
Also request you to provide Supreme Court or High Court Judgment if any.
Regards,
Mayur P. Kulkarni

From India, Mumbai
As pointed out by Learned Umakanthan Sir, the ID Act provisions would be applicable even if you are covered under the Shop & Establishment Act. The famous Supreme Court judgement in Bangalore Water-Supply & ... vs R. Rajappa & Others decided on 21 February, 1978 (Citation: 1978 AIR 548) is the basic law on the subject. In case the procedure of notice of change is not gone into, it will be an illegal change and the consequences are unpleasant.
From India, Mumbai
No statutory law prevent an employer from giving benefits to his employees, more than what a statutory act prescribes. Whatever is given "more" shall be treated as a "gesture" from the company/management, which ultimately lead to employees participation and this shall ultimately give rich dividend to the company.
The sudden withdrawal of such benefits to employees, without sufficiently advance notice to employees, reflects irrational, illegal and arrogant attitude of employer which will be confronted by employees and can hamper industrial peace.

From India, Aizawl
Dear Mayur,
Really it is a piquant situation that a pertinent question would arise as to the applicability of which Shops and Establishments Act on the whole when an establishment ( probably having its registered/corporate office in Maharashtra ) coming under the Maharashtra Shops and Establishments (Regulation of Employment & Conditions of Service) Act, 2017 has its branches in other States which do have their own similar Laws. Certainly, the confusion relating to compliance would be more confounded when you adopt the policy of interstate transfer and seniority of employees as the provisions for leave etc., are at variance.Even otherwise, the saving clause provided u/s 35 of the MSE(RE&CS)Act,2017 protecting the more favourable rights and privileges under any other law, custom, usage etc., would be a contentious issue if the notice u/s9-A of the IDA,1947 is legally resisted by the employees.
Therefore, before effecting the changes of any service condition in tune with the Maharashtra Act, you have to make a comparative analysis of similar provisions under other State Laws.
Let's compare the leave provisions of the S&E Acts of Maharashtra, Karnataka, Kerala and Tamilnadu as follows:
(1) EL/PL/AWW: Maharashtra - 18 days; Karnataka- 18 days; Kerala-12 days; Tamilnadu-12 days
(2)Sick Leave: Maha- 12 days; Karnataka- 12 days; Kerala- 12 days; TN- 12 days
(3) Casual Leave: Maha- 8 days; Karnataka- Nil ; Kerala-12 days; TN- 12 days.
How your management tackle such a situation in case it has branches in all these States?
Better consider formulating a Common Leave Policy incorporating the maximum benefits in terms of scale and calculation.

From India, Salem
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