Leave Without Pay Dilemma: Should a Gazetted Holiday Count Between Absences?

This is a query regarding the leave without pay policy. We have a case where one of the employees was absent on 14th and 16th August. 15th August was a Gazetted holiday. Since he did not have any leave balance, his leaves will be without pay. Please advise whether the leave without pay should be for three days or two days.

Regards,
Kavita Rao

No doubt, leaves without pay will include holidays or weekly off days that may intervene. Therefore, you can deduct three days' pay.

Madhu.T.K

Well, whatever the reason, being a national holiday on 15th August, you cannot count it as a leave taken. You can deduct the payment for the rest of the two days.

Yes, due to the national holiday on the 15th of August, you can't count it as leave taken. Therefore, you can deduct the payment for the remaining two days.

Regards,
Rajesh

Payment for National Holidays During Unpaid Leave

Will you pay for the four national holidays if a person has been on leave without pay for the entire year? No. The same ruling applies here also. There is nothing wrong in refusing to pay salary for a holiday if the suffix and prefix of the said holiday are unpaid leaves.

Madhu.T.K

Either it is a national holiday, a public holiday, or a weekly off. If you are absent for 2 days, i.e., after and before the mentioned holidays, we should count it as 3 days.

Regards,
Binod

Hello Kavita, The established practice in a PSU under Central Govt. is that if an employee is a permanent employee, i.e., he is not a probationer/casual/badli/apprentice employee, he is entitled to full wages for national holiday(s) falling in the month if the employee has put in even one day of attendance in that month. However, no wage is paid for national holiday(s) if he is absent for the entire month. I am not sure if there is any such rule in black and white, but it is followed.

Best of luck,

Regards, AK Jain HR Personnel NCL, CIL

Yes, leave would be inclusive of 15th August, and you will have to consider granting him 3 days of leave without pay.

Understanding the "Sandwich Leaves Rule"

In fact, this rule is called the "Sandwich Leaves Rule." If an employee takes leave one day before Sunday, known as an "Off Day," and one day after Sunday, then this will be called the "Sandwich Leaves Rule." HR/Payroll/Employers can deduct three (03) days collectively as Unpaid Leave.

Exceptions for Gazetted Holidays

However, in the case of Gazetted Holidays like 15th August, one cannot apply the "Sandwich Rule." Therefore, only two (02) days will be deducted as Unpaid if there is no leave balance in the employee's account or if they are in the Probation Period.

Generally, organizations have policies where the day before or after a holiday is considered as Leave Without Pay. Therefore, you may have 3 days of pay deducted. Please check your organization's policy.

It should be a 2-day deductible and one holiday, as the holiday is a gazetted public holiday. The same rule applies if the person is on MC the day before and after the holiday.

Cheers,
Sonny

As you mentioned, he was absent during the period from 14th August to 16th August, and you had no information. The leave without pay (LWP) will be inclusive of holidays or weekly off days that may intervene. Therefore, you can deduct three days' wages.

Regards,
Mohan.

In my view, if an employee is absent from 14/08/2013 to 16/08/2013 with no leave balance, then in this case, the benefit of the national holiday, i.e., 15/08/2013, will be granted to him. Therefore, during the aforementioned period, the Leave Without Pay (LLWP) days will be 2 instead of 3.

Thanks & Regards,

Sumit Kumar Saxena

I would like to know if a festival holiday and an off day (Sunday) fall within the leave period, should we treat them as leave days only? Please comment.

Regards,
Sreedevi

It depends on the organization's policy. Some organizations do not include weekends (week offs) when calculating leaves. However, in cases where an employee is on Leave Without Pay (LWP), they are not entitled to be paid for those weekends.

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Leave Period Exclusion for Holidays

If festival holidays and weekends fall within the leave period, then the leave period should exclude these holidays and weekends. This is because leave should always be granted in lieu of working days instead of holidays and weekends.

Regards,
Sumit

Due to the national holiday on the 15th of August, you can't count it as leave taken. On a national holiday, if an employee is working, then as per labor laws, we should pay them double salary or provide Comp Off. Therefore, you can deduct the payment for the remaining two days.

Regards,
Rajeev Ranjan Shrivastava
H.R. Executive
DS Hotels & Resorts (India) Ltd.

Let me add one more thing: a sandwich holiday is given as a holiday and not as leave only if the suffix and prefix of the holiday are PAID LEAVES. In the case of LOP, this rule will not apply.

Madhu.T.K

Entitlement to Holiday Pay Despite Leave Without Pay

If the law on national and festival holidays of the state provides that if an employee works for a certain number of days during a specified period before the holiday (as in Kerala), then he shall be paid salary for the holiday. He is entitled to the salary irrespective of the fact that he was on Leave Without Pay (LOP) on the day before and after the holiday, if he satisfies the condition.

Regards,
Varghese Mathew

I quote the Tamil Nadu National and Festival Holidays Act of 1958. I presume most of the states have similar provisions:

"Provided that no such employee shall be entitled to be paid any wages for any of the holidays allowed under Section 3 other than the 26th January, the 1st May, the 15th August, and the 2nd October unless he has been in the service under the employer for a total period of 30 days within a continuous period of ninety days immediately preceding such holiday."

The Act does not specify any condition for all four national holidays. If a person joins on 14th August, he is eligible for a paid holiday on 15th August.

Judgments on Holiday Wages

I reproduce certain portions of two judgments:

1. Madura Coats Limited vs. Inspector of Factories 1981 (I) LLJ 255:

"It is true that where a strike is neither illegal, being not in contravention of any statutory provision, nor unjustified having been lodged as a protest against the unreasonable attitude of the management, there is no reason to deprive the workmen of their wages."

2. Dasappa vs. Labour Court and another 1970(I) LLJ 485:

"The proviso is applicable only to subsection (3). The word 'such' used therein makes the operation restricted. If it was the intention of the legislature that the proviso should cover the entire section, the word 'such' would not have been used there; the proviso would have stated a categorical proposition by laying down 'provided that no employee shall be entitled to be paid.' The word 'such' necessarily has reference to the two categories of employees referred to in subsection (3).

The requirement of an employer satisfying the need of service for thirty days within a continuous period of ninety days immediately preceding the holiday would apply to such workers if they were to claim their rights to wages for the holiday. There is no doubt that the explanation is only to the proviso."

Eligibility for Holiday Wages

Hence, only the following two categories need to fulfill the condition specified in the proviso:

This subsection provides for the payment of wages for two categories of employees -

1. An employee who is paid wages by the day, i.e., paid his wages at the end of each day as soon as he completes his work for the day.

2. An employee who is paid at piece rates.

All other employees are eligible for wages for national and festival holidays immediately on joining.

Question on Sandwich Leave

Having said this, the question here now is whether he or she needs to be paid for a holiday if it is sandwiched between two loss of pay days.

The answer to this lies in the answer to the following question:

If an employee is on loss of pay leave for 14th August and 16th August and if he is called to work on 15th August and if he works on 15th August, what is the rate of wages he will be paid?

The answer is he will be paid twice his normal wages.

If he has to be paid twice his normal rates of wages if he is called to work on a holiday, with the same stretch of argument, it can be deduced that an employee is eligible for wages for a national or a festival holiday even if he is sandwiching the same with two loss of pay leave.

In the Act, there is no provision for the 15th of August if a person is absent on the 14th and 16th. It will be the policy of management whether to give pay or not. Legally, he will be eligible for pay for the 15th of August. If it goes to the court of law, withholding pay will not be valid.

Regards,
D. Gurumurthy
HR & IR Consultant
Hyderabad.

Hi everybody, as per the new policy of the government, consider taking leave for working days only, excluding any holidays.