Are Non-Confirmed Employees in India Eligible for Casual and Sick Leave? Seeking Guidance

Hello Everyone,

Please guide me regarding leave. Actually, I just wanted to know if non-confirmed employees of the company are eligible for leaves (casual, sick, or earned). If yes, is there any related Act or section on leave for private limited companies in India? Please share ASAP.

Required more details about the query. Where is your company located and what type of company is yours to provide appropriate details? Is it a factory or a shop and establishment?

Check your state's shops and establishment act, Section 25, to know about the leave details.

TN Shops and Establishment Act

Holidays and sick leave:

(1) Every person employed in any establishment shall be entitled, after twelve months of continuous service, to holidays with wages for a period of 12 days, in the subsequent period of twelve months: provided that such holidays with wages may be accumulated up to a maximum of twenty-four days.

(2) Every person employed in any establishment shall also be entitled during their first twelve months of continuous service after the commencement of this Act, and during every subsequent twelve months of such service:

(a) to leave with wages for a period not exceeding twelve days, on the ground of any sickness incurred or accident sustained by them, and

(b) to casual leave with wages for a period not exceeding twelve days on any reasonable ground.

I am a contractual employee in the ministry under the contractor. There are no casual leave or medical leave provided by the contractor for the past 5 years. No leave has been granted during this time.

Hi Divakar,

My company is located in Gurgaon, which is an MNC (Japanese Company). If there is any particular section or Act number, please share it.

Thank you.

You have not said whether your company is a manufacturing unit or an IT/ITES type. There is no sick leave or casual leave prescribed in the Factories Act. As per Section 79 of the Factories Act, an employee will earn one day of leave for every 20 days of work performed. An employee will be eligible for those leaves after completion of 240 days or more in a calendar year.

Section 14 of the Punjab Shops and Establishment Act

14. LEAVE.-
(1) (a) Every employee who has been in employment for not less than twenty days in a year shall be entitled to one day's earned leave for every such twenty days.
(4) Notwithstanding anything contained in the foregoing sub-sections, every employee in an establishment shall be allowed seven days of casual leave and seven days of sick leave in a year.

Thank you for providing the company details. Currently, the company operates as a Trading Company, focusing solely on the sale of products. I would like to inquire whether employees who have not yet been confirmed by the company are eligible for any type of leave.

Your company will fall under the Shops and Establishments Act. Please purchase a book on the above act and keep it with you or in your company.

Even if an employee is not confirmed, you are supposed to provide 7 days of casual leave and 7 days of sick leave with wages in a year. You can calculate it on a pro-rata basis and provide it from the date of joining, as 14 days are for the whole year. They may not be eligible for earned leaves unless they complete a year.

As per the law, the leave entitlement has no relation to confirmation. It is governed by the respective laws on leaves.

Dear Mr. Varghese,

Can you please elaborate on how leave entitlement has no relation to confirmation? Can you also share the relevant Act or section pertaining to this law?

Thank you.

Probation and Confirmation Laws

There is no law at the national level on how and when an employee should be confirmed, except for the word 'probationer' in the Standing Orders Act. This will not be applicable to non-workmen and to all employees of establishments where the SO Act is not applicable. In such cases, the HR policies or terms of the appointment order will govern the issue of probation or confirmation.

Leave Provisions for Factory Employees

Leaves for employees in factories are governed by Section 79 of the Factories Act. As per this, any worker who has worked for a period of 240 days in the previous year shall be given leave in the next year at one for every twenty working days, irrespective of whether the worker is confirmed or not.

Leave Provisions Under the Mines Act

Section 52 of the Mines Act has a provision for leave wherein there is no requirement of confirmation.

Leave Provisions in Other Sectors

Leaves in other sectors are governed by the respective state's Shops and Commercial Establishments Acts. You may check with your state's Act. I do not think that confirmation is a condition for leave in any of the state Acts.

Maternity Leave and Benefits

Maternity leave/benefits are governed by Rule 56 of the ESI rules or Section 5 of the Maternity Benefit Act, as the case may be. These provisions also do not mention confirmation other than contributory or service conditions.

Dear Sanchi Sudha, There is a State Labour Legislation in Tamil Nadu styled as "The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Employees) Act, 1981" which mandates that every employee who has completed 480 days of continuous employment in an industrial establishment in a period of 24 calendar months shall be made permanent. Even that Act does not define what permanent status is; it just stipulates the condition for it and explains the conditional requirement in terms of the number of days the employee worked within the prescribed time frame, that's all. Only in Government Service relating to the discharge of its inalienable sovereign functions, posts are classified as temporary and permanent, and the question of confirmation arises when a Government servant gets a lien to a permanent post only.

In the matter of employment in industrial enterprises, there is no necessity for such a classification of posts rather than employees because the scale of operations precisely determines the requirement of the number of people. The scale of operation is actually predetermined by the top Management/Employer of the industrial enterprise.

After all, employment is a contract of service between two unequal parties, viz., the employer and the employee. As such, the mighty employer can exploit the poor employee by keeping him temporarily on a permanent nature of work for years together. That's why the law does not make any distinction between a permanent employee and a temporary employee in respect of service conditions such as leave, wages, terminal benefits, etc. It is actually the length of service and not the nature of appointment that entitles an employee to leave benefits available under any Labour Law applicable to his establishment.

Hi there!

There are mandatory leaves, while others are part of the contract between the employer and the employee. Mandatory leaves include the weekly off and Annual Leave with wages for factories. For shops and establishments, the mandatory leaves are Annual leave, Casual Leave (CL), and Sick Leave (SL).

In the case of factories, other types of leaves are either specified in the Standing Orders, leave policy, appointment letter, or settlement between management and unions. Thus, apart from the annual leave with wages (18/year), there are no guidelines for other types of leaves in the case of factories.

Clarification on Leave Entitlement Under the Punjab Industrial Establishment Act

The querist is from Gurgaon, and their query is on Casual Leave (CL) and Sick Leave (SL). The querist is subject to the Punjab Industrial Establishment (National and Festival Holidays and Casual and Sick Leave) Act, 1965. According to this Act, every worker is entitled to CL & SL as prescribed therein. Here, the term 'every worker' is to be taken into consideration while replying to the said query. There is no terminology in the Act such as confirmed worker, non-confirmed worker, probation worker, temporary worker, or casual worker, etc.

Hope I have clarified the position.

Regards

Thank you for providing your valuable time to answer my query. I have also gone through the act, and your point is absolutely correct and fine. Actually, I joined a Japanese company (Establishment) in Gurgaon on 1st June 2015. To date, I am not confirmed in the organization. Now, while processing last month's salary (September), they told me that I am not eligible for any kind of leave. The leave I have taken in the last few months will be deducted from my salary, and there is no such policy or anywhere written in company documents about the deduction of leave.

Regards

Dear Sanchi,

Any search outside your own organization may not help you, as every MNC has its well-framed set of rules for employees, mostly known as an employee manual or even a separate set of leave rules. So, it would be better to go through that manual first and come forward with any doubts you may have for clarification. Otherwise, receiving different versions of replies based on different sets of rules can only create confusion for you.