Hello Everyone,
I have a query regarding leaves. According to the BOMBAY SHOPS AND ESTABLISHMENTS ACT, 1948, privileged/earned leaves are 21, and these are compulsory. My question is: are sick and casual leaves not compulsory, or is it up to the company policy? Are they not mandatory leaves? If they are required to be given, then how many days should it be?
Additionally, for the probation period, employees may not be eligible to take leaves, or is it based on company policy? Are there any government rules and regulations regarding this?
From India, Pune
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I have a query regarding leaves. According to the BOMBAY SHOPS AND ESTABLISHMENTS ACT, 1948, privileged/earned leaves are 21, and these are compulsory. My question is: are sick and casual leaves not compulsory, or is it up to the company policy? Are they not mandatory leaves? If they are required to be given, then how many days should it be?
Additionally, for the probation period, employees may not be eligible to take leaves, or is it based on company policy? Are there any government rules and regulations regarding this?
From India, Pune
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Chapter: Leave with Pay and Payment of Wages
Section 35: Leave
(1) (a) Subject to the provisions of clause (b), every employee who has been employed for not less than three months in any year shall, for every 60 days on which they have worked during the year, be allowed leave, consecutive or otherwise, for a period of not more than five days.
(b) Every employee who has worked for not less than two hundred and forty days during a year [irrespective of the date of commencement of their service] shall be allowed leave, consecutive or otherwise, for a period of not less than twenty-one days. Provided that such leave may be accumulated up to a maximum period of forty-two days.
Explanation: The leave allowed to an employee under clauses (a) and (b) shall be inclusive of the day or days during the period of such leave, on which a shop or commercial establishment remains closed under subsection (1) of section 18, or on which they are entitled to a holiday under subsection (1) of section 24 or section 31.
(2) If an employee entitled to leave under subsection (1) [or (1-A)] is discharged by their employer before they have been allowed the leave, or if, having applied for and having been refused the leave, they quit their employment before they have been allowed the leave, the employer shall pay them the amount payable under section 36 in respect of the leave.
(3) If an employee entitled to leave under subsection (1) [or (1-A)] is refused the leave, they may give intimation to the Inspector or any other officer authorized in this behalf by the [State] Government regarding such refusal. The Inspector shall enter such intimation in a register kept in such form as may be prescribed. [The employee shall also send a copy of such intimation to their employer, and thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.]
(4) Notwithstanding anything contained in this section, every employee, irrespective of their period of employment, shall be entitled to an additional holiday on the 26th January, 1st May, 15th August, and 2nd October every year. For the holiday on these days, they shall be paid wages at a rate equivalent to the daily average of their wages (excluding overtime) which they earn during the month in which such compulsory holiday falls. Provided that the employer may require any employee to work in the establishment on all or any of these days, subject to the conditions that for such work, the employee shall be paid double the amount of the daily average wages and also leave on any other day in lieu of the compulsory holiday.
Section 36: Pay during leave
Every employee shall be paid for the period of their leave at a rate equivalent to the daily average of their wages for the days on which they actually worked during the preceding three months, exclusive of any earnings in respect of overtime.
Section 37: Payment when to be made
An employee who has been allowed leave under section 35 shall, before their leave begins, be paid half the total amount due to them for the period of such leave.
Section 38: Application and amendment of the Payment of Wages Act
(1) Notwithstanding anything contained in the Payment of Wages Act, 1936 (V of 1936) herein referred to as "the said Act," the [State] Government may, by notifications published in the Official Gazette, direct that subject to the provisions of subsections (2) of the said Act [shall, in such local areas as may be specified in the notification, apply] to all or any class of establishments or to all or any class of employees to which or whom this Act for the time being applies.
(2) On the application of the provisions of the said Act to any establishment or to any employees under subsection (1), the Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act within the local limits of their jurisdiction.
Section 38A: Application of Act VIII of 1923 to employees of establishment
The provisions of the Workmen's Compensation Act, 1923 (VIII of 1923) and the rules made from time to time thereunder shall, mutatis mutandis, apply to employees of an establishment to which this act applies, as if they were workmen within the meaning of the Workmen's Compensation Act, 1923.
Section 38B: Application of Industrial Employment (Standing Orders) Act to establishments
The provisions of the Industrial Employment (Standing Orders) Act, 1946, in its application to the State of Maharashtra (hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to [all establishments wherein fifty or more employees are employed] and to which this Act applies, as if they were industrial establishments within the meaning of the said Act.
Section 38C: Application of Maternity Benefit Act of women employees in establishment
Notwithstanding anything contained in the Maternity Benefit Act, 1961 (hereinafter in this section referred to as "the said Act"), the State Government may, by notification in the Official Gazette, direct that all or any of the provisions of the said Act or the rules made thereunder shall apply to women employed for wages in all or any of the establishments to which this Act applies. For that purpose, such women employees shall be deemed to be women within the meaning of the said Act. On such application of the provisions of the said Act, an Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act also within the limits of their jurisdiction.
From India, Chennai
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151Section 35: Leave
(1) (a) Subject to the provisions of clause (b), every employee who has been employed for not less than three months in any year shall, for every 60 days on which they have worked during the year, be allowed leave, consecutive or otherwise, for a period of not more than five days.
(b) Every employee who has worked for not less than two hundred and forty days during a year [irrespective of the date of commencement of their service] shall be allowed leave, consecutive or otherwise, for a period of not less than twenty-one days. Provided that such leave may be accumulated up to a maximum period of forty-two days.
Explanation: The leave allowed to an employee under clauses (a) and (b) shall be inclusive of the day or days during the period of such leave, on which a shop or commercial establishment remains closed under subsection (1) of section 18, or on which they are entitled to a holiday under subsection (1) of section 24 or section 31.
(2) If an employee entitled to leave under subsection (1) [or (1-A)] is discharged by their employer before they have been allowed the leave, or if, having applied for and having been refused the leave, they quit their employment before they have been allowed the leave, the employer shall pay them the amount payable under section 36 in respect of the leave.
(3) If an employee entitled to leave under subsection (1) [or (1-A)] is refused the leave, they may give intimation to the Inspector or any other officer authorized in this behalf by the [State] Government regarding such refusal. The Inspector shall enter such intimation in a register kept in such form as may be prescribed. [The employee shall also send a copy of such intimation to their employer, and thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.]
(4) Notwithstanding anything contained in this section, every employee, irrespective of their period of employment, shall be entitled to an additional holiday on the 26th January, 1st May, 15th August, and 2nd October every year. For the holiday on these days, they shall be paid wages at a rate equivalent to the daily average of their wages (excluding overtime) which they earn during the month in which such compulsory holiday falls. Provided that the employer may require any employee to work in the establishment on all or any of these days, subject to the conditions that for such work, the employee shall be paid double the amount of the daily average wages and also leave on any other day in lieu of the compulsory holiday.
Section 36: Pay during leave
Every employee shall be paid for the period of their leave at a rate equivalent to the daily average of their wages for the days on which they actually worked during the preceding three months, exclusive of any earnings in respect of overtime.
Section 37: Payment when to be made
An employee who has been allowed leave under section 35 shall, before their leave begins, be paid half the total amount due to them for the period of such leave.
Section 38: Application and amendment of the Payment of Wages Act
(1) Notwithstanding anything contained in the Payment of Wages Act, 1936 (V of 1936) herein referred to as "the said Act," the [State] Government may, by notifications published in the Official Gazette, direct that subject to the provisions of subsections (2) of the said Act [shall, in such local areas as may be specified in the notification, apply] to all or any class of establishments or to all or any class of employees to which or whom this Act for the time being applies.
(2) On the application of the provisions of the said Act to any establishment or to any employees under subsection (1), the Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act within the local limits of their jurisdiction.
Section 38A: Application of Act VIII of 1923 to employees of establishment
The provisions of the Workmen's Compensation Act, 1923 (VIII of 1923) and the rules made from time to time thereunder shall, mutatis mutandis, apply to employees of an establishment to which this act applies, as if they were workmen within the meaning of the Workmen's Compensation Act, 1923.
Section 38B: Application of Industrial Employment (Standing Orders) Act to establishments
The provisions of the Industrial Employment (Standing Orders) Act, 1946, in its application to the State of Maharashtra (hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to [all establishments wherein fifty or more employees are employed] and to which this Act applies, as if they were industrial establishments within the meaning of the said Act.
Section 38C: Application of Maternity Benefit Act of women employees in establishment
Notwithstanding anything contained in the Maternity Benefit Act, 1961 (hereinafter in this section referred to as "the said Act"), the State Government may, by notification in the Official Gazette, direct that all or any of the provisions of the said Act or the rules made thereunder shall apply to women employed for wages in all or any of the establishments to which this Act applies. For that purpose, such women employees shall be deemed to be women within the meaning of the said Act. On such application of the provisions of the said Act, an Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act also within the limits of their jurisdiction.
From India, Chennai
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THE BOMBAY SHOPS & ESTABLISHMENTS ACT, 1948 FAQ.doc