ANNUAL LEAVE WITH WAGES

ANNUAL LEAVE WITH WAGES :

This aspect has been dealt with under Chapter VIII of the Act.

Application of the Chapter

(1) According to Section 78(1), the provisions contained in this chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, agreement including settlement or contract of service.

(2) Where such award, agreement including settlement or contract of service provides for a longer annual leave with wages than provided in this Chapter, the worker shall be entitled to such longer annual leave but if those provisions are less favourable, then this Chapter shall apply [proviso to Section 78(1)].

(3) The provisions of this chapter do not apply to workers in any factory of any railway administration by the Government, who are governed by leave rules approved by the Central Government.

Annual leave with wages

Under Section 79, the following provisions have been made with regard to annual leave with wages.

Basis of leave

(a) According to Section 79(1), where a worker has worked for a minimum period of 240 days or more in a factory during any calendar year, i.e., the year beginning from 1st January, he is entitled to leave with wages on the following basis–

(i) for adults – One day for every 20 days of work performed by them during the previous calendar year.

(ii) for children – One day for every fifteen days of work performed by him during the previous calendar year.

(b) If a worker does not commence his services from 1st January, he is entitled to these leaves at the above mentioned rates provided he has worked for 2/3rd of the total number of days in the remaining part of the calendar year.

(d) In calculating leave, fraction of leave of half a day or more shall be treated as one full day’s leave and fraction of less than half a day shall be ignored.

(e) Computation of qualifying period of 240 days: For the purpose of calculating the minimum period, following periods are also included:

(i) any days of lay-off as agreed or as permissible under the Standing Orders.

(ii) for female workers, period of maternity leave not exceeding 12 weeks.

(iii) leave earned in the year prior to that in which the leave is enjoyed.

Though the above mentioned days included in calculated the qualifying period, but the worker will not be entitled to earn leave for these days.

A worker who is discharged or dismissed from service or quits his employment or is superannuated or dies while in service during the course of calendar year, he or his heir or nominee as the case may be, shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before his discharge, dismissal, quitting of employment, superannuation or death, calculated at the rates specified in sub-section (1), even if he had not worked for the entire period specified in sub-section (1) or (2) making him eligible to avail of such leave and such payment shall be made:

(i) where the worker is discharged or dismissed or quits employment, before the expiry of second working day from the date of such discharge, dismissal or quitting;

(ii) where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuation or death. [Explanation to Section 79(1)]

Accumulation or carry forward of leaves

If any worker does not avail any earned leave entitled to him during the calendar year, it can be carried forward to the next calendar year subject to the maximum of 30 days for an adult worker and 40 days for a child worker.

But if a worker applies for leave with wages and is not granted such leave in accordance with any approved scheme under Sections 79(8) and (9), or in contravention of Section 79(10), he can carry forward the leave refused, without any limit. [Section 79(5)]

How to apply for leave with wages

(i) If a worker wants to avail leave with wages earned by him during the year, he must apply in writing, to the manager of the factory at least 15 days before the date on which he wishes to go on leave. [Section 79(6)]

(ii) In case a worker is employed in a public utility service as defined in Section 2(n) of the Industrial Disputes Act, 1947, the application for leave with wages shall be made at least 30 days in advance.

(iii) The annual leave with wages cannot be availed for more than three times during any year.

(iv) The application to avail annual leave with wages for illness purposes can be made at any time. [Section 79(7)]

(v) An application for leave which does not contravene the provisions of Section 79(6) shall not be refused unless the refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9) of Section 79. [Section 79(10)]

Scheme of leave

To ensure continuity of work, the grant of leave can be regulated. For this purpose, the occupier or the manager should prepare a scheme in writing, regulating the grant of leave to the workers and lodge it with the Chief Inspector.

The Scheme should be prepared in agreement with the following bodies or persons:

(a) (i) Works Committee formed under Section 3 of the Industrial Disputes Act, 1947, or

(ii) Such other Committee formed under any other Act, or

(iii) In the absence of any of the above Committee, the representatives of the workers chosen in the prescribed manner [Section 79(8)].

(b) The scheme shall be valid for 12 months from the date on which it comes into force. It can be renewed, with or without modification, for a further period of 12 months [Section 79(9)]. A notice of renewal shall be sent to the Chief Inspector.

Wages during leave period

According to Section 80(1), for the leave allowed to a worker under Section 78 or 79, he shall be entitled to wages at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the month immediately preceding his leave. Such full time earning will also include the dearness allowance and cash equivalent of the advantage accruing through the concessional sale to the workers of foodgrains and other articles. But will exclude any overtime wages and bonus.

Provided that in the case of a worker who has not worked on any day during the calendar month immediately preceding his leave, he shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the last calendar month preceding his leave, in which he actually worked, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the workers of foodgrains and other articles.

The cash equivalent of the advantage accruing through the concessional sale to the workers of foodgrains and other articles shall be computed as often as may be prescribed, on the basis of the maximum quantity of foodgrains and other articles admissible to a standard family. [Section 80(2)]

“Standard family” means a family consisting of a worker, his/her spouse and two children below the age of 14 years requiring in all three adult consumption units. [Expl. I to Section 80(2)]

“Adult consumption unit” means the consumption unit of a male above the age of 14 years, and the consumption unit of a female above the age of 14 years, and that of a child below the age of 14 years, shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit. [Expl. II to Section 80(2)]

Payment in advance in certain cases

Section 81 provides that where an adult worker has been allowed leave for not less than 4 days and a child worker for not less than 5 days, wages due for the leave period should be paid in advance, i.e., before his leave begins.

Mode of recovery of unpaid wages

Any unpaid wages due to the workers under this Chapter, can be recovered as delayed wages under the provisions of the Payment of Wages Act, 1936. (Section 82)

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