Earned leave under bombay shops & establishment act
Ankit Jain
(Querist) 26 April 2014
This query is : Resolved
Dear Gentlemen,
My name is Ankit jain and I am working in a company in Ahmadabad which is registered under Gujarat S&E Act (as reference for Bombay shops & establishment act ). The company does have policies and procedure w.r.t functions (HR) and my job here is to make, review and execute HR Policies after getting the approval from the board of directors. The issue which I am facing is, as per B S&E Act , an employee working for min. 240 days is liable to get 21 Earned Leaves, as directed in the law.
Summary of leaves :
EL:21
SL:7
CL:7
National Holiday: min 4
I have advised the same in the policies, but concern persons are not ready to count these 240 days in probation period of employee (3 or 6 months) after employee get conform in the company and not giving earned leave to employee after successful completion of probation period. As per them, employee will be entitled for EL after probation period only or employee EL leave Cycle will be counted after probation period completed on pro rata basis that means he is only getting entitlement of SL in probation period.
My only concern is that:
1. Whether the number of days worked done under an employer within probation period should also be considered in those 240 days after which an employee is entitled to get Earned Leaves or not.
2. What are the consequences will be faced by the company if they are not considering probation days for entitlement of EL once the candidate will be confirmed in the company.
Please guide me over the subject. The company is also not ready to provide compulsory leaves on national Holidays and the days of Polling in Ahmadabad (30 April 2014, despite strict notification of Election Commission). please explain me the consequences of these due negligence of these acts as well as penalties advised by the Law.
Kumar Doab
(Expert) 26 April 2014
Dear Ankit,
Your intentions are genuine.
Your stand is appreciable.
HR personnel as an employee should not err for his self centered and selfish interest too since other personnel in an establishment shall try to transfer the onus on HR and pass the buck.
>>> If its is a commercial establishment provisions of leave policy can not be inferior to the (name of the state) Shops and Commercial Establishments Act. It can be superior.
Bombay Shops and Commercial Establishments Act does not mandate 240 days service for being eligible to leave provided for in this Act and does not recognize service as probation period/confirmation…………………..
It provides for date of commencement of service. Probation period is counted in service.
CHAPTER VII
Leave with Pay and Payment of Wages
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 he has 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 his service,]
shall be allowed leave, consecutive or otherwise, for a period of not less than twenty-one days:
(3) If an employee entitled to leave under sub-section (1) [or (1-A) is refused the leave, he may give intimation to the Inspector or any other officer authorised in this behalf by the [State] Government regarding such refusal.
(4) Notwithstanding anything contained in this section, every employee, irrespective of his period of employment, shall be entitled to additional holiday on the 26th January, 1st May, 15th August and 2nd October every year. For holiday on these days, he shall be paid wages at a rate equivalent to the daily
average of his wages (excluding overtime), which he earns during the month in
which such compulsory holidays 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.
You may also go thru Sec;38-B and if it applies in Gujarat then you may go thru Standing Orders as well.
>>> Gujarat seems to have framed GUJARAT SHOPS AND ESTABLISHMENT ACT, 1948 and you may obtain the latest version from Dept. of labor/Inpsectorate.
Section 35 - Leave
________________________________________
1[(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 he has worked during the year be allowed leave, consecutive or otherwise, for a period of not less than five days;
(b) every employee who has worked for not less than two hundred and forty days, during a year shall be allowed leave, consecutive or otherwise, for a period of not less than twenty--one days
>>> For paid leave on Election Day you may go thru another thread at;
http://www.lawyersclubindia.com/experts/Working-on-day-of-election-461816.asp#.U0PTv0eBmXU
There are many other threads e.g;
http://www.lawyersclubindia.com/forum/Election-duty-for-private-college-staff-100136.asp#.U0PS9UeBmXU
http://www.lawyersclubindia.com/forum/Election-leave-100506.asp#.U1vcQ0eBmXU
>>> It is published news that in Southern India Electoral Officers have forced closure of establishments during electoral hours as published by state……………….. including IT/ITeS companies that otherwise claim to be 24 hr continuous process companies.
Rajendra K Goyal
(Expert) 27 April 2014
Well explained by the expert Kumar Doab sir, agree to it.
The leave must be provided as per provisions of law.
T. Kalaiselvan, Advocate 
(Expert) 30 April 2014
I too agree with the views expressed by expert Mr. Kumar Doab on this respect.
Ankit Jain
(Querist) 01 May 2014
Thank you Mr. Kumar Doab for such well explanation.
