Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Leave during notice period in software industry

Page no : 2

Kumar Doab (FIN)     28 February 2017

If employee is expected to apply for leave in advance (as per Leave Rules drafted by employer) then employer is also under obligation to supply the acceptance or declinature sufficiently in advance.

Te leave policy drafted by employer can offer superior benefits as provided in applicable enactments but NOT INFERIOR.

 

In your case the declinature was issued by HR person and that too was while you had left office to proceed on  leave………………………that was duly sanctioned by your sanctioning authority; Manager.

 

Here once again you may check if Leave Rules/Policy narrate that Manger is sanctioning Authority…………………………and also does it mention leave sanctioned by Manger can be cancelled by HR person.

And also: The leave application (for CL)   should be submitted by how many days in advance?

And acceptance or declinature should be supplied to employee that has to proceed on leave; many days in advance?

 

Relate your case with it.

Kumar Doab (FIN)     28 February 2017

Bombay Shops & Estbs Act; Sec: 2(13,)35,36,38, 38-B,66,

https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94257/110577/F479460477/IND94257.pdf

 

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: Provided that such leave may be accumulated up to a maximum period of fortytwo days”

( So if your Manager has allowed the leave it is in accordance with the Act) 

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. 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 his employer and, thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.

 

Every employee shall be paid for the period of his leave at a rate equivalent to the daily average of his wages for the days on which he actually worked during the preceding three months, exclusive of any earnings in respect of overtime.

 

An employee who has been allowed leave under section 35 shall, before his leave begins, be paid half the total amount due to him for the period of such leave

 

This Act does not lay down any Notice Period for employee.

Rather it lays down notice period for employer.

 

The NOTICE PERIOD in your case should be max.=30days  ( that too if equitable discretion is applied, with your concurrence ort deemed concurrence)

 

ID Act does not lay down any Notice Period for employee.

 

You may confirm if standing orders of your establishment are certified and these cover your designation.

And look into list of misconducts.

If not go thru:

Model Standing Orders:Sec; 9,10, 14, 15,16,17,18

 https://mahakamgar.maharashtra.gov.in/images/pdf/industrial-employment-standing-orders-rules-1946.pdf

A workman who desires to obtain leave of absence shall apply to the 6[employer or any other officer of the industrial establishment specified in this behalf by the employer], who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date, of the application or within three days thereof, the order shall be given on the same day

 

Casual leave:-A workman may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in a calendar year. Such leave shall not be for more than three days at a time except in case of sickness. Such leave is intended to meet special circumstances which cannot be foreseen. Ordinarily, the previous permission of the head of the department in the establishment shall be obtained before such leave is taken, but when this is not possible, the head of the department shall, as soon as may be practicable, be informed in writing of the absence from and of the probable duration of such absence.

 

Kumar Doab (FIN)     28 February 2017

"can not take leave during notice period…………………. HR told me this verbally over phone. But it is not mentioned anywhere in Leave Policy or Rules and Regulations
"

Gossip, rumor, hearsay is neither rule nor policy nor enactment nor law.

 

Record his/her statement and let him/her  establish and relate with published policy and board resoloution granting him such power.

 

 

 

Kumar Doab (FIN)     01 March 2017

Remain amiable and gentle.

Transact under proper acknowledgment.

Build irrefutable evidence.

Such and all maters can be resolved by employee with skills of persuasion, persistence, reasoning, negotiations.

Like any other skill such skills can be acquired.

Employee should have such skills.

Handling the bosses is also skill.

A properly informed employee and community of employee’s that united (unions), properly informed can defend their interest much better.

 

Employee(s) that are poorly informed and are not united are like; sitting duck: and prone to exploitation.

Kumar Doab (FIN)     01 March 2017

The employee’s/trade unions have traditionally been strong in Maharashtra.

 

State of Maharashtra has enacted: MRTU/PULP.

THE MAHARASHTRA RECOGNITION OF TRADE UNIONS AND PREVENTION OF UNFAIR LABOUR PRACTICES ACT

https://bombayhighcourt.nic.in/libweb/acts/1972.01.pdf

 

It is surprising that employees in IT/ITeS sector in Maharashtra are not very well knit and united.

While in states like Karnataka, Tamilnadu, AP etc they have formed Unions are embraced by Trade Unions and have done a good job.

 

Probably you are not aware that: State of Kerala has included IT employees in Min. Wages. I have posted and attached notification in old threads, years back.

 

You can Search thru Search option.

In State of Kerala: ‘Kerala Government has brought all Commercial Establishments into the purview of Standing Orders’.  

 

Standing Orders (Certified/Model) provide for good working conditions: many benefits/protection to employees, e.g; 'Service Certificate' to each employee.

 

Standing Orders also provide for; Faithful Observance of standing orders by employer or employer itself can be penalized.  

 

You may go thru:

 

https://www.lawyersclubindia.com/experts/Kerala-shops-and-estabilishments-act-566406.asp

 

and other threads mentioned in it and download.

 

Not only Kerala: Delhi has also placed notification on ‘Service Certificate’ on its website.

Karnataka: Has notified; ‘Grievance Redressal Committee’.

 

ID Act provides for; ‘Works Committee’ and accords it status of Authority.

 

If the need be ever:  IT-ITeS Employee’s Unions/Trade Unions, your own able counsel specializing in Labor/service matters, can take care of everything that you aim and need.

AS   20 March 2017

Hello Kumar Doab and Ritesh Maity,

I had a discussion with HR on the Leave during notice period and Deduction. The HR is not willing to accept the leaves and deducted the amount from salary.

However, while going through the Payslip and leaves I applied and the Payroll period I found below things: 

  1. Our Payroll cycle is from date 26 to date 25 every month. We get salary on or before 10 of each month.
  2. I applied leaves on 31 Jan for 6 days i.e. from 20 Feb to 24 Feb and on 27 Feb. 
  3. Leaves has been rejected on 27 Feb at 5 PM.

As per above points HR simply cannot deduct anything and leave should be considered as "APPROVED".

So based on this I want to convey to my HR that "(1) if payroll cycle is 26 to 25 then how come the deduction is done for the date 20 to 24 because leaves has been rejected on 27 Feb which is after payroll period. (2) The leaves have been rejected on the end date and not before I am going on leave. (3) I applied for leave before 20 days and HR should have rejected it on that day as when we apply for the leave HR gets email about it. (4) Simply you have to make the payment for leaves."

Just wanted to know that whether I am right or wrong.

Thanks. :)

Kumar Doab (FIN)     20 March 2017

It has already been posted for you that:

---"Gossip, rumor, hearsay are neither rules, nor policies nor law, nor Act not statue............ “

Republic of India is not some tribal lands or badlands of Pakistaan............................. Republic of India: Constituion is Supreme. Constitution has provided rights to citizens and employees are also citizens.

 

---“ First thing First: Obtain in writing from your manager that your applied for leave in principle (verbally) on dated;………and submitted leave application on dated………….and it was approved by him/her on dated……………and forwarded for filing on dated………………

 Hope you will get it.”

 

Hope you have got it.

Kumar Doab (FIN)     20 March 2017

Obtain:

--- pay slip for each month, including last month

---acknowledgment of leave application, approval/recommendation (forwarding/sanctin; whatever it is)   of leave by Manager, declinature by HR………………..

--- Correct FnF statement showing computation of earned wages/accumulation of leave/leave encashment/bonus/reimbursements/incentives etc  and deductions if any with clear descripttion for reason of deduction, and final amount payable.

---Form 16 as per Correct FnF statement

---Service Certificate,

---Relieving Letter

---Acknowledgment of assets/handover of charge

---NOC/NDC

---acknowledgment of Copy of exit forms if any.

Etc etc

 

Kumar Doab (FIN)     20 March 2017

The employer may make an error on leave accumulation.

There are court rulings on accumulation of leave from DOJ till LWD and then calculate the leave accumulated and to be encahsed.

 

It has already been posted that: The employer can not offer benefits including but not limited to leave: inferior to enactments that apply to establishment/employee …but can offer superior benefits. If leave policy of the establishment offer superior benefits then relate with it…………………………..and/or if it offer inferior benefits relate with the Act.

The rate of leave encashment can also not be less than as in the Act. ( e.g; CTC, GROSS, Basic)

The link to Act and its relevant clauses have already been supplied to you.

  

Kumar Doab (FIN)     20 March 2017

You may on your own or with help of elders of the family, competent and experienced well wishers, Employee’s union/trade union leaders, counsels specializing in Labor/service matters…………………………check each item in FnF statement and point out errors if any, ………………….and may decline to accept it, if it has errors.

I am sending links to you that you may carefully understand and if required take help of counsels as mentioned above.

 

Kumar Doab (FIN)     20 March 2017

Your understanding is correct.

 The leave must not be recorded as “Unapproved”.

Kumar Doab (FIN)     20 March 2017

Dear LCI Querist @ AS,

 

I have sent you some links.

You may go thru these.

 

 

 

AS   22 March 2017

Hi,

Really very greatful for all you help and guidence. I need guidence once again on this topic.

I am sorry for inconvenience and continuous questions on this topic, but I am not aware of the law so posting which may be irritating for you.

I don’t like to make anyone suffer from my action. But at the same time I am completely against injustice and I support the people rights including mine.

Today I had a discussion again on Leave during notice period and the deduction which is made and I explained all the laws to HR. HR reply was really amazing. I recorded whole discussion on phone. 

Previously I told HR that it is not mentioned in policy document so now they mentioned it in policy document yesterday and then had a meeting with me today. But I have copy of old Policy which I also shared via email to HR as last discussions MOM.

I am sharing some of the statements from today discussion and I think I need to file a complaint:

  1. HR said, this is company policy and law cannot be applied here as it is private company and not government or public sector. We will define how we will function and what will policy. If you want to go with law way go ahead.
  2. We will not pay you the amount for the leave as you are allowed only 1 leave in each month and now this is mentioned in document.
  3. For Salary and Gratuity, it will be paid with FnF and I don't know any law on payment of these components. So it will go as process which will take 4 to 6 months 
    • I told them about Payment of Wages Act and Payment of Gratuity Act but they are not accepting anything like this.
  4. On leave he said as Leave was not rejected before you going then its neither approved so how I am claiming the salary for this?
  5. He also said that he will check all the leaves I took in my entire career with them and if we found any leave which is approved after leave day they will consider it as LOP and deduction will be seen in FnF calculations.
    • I told them about the law that I applied it 20 days before and if you not approved it before I am going then it will be treated as approved because I already left.
  6. They have provided me Reliving date in written as 7 April which is 15 days before of actual 3 months’ notice period completion. As I was insisting them to give me the deduction amount they became furious and said that we are not reliving you on 7 April server the complete period.
  7. They will allocate a new project and I need to work on that and I will not get any amount against deduction.
  8. They will not pay me gratuity as per law which I described i.e. within 30 days and salary on 7th or 10th.
  9. Salary, Gratuity, Bonus and arrears will come as FnF which will be paid after 6 Months and we will not provide anything in written.

As they have provided me reliving date in written, I escalated this to other company and they confirmed my joining on 11 April. Now if they extend it how should I process on it?

I am ready to complaint against HR and company for unfair policy and practices and threatening statement.

Please let me know what should I do and how should I process it? Will it affect my job with other employer? Is it a good idea to let them know about the current situations?

Thank You !!

Ritesh Maity (Labour Law Advocate)     22 March 2017

The law of the land is above you, me, your HR and the so called company policy. 

I do not think this verbal discussion with HR will take you anywhere apart from wasting time.

There is no need to take action against HR as he is mere an employee. If you wish to proceed further, take action against the company and communicate in writing under proper acknowledgment. Otherwise, all your effort will be in vain. 

AS   24 March 2017

Thank You very much :)


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