Annual Leave with Wage: Section 79 of the Factories Act
Factories Act states about the annual leave with wages.
Section 79. Annual leave with wages
(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of:
(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;
(ii) If a child, one day for every fifteen days of work performed by him during the previous calendar year.
Explanation 1: For the purposes of this subsection:
a. any days of lay-off; by agreement or contract or as permissible under the standing orders;
b. in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
c. the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.
Explanation 2: The leave admissible under this subsection shall be exclusive of all holidays whether occurring during or at either end of the period of leave.
(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calendar year.
(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, during the course of the 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 the discharge, dismissal, quitting of employment, superannuating 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 sub-section(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 the second working day from the date of such discharge, dismissal or quitting; and
(ii) where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuating or death.]
(4) In calculating leave under this section, a fraction of leave of half a day or more shall be treated as one full day’s leave and the fraction of less than a half a day shall be omitted.
(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be, and leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :
Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child:
Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in subsections (8) and (9) or in contravention of sub-section (10)] shall be entitled to carry forward the leave refused without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year:
Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (XIV of 1947):
Provided further that the number of times in which leave may be taken during any year shall not exceed three.
(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section (6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputed Act, 1947 (XIV of 1947), or a similar Committee under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with Chief Inspector a scheme in writing whereby the grant of the leave allowable under this section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be, in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.
(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.
(12) The availed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.
South India Corporation And Ors. vs. All Kerala Cashewnut Factory
[Kerala High Court;09 September 1959]
[AIR 1960 Ker 208, (1960) IILLJ 103 Ker]
Justice T Joseph
“Section 79 of the Factories Act is not similar to Section 25 A of the Industrial Disputes Act. All that Section 79 provides is that a worker who has worked for a period of 240 days or more during a calendar year shall be allowed, during the subsequent calendar year, leave with wages at the rate of one day for 20 days in the case of an adult and one day for 15 days in the case of a child. Every employer is thus bound to grant such leave with wages but there is no provision either in Section 79 or any other section of the Factories Act which operates as a bar to the grant of leave with wages for workers in seasonal industries which from their nature cannot be carried on for 240 days in a year. It cannot, therefore, be held that the Tribunal had no jurisdiction to grant leave with wages irrespective of the total number of working days in a calendar year.”