Sandwich, as the name suggests, means to put something in between two things of similar nature. In labour law parlance, sandwich leave refers to a day or two considered as off between two leaves voluntarily taken by an employee. E.g., leave applied by an employee for Friday and subsequent Monday, but the company counts both Saturday and Sunday as leave while debiting the employee’s leave balance.
Many have questioned this practice of sandwich leave including some companies on humanitarian and employee rights grounds. But is the sandwich leave policy legally tenable?
Current position of law on Sandwich Leave policy
The Karnataka Shops and Commercial Establishments Act, 1961 (the Act) states that every establishment shall remain closed for 1 day in a week. As per Section 12(3) of the Act, every employee in an establishment shall be given at least one day in a week as a holiday for rest, provided that in an establishment in which rest for one-and-a-half days in a week is allowed, such period of rest shall be continued.
The weekly holiday(s) are paid holidays, and an employee is entitled to the same for the work done in the establishment. There are no eligibility criteria for an employee to be entitled to weekly holiday(s) and the employer is not allowed to engage any employee with any work in connection with the business of his establishment on a weekly holiday given to an employee or on any day on which such establishment is closed as per Section 12(4) of the Act. In the case of Raghubar Dayal v. Rex[1], the High Court of Allahabad held that an employee would be entitled to weekly holidays irrespective of the work hours invested by the employee in a week.
Considering the above provisions and cases, would an employee accept if an employer debits his earned leave for taking leave between weekly holiday(s) irrespective of his invested working hours?
Whereas as per Section 52 of the Factories Act, 1948, no worker can work consecutively for more than 10 (ten) days without a holiday for a whole day. There is a maximum-eligibility criterion for a worker to be eligible for a weekly holiday in a factory, while the Act doesn’t provide a similar provision.
New dimension on the introduction of Labour Codes
With the new labour codes coming into force soon, there is a new dimension to the eligibility for weekly holidays. Section 26 of the Occupational Safety, Health and Working Conditions Code, 2020 stipulates that no worker shall be allowed to work in an establishment for more than six days in any one week. On a plain reading of the said provision, it is understood that there is an eligibility criterion for entitlement to weekly holiday(s).
There is a prohibition on the employer to allow workers to work for more than six days. But, if leave is availed on a day before and post the weekly holiday(s), would the said leave taken discount the weekly holiday(s), and can the employer engage such worker on days, designated as weekly holiday(s)? This is something the companies must evaluate keeping in mind the current practice as well as the labour codes which will be enforced shortly.
However, the practice of provisioning sandwich leave policy is a grey area, especially in a commercial establishment, and is subject to challenge.
Questions to ponder over
- Labour law is a beneficial legislation, and the courts have observed in a plethora of cases that the key to the meaning of an expression has to be found out and the provision of the section has to be given a reasonable meaning considering the purpose and object of the statute and the other provisions of the statute as already observed by the court otherwise, it will be making a mockery of legislation[2]. The courts have repeatedly supported constructive construction of expression that fulfils the object of the legislation and for that purpose, if necessary, iron out the creases[3]. Whether provisioning for sandwich leave policy abjures the purpose of the weekly holiday provision?
- Do companies have the right to apply similar schemes for leaves with wages as stipulated under Section 15 of the Act for sandwiching weekly holidays?
- Can public holidays and leave with wages be sandwiched considering the present provisions of the law?
[1] AIR 1950 ALL 241.
[2] H. Shiva Rao and Ors. v. Cecilia Pereira and Ors., AIR 1987 SC 248; U.P. Drugs and Pharmaceuticals Company Limited v. Ramanuj Yadav and Ors., (2003) 8 SCC 334.
[3] Hongkong Bank and Shanghai Banking Corporation v. The Additional Chief Inspector, Shops and Establishment, Govt. of West Bengal and Ors., MANU/WB/0174/1988.
