Extended Weekend And Sandwich Leave Policy

Leave Policy

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

  1. 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?  
  2. 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?
  3. 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.

-Keerthanaa B,
Advocate and Jr. Associate

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2 thoughts on “Extended Weekend And Sandwich Leave Policy”

  1. B.Chanddashekhara Shetty

    Brain storming article, very nicely presented and the author deserves complements.
    According to me, that every establishement shall remain closed for a day in a week is not hold good in view of the changed atmosphere and also new concept of allowing establishments to work 7/24. Only the obligation is that such establishments shall have/engage additional manpower to ensure the provisions of labor law statuted applicble for working hours and weekly off etc. including safety and security of the personnel.
    Week is defined under S&CE Act as Seven days. It also states that no employee shall be allowed to work more than Six days in a week without a holiday for rest.
    This means, an employee to be entitle for weekly holiday, he may{shall?) have to work all the Six days in a particular week. If the employee has worked only five days or less, can the employer extend weekly holiday to him? ( in six days a week system). In respect of factories or in public transportation establishments, ten days contineous work is allowed as an exceptional case to avoid dislocation of manufacturig process.
    One interesting issue which I feel approriate to share is, at present we audit team are entrusted with a special audit of one of our esteemed clients which is going on. This is a vendor audit. Here, vendor has never extended weekly off. The vendor has ensured that most of the workers are present for duty five days and below and not allowed to work for six days in a week as per records! No weekly off is extended. Should we view thisas a voilaion of the provisions under the Act as none of them were worked for six days in a week. They were marked ‘A’ for rest of the days in the week.
    Working on five days system is as per the policy of the company and also in pursuance of employees service conditions agreed to. It is also stated that ‘leave can not be claimed as matter of right” which is quite reasonable to run the establishment or otherwise if majority of the employees avails the Sandwich leave, the organisation become sandwich. Such question arises in case of Casual or Sick leave, moreso in five days week working system. In factories, Casual leave is not mandatory and such cases arises only when such beefit is extended. In the leave rules of some companies, it is made clear for treating of suffix/affix leave or holidays
    in the contract of service.
    Merely on the grounds of welfare or beneficial legislaion, interpretting the provisions may not be correct unless the object of the provisions and its effect on the insustry shall also be viewed. With due respect to law courts, sometimes, due to cases not properly presented and argued before it, judgment may come out. To remind The judgment relating to excluding the Conveyance allowance from the definition of wages under ESI Act felt appropriate. It is difficult to agree and interpret that CA and Travelling allowance are one and same. CA is constant component of wages and is a part of CTC/wage bill where as TA is is contingent and payable only when employee deputed for outside work to meet the journey expenses and it is the reimbursement of expenses incurred for the official work. It may not be constant nor a part of CTC as per my understanding!

    -B.Chandrashekhara Shetty

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B. Chandrashekar Shetty - Advocate

Mr. Chandrashekar Shetty is a Senior Labour Law Compliance Auditor at BCP Associates and has audited multiple client companies across India. He is also a member of our senior legal advisory practice. Previously he has worked as Deputy Controller, Manager-Industrial Relations and Industrial Relations Officer in KPTCL, Bangalore for more than 30 years. Prior to this, he has dealt with Legal, Personnel and IR matters including Wage Settlements, Grievance Machinery, Manpower Study and Social Security Compliances for about 10 years. He is a Faculty member of Labour Law, HRD Centre, KPTCL Bangalore.

Mr. Shetty holds a B.Com. and L.L.B. degree, Post-Graduate Diploma in Business Administration, Diploma in Public Relations from Bangalore University and PG Diploma in Industrial Relations & Personnel Management from Bharatiya Vidya Bhawan. He is enrolled as Advocate in Karnataka Bar Council and is a Govt. Arbitrator of Chit Funds in Karnataka.

S Venugopal Rao

S Venugopal Rao is an experienced labour law and service matters expert and is a member of the senior advisory team at BCP Associates. Having joined the chambers of Mr. B C Prabhakar in 2012, he is knowledgeable and well versed in multiple employment and labour law topics.

S Venugopal Rao holds a Bachelor’s degree in Science from Karnataka University, Dharwar and Bachelor of Law from Bangalore University. He enrolled as advocate in Karantaka State Bar Council in 1976. He joined the chamber of Sri. Kolachalam Srinivasa Rao a leading civil advocate. After practicing for 6 years at Ballari, he joined Orient Paper Mills, Orissa (of G P Birla Group). He was designated as Manager (Law) under the Factories Act in 1995. In 1999, he joined Andhra Pradesh Paper Mills Rajahmundry as Manager Legal and was subsequently elevated as Dy. General Manager (Legal). As Factory Manager & Legal Head, he oversaw compliance of Factories Act and Rules there under towards safety, health and welfare, including compliance under Pollutions and Environmental laws and Explosives Act, etc. Additionally, he is well acquainted with Environment Management System ISO 14001: 2004, Occupations, Health and Safety Series 18000:1999. As Legal head in APPM he has briefed and appeared along with Senior Advocate before Appellate Authority constituted under Water (Prevention & Control of Pollution) Act. He retired from the services of Andhra Pradesh Paper Mills in 2011.

As legal head he has handled important cases both in Labour and Civil and has experience in drafting and vetting Contracts, Agreements, Lease Agreement, Conveyance Deeds, , Affidavits and scrutiny of several legal and other documents, Preparing and settling Petitions, Appeals, Plaints, Written Statements, Rejoinders, Affidavits and Written Arguments etc. for submission/pleadings for various legal proceedings.

C K Devappa Gowda - Advocate

C.K. Devappa Gowda (CKD) is an Advocate and Labour Law expert. He holds a Bachelor’s Degree in Science from the University of Mysore and a Degree in Bachelor of Law from Bengaluru respectively. He also holds a Diploma in Social Service Administration from the National Institute of Social Science, Bengaluru. After completing his studies, he had enrolled as a Advocate and initially practiced in the Civil Code attached to the office of BCP. He then worked as Personnel Officer in Chemicals and Textile Manufacturing Industries for 5 years. Thereafter took up employment in one of the largest Public Sector Bank. He has worked in different parts of the country and has extensive experience in the cross country IR domain. The significant part of his service was at corporate level overseeing and implementing HR policies and practices and management of IR. He has been a member of personnel committee of Indian Bank Association.

After retirement from service, Mr. Gowda has been working with Mr. BC Prabhakar’s firm for the last 12 years. He has expertise in all areas of people management, drafting of documents relating to service matter including the settlements under the ID Act. He has dealt with all employment laws including appearance before the Courts, Tribunal and Authorities under the different Labour Laws. Mr. Gowda is one of the senior Labour Law experts at BCP Associates.

Srijatha Ghosh - POSH Specialist & Advocate

Srijata Ghosh serves as external member on the Internal Committee of several Companies across various sectors. She handles all kinds of POSH related matters including investigations and inquiries. She provides Training on Sexual Harassment across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members on the legislation (The Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal Act, 2013). She also formulates Policies for Prevention of Sexual Harassment at Workplace (“POSH”) and advises Companies on setting up of their Internal Committees. Srijata is involved in providing Legal Advisory services on POSH and other labour law matters for various clients.

In her previous experience, she has extensively dealt with End-to-End Contract Management, Due Diligence, POSH Compliances, Legal Advisory, etc. Srijata worked with Companies like Accenture India Private Limited, Quess Corp., Capgemini Business Services (India) Limited and Pramata Knowledge Solutions Private Limited. Srijata has handled varied legal issues including drafting, vetting and negotiation of contracts, drafting policies of various organizations. She has resolved issues relating to employment laws and has worked closely with the HR teams. She has provided legal advisory services to senior management. She was also associated with Kolkata High Court in counselling clients with legal matters such as Property, Due Diligence etc. Srijata has worked in an LPO Service Firm, Manthan Legal Services Private Limited for Legal Research, depositions, medical summaries, demand drafting etc.

Srijata completed her B.A.LL.B from M. S. Ramaiah College of Law, Bangalore University in 2009. Srijata is a member of the Karnataka Bar Council since 2010. She is also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Caroline Lobo - POSH Specialist & Advocate

Caroline Lobo has been with BCP Associates for the past 2+ years. She has been handling matters and Inquiries related to the POSH Act including conducting inquiries and trainings/awareness programmes for Senior Management, employees as well as members of the Internal Committee on the POSH Legislation (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) to address Workplace Harassment of Women. She is a member of the Internal Committee for many varied companies and organisations and has reviewed and scrutinized numerous hearings and inquiries on matters relating to sexual harassment at workplace.

She has also handled matters relating to employer-employee related Enquiries, wherein she has reviewed and conducted hearings and enquired into the matters and has guided the Internal Committee and provided guidance in providing recommendations to the management. She is also a Member of the Gender Sensitivity Sub-committee of Karnataka Employer Association (KEA).

Prior to joining BCP Associates, Caroline has has a wide range of experience in corporate, commercial and contract law, mergers and acquisition and has undertaken drafting, vetting, negotiating and finalizing legal and commercial transactions. She started her career in litigation then moved onto the Corporate sector. In the span of 13 years, she has worked at Chambers of Advocate Jayashree Murali, Krishnamurthy and Co. Legal Consultants, Colt Technology Services and Oracle India Pvt. Ltd. She always had a keen interest in Women and Child related issues. She has worked with Child Welfare Committee and NGOS’s. In addition, she has worked with Swasthi Health Resource and Centre, where she was the External member to the Internal Committee (IC). She worked closely with the committee in strategizing, planning, reviewing and implementing the assigned tasks, which included building material to raise awareness against sexual harassment at workplace. Further, she has been involved in conducting inquiries into matters related to sexual harassment at workplace.

Caroline earned her Law degree from University Law College, Bangalore, from where she graduated in the year 2005.

Manoj Kumar – Senior Associate

At BCP Associates, Manoj Kumar is involved in managing and conducting labour law compliance audits of principal employer and contractors. He is also involved in client co-ordination and conducting labour law training programs for vendors. He has conducted on-ground labour law audit for factories. Manoj also provides support in advising vendor clients on labour law queries. He completed B.A., LL.B. from BMS College of Law, Bangalore in 2016

Rashmitha Venkatachalam Das - POSH Specialist & Advocate

Rashmitha Venkatachalam Das is the External Member of the Internal Committee of several reputed Organizations across various sectors. Handling complex inquiries has been her forte and she is extremely passionate about it. She is actively involved in providing Training on Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members. Rashmitha possesses capabilities in delivering sessions in Hindi and Kannada, in addition to English. She has formulated Policies for Prevention of Sexual Harassment at Workplace (“POSH”), advised companies on setting up of their Committee. Rashmitha is involved in providing Legal Advisory services on POSH for various clients spread across diverse sectors. She has also been handling domestic enquiries for various clients. 

Rashmitha possesses experience both at Law Firms and Corporates in various capacities. She started her career at Krishnamurthy and Co, Legal Consultants and then moved on to work as an In- House Legal Counsel with Companies such as Biocon Limited, Columbia Asia Hospitals Private Limited, Adecco India Private Limited. With a long stint in the Corporate side, Rashmitha decided to pursue further education in Law with a specialization in Labour and Employment Laws. She has rich experience in drafting, vetting and negotiation of various types of contracts, providing legal opinions and has driven the team in formulating process and procedures and their implementation. She has drafted several employment related policies in Corporates. Rashmitha has been a part of various key committees in Organizations and assisted committees in scrutiny of documents pertaining to human organ transplant as well as clinical trials.

Rashmitha holds an LL.M. in Labour and Employment Laws from University Law College, Bangalore, which she completed in the year 2018 with Two Gold Medals. She is also a Rank Holder at the University. She has completed BA, LL.B. from Bangalore Institute of Legal Studies, Bangalore University in the year 2009. Rashmitha is a member of the Karnataka Bar Council since 2009 and also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Manisha Vidyadhar – Senior Associate

At BCP Associates, Manisha Vidyadhar is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. Manisha also provides support in advising vendor clients on labour law queries.  She completed B.A., LL.B. from BMS College of Law, Bangalore in 2016.

Amrutha Ananth – Principal Associate

At BCP Associates, Amrutha is a part of the Legal Advisory practice, Legal Audit practice and Labour Code Alignment Programme (LCAP). Amrutha specialises in Labour and Employment Laws and compliance having advised some of India’s leading companies for some of their most complex labour law matters.

Amrutha has more than seven years of experience in labour and employment law and has conducted several audits for both, principal employer and contractor for various leading IT/ITES companies, manufacturing sectors like pharma, automobile, construction and start-ups.

She is actively involved in drafting and reviewing employment contracts, HR policies, Employee Handbook, show cause notice, etc. for various organizations spread across diverse sectors. As a part of the Labour Code Alignment Program, she assists companies in review and alignment of their existing wage and employment policy with the provisions of the Labour Codes.

Sunil Arya – Principle Associate

At BCP Associates, Sunil Arya is part of the labour and employment law advisory and HR Policy practice and is actively involved in drafting and reviewing of employment contracts, opinions, HR policies, employee handbook, show cause notice, etc. for various clients spread across diverse sectors. He conducts training on labour and employment laws. Sunil is also involved in labour law compliance audits of principal employer and contractors and has conducted on-ground labour law audit for factories. In addition, he is engaged in knowledge creation and management of the firm and keenly writes on developments in labour and employment laws.

Prior to joining BCP Associates, Sunil has 10 years of post-qualification experience in diversified portfolios of advisory, drafting, policy analysis and dispute in the domains of contracts, general civil matters, employment law, competition law and construction arbitration matters. Sunil started his career as a Law Researcher in Delhi High Court. He moved on to be part of regulatory analysis team of CIRC, a unit of CUTS International. In addition, Sunil has been part of legal team of Jindal India Thermal Power Limited. He has also taught competition law, tax law and investment law at VIPS, Delhi.

Sunil holds LL.M. from The Indian Law Institute, Delhi. He is First Rank Holder in his thesis. He completed B.A, L.L.B. (Hons.) from I.P. University, Delhi. He also holds First Rank in P.G. Diploma in Competition Policy and Laws from The National Law University, Delhi.

Chandrakala K A – Principle Associate

At BCP Associates, Chandrakala has 12+ years of experience in conducting and managing labour law compliance audits of principal employer and contractors. She is also involved in co-ordination with many clients. She has conducted on-ground labour law audit for factories. She also provides support in advising vendors on labour law queries. Chandrakala is actively involved in research and providing valuable inputs to the firm pertaining to updation in labour law audit function.

Chandrakala started her career in litigation in chamber of Sri. Ashok where she was involved in drafting, pleading and appearance before Karnataka High Courts and lower courts on the criminal side.

Chandrakala completed B.A in Arts from Kuvempu University, Shimoga in 2003 and LL.B. from Mangalore University in 2006.