When an employee tenders their resignation, the subsequent notice period often brings questions about taking leave. It's a common misconception that unused leave balances can be automatically applied during this time. However, the ability to take leave while serving a notice period is not an inherent right and is subject to specific employment rules, company policies, and legal precedents.
The Core Principle: Request vs. Automatic Right
The fundamental principle is that employees may request leave during their notice period, but the employer must sanction it. Simply possessing an unused leave balance does not automatically entitle an employee to be absent. Labour law analyses emphasize the importance of applying for leave in writing and obtaining explicit approval from the employer. Remaining absent without authorization can lead to disciplinary consequences, including loss of pay.
Concurrency of Leave and Notice Period
A significant aspect of this issue is whether sanctioned leave can run concurrently with the notice period. Generally, if an employment contract, service rules, or a specific non-concurrency provision does not prohibit it, sanctioned leave may indeed overlap with the notice period.
- Delhi High Court Ruling: In the 2007 case of Ghanshyam v. DMRC, the Delhi High Court held that if a notice clause does not forbid it, sanctioned leave during the notice period could ordinarily run concurrently.
- Supreme Court Counter-Ruling: Conversely, the Supreme Court took a different stance in CAMPCO Ltd. v. B. Vishnu Murthy (2022). Here, specific service rules explicitly stated that leave and notice could not run concurrently, meaning an employee could not insist on the overlap.
Risks of Unauthorised Absence
The distinction between sanctioned and unauthorised leave is crucial. Employees who remain absent without prior approval risk disciplinary action. Courts have also weighed in on this, examining whether absences were wilful or due to genuine circumstances.
- Misconduct: The Supreme Court observed in State of Punjab v. P.L. Singla (2008) that unauthorised absence or overstaying leave can constitute misconduct.
- Genuine Difficulties: However, in Krushnakant B. Parmar v. Union of India (2012), authorities were required to consider if absence was wilful, particularly when illness or genuine difficulties were involved. Medical emergencies, therefore, should be promptly communicated and supported by appropriate evidence.
Impact of Contract and Service Rules
The specific terms outlined in an employee's appointment letter, standing orders, service rules, and leave policy are paramount. These documents dictate the conditions under which leave can be taken during a notice period. Special statutes may also expressly prohibit the overlap of leave or vacation with the resignation notice.
Judicial decisions, such as those in Shriram Manohar Bande v. Utkranti Samiti (2024) and Rajesh Kumar Balak Ram Chandrakar v. INFLIBNET (2022), often refer to these specific contractual and statutory provisions to determine the legality of leave during notice periods, particularly in public sector employment.
Practical Takeaway for Employees
Employees should never assume that their unused leave can be automatically adjusted against their notice period. It is vital to thoroughly review all employment documents, including their appointment letter, standing orders, service rules, and the company's leave policy. Crucially, always obtain written approval for any leave requests made during the notice period to avoid misunderstandings, disciplinary actions, and potential loss of pay or other employment consequences.