Hi Members, Could you please explain the provisions under subsection 2 of section 2A in Gratuity law? Like which situations are covered under it?
From India, Delhi
3From India, Delhi
The relevant portion of Section 2A (2) of the Act is extracted below:
2A. Continuous Service.- (1) For the purpose of this Act-
(1) An employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
(2) Where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer-
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case:
(b) for the said period of six months if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
Explanation.- For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks].
Section 2A of the Act defines Continuous service for the purpose of the Act. It envisages two types of situations, the uninterrupted service and interrupted service. As per Sub-section (1) uninterrupted service would include service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee.
Coming to Section 2(2) it provides for counting interrupted service as continuous service. It specifically provides that in case the employee has worked for 240 or more days in a period of 12 months with reference to the calculation date (i.e. date of termination of service) in case of 6 day working or not less than 190 days in any other case and in proportion thereof for 6 months service. Explanation to the Sub-section gives the details of the incidents in service period to be reckoned for the purpose.
If there is any specific query, the same may be addressed to the group.
From India, Mumbai
2A. Continuous Service.- (1) For the purpose of this Act-
(1) An employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
(2) Where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer-
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case:
(b) for the said period of six months if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
Explanation.- For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks].
Section 2A of the Act defines Continuous service for the purpose of the Act. It envisages two types of situations, the uninterrupted service and interrupted service. As per Sub-section (1) uninterrupted service would include service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee.
Coming to Section 2(2) it provides for counting interrupted service as continuous service. It specifically provides that in case the employee has worked for 240 or more days in a period of 12 months with reference to the calculation date (i.e. date of termination of service) in case of 6 day working or not less than 190 days in any other case and in proportion thereof for 6 months service. Explanation to the Sub-section gives the details of the incidents in service period to be reckoned for the purpose.
If there is any specific query, the same may be addressed to the group.
From India, Mumbai
Subsection 2 covers the entire service period before the date of termination and it covers the interruption in the last 12 months as also any interruption anywhere in the service period. For instance let us take the case of an employee joining service on 1st January 2010 and the service comes to an end on say 25th July 2021. For the purpose of calculation of gratuity and reckoning the continuous period of service, the start point is 25th July 2021, then go back by 12 months to see whether Section 2A is fulfilled , further go back to next 12 months from 25th July 2020 and so on and so forth till 25th July 2010 is reached., then there is only 6 months to be computed.
From India, Mumbai
From India, Mumbai
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