CONTINUED AND UNINTERRUPTED SERVICE OF A WORKMAN
Author: Shrey Sahai, III year of B.A.,LL.B from Christ (Deemed To Be University)lavasa, Pune.
The term "continuous service" refers to service that is provided without interruption throughout the working duration. This comprises time off because of illness, a mishap, a severance, a protest, and so forth. The worker is not qualified to bonus payments if the disruption lasts 6 months or one year. He or she must have employed for nearly 190 days in a mine or coalfield-like institution (in which the work term is just 6 months) and 240 days in other fields.
In the case of Netram Sahu v. State of Chhattisgarh, a dispute came that before Supreme Court of India as to whether the services performed by the workers were regularised or not, and whether they were eligible to a gratuity sum or not. And apex court held that gratuity amount should be given to the worker as she has worked in the company for approximately 25 years. Which is comes under continuous and uninterrupted service. Not just this many cases arise before the court in which the actual definition of the continuous service was not at clear neither to petitioner nor to respondent. With the period of continuous services many of the benefits or the bonus are attached which the company always try to snatch from labourers as they are unaware of the benefits because of the illiteracy. So to protect their interest supreme court clarified the definitions many of the times.
Continuous and uninterrupted service have been defined in many acts i.e. Industrial Dispute Act, 1947, The payment of Gratuity Act, 1972, Fair work Act, 2009 which we will discuss further
INDUSTRIAL DISPUTE ACT, 1947
The definition of Continuous Service in Industrial Dispute Act is defined in secion 25B that says:-
(1) A working person would be referred to as being in continuous support for a timespan if he is, for that time frame, in constant support, similar to management that may be hampered by a documentation of illness or accepted leave, or a accident or an unauthorised protest, or a lock-out or a halt of job that's not a direct consequence of any insufficiency with regard to the working person;
(2) A working person will be considered intermittent aid underneath a company if he is not in continuous support within the techniques for paragraph (1) for a period of one year or half a year.
(a) for only a period of one year, whereas if working person has served at minimum – during in the 12 calendar month preceding the day on which the estimate is to be determined. a working person employed underground in a mining; and a working man employed underground in a mine for a hundred and ninety days; and In any other circumstance, two hundred and forty days;
(b) for a duration of 6 months preceding the time on which the account is to be made, if the working person has all things regarded worked under the firm for at least –
On behalf of a working worker, ninety-five days were spent beneath in a mine. In the other instance, 120 days
APEX COURT CLARRIFIED DEFINITION
The Apex Tribunal lately ruled that a worker who leaves employment willingly does not meet the definition of "continuous service," which is required for section 25F of the Industrial Dispute Act, 1947 to apply.
In the case of Manju Saxena v Union of India & Anr. Manju Saxena worked at HSBC bank as a "senior private assistant to the senior executive," a position that's become obsolete once the executive she assisted departed the company. The company then presented Saxena four other jobs, all of which paid just like her former job and didn't need her to earn any further schooling. Saxena, on the other hand, turned down all of the other positions given to her, and the company dismissed her contract by offering her 6 months' remuneration in place of the notification required underneath the contract of employment, rather than severance payment.
Saxena then filed a complaint under an Indian Dispute Act wih conciliation counselor, seeking an increase in payment but just not restoration. Her restoration in employment with complete back pay was awarded by the Central Government Industrial Tribunal in Delhi (CGIT). The company contested the ruling in a petition filed just before Delhi High Court, which returned the case to CGIT for a further determination as to whether Saxena was a "workman" under the Indian Dispute Act, 1947.
The CGIT issued a judgment finding Saxena to be a workman under the Indian Dispute Act and ordering his restoration with continued employment, complete back pay, and all other entitlements. The company's writ case before the high court was granted, and the CGIT ruling was overturned on the grounds that Saxena had willingly quit his job.
The Apex Tribunal invalidated Saxena's petition and found that perhaps the company was legitimate in suspending her employment. An worker can not have been in "continuous service" under section 25F of the Indian Dispute Act after it was determined that she must have willingly resigned her job. It was also decided that the money Saxena had previously obtained might be considered the complete payment of her claims.
THE PAYMENT OF GRATUITY ACT, 1972
Continuous service is defined under Section 2A of the Payment of Gratuity Act for the purposes of the Act. It contemplates two scenarios: continuous services and interrupted service. According to Subsection (1), continuous facility encompasses service that is disrupted due to illness, unfortunate incident, leave, non-attendance on job without notice (other than absences for which a request treating the non-appearance as an interruption in facility has been issued in full compliance with the establishment's standing orders, guidelines, or legislation controlling the employees), lay-off, protest, or lock-out, or interruption of job that is not because of the worker's wrongdoing.
Section 2(2) allows for disrupted services to be counted as uninterrupted service. It explicitly says that when a worker has continued to work for 240 or more days in a period of 12 months with regard to the computation deadline (i.e. date of dismissing an employee) in the particular instance of 6 day operating or not less than 190 days in any other scenario and in fraction thereof of the 6 months facility, the employee is entitled to a bonus. The sub-explanation section's provides specifics on the occurrences that must be accounted for during the service term.
THE FAIR WORK ACT 2009
The Fair Work Commission determined that because the word "continuous service" was not specified explicitly in the Fair Work Act, it really should be accorded its usual definition. Unauthorized absences, some forms of leave without pay, and various kinds of unpaid approved absences are deemed barred times and therefore do not qualify as services. An worker's uninterrupted engagement with their company is not interrupted by an exempted time. It's doesn't, however, count against the worker 's total time on the job.
In other words, under section 22(3) of the Fair Work Act, employment that is not uninterrupted might be considered continuous in some cases, dependent on the grounds for the absences.
The Fair Work Commission recently investigated whether a worker who left from full-time position and later had become a flexible employee for much the same company violated her "continuous service" requirement for an unjust termination complaint. It was finally decided in the employee's advantage that, notwithstanding her status change, she had maintained a continuous employment connection.
Reasons of that break Continuous Employment
Whenever there is a one-week (Sunday to Sunday) gap among two Employment contracts, unless such exemption qualifies, consistency is disrupted.
Whenever an worker quits one previous employer on December 20 and starts a fresh agreement with a different company on January 1, their uninterrupted engagement will be interrupted, and they will have to restart over with the subsequent company.
Undoubtedly, there may be occasions throughout a person's career when they will be out of the office for more then one week. With all this in consideration, some occurrences do not disrupt employment continuation. These are some of them:
Vacation time, medical leave, and pregnancy and paternal leave are all options.
If such an worker is away from office due to a 'short stoppage of employment,' such as the business becoming unsafe or being damaged by fire,
Whenever a worker is fired due to illness, it is known as a medical dismissal (provided they are re-employed on a new contract within a 26-week period, their continuity of employment will remain intact).
This assures that when these things happen, workers maintain essential job entitlements.
As we can see from the above that now various of the rules and regulations have been introduced that can regularize employee working time, their service hours, their continuous service period and even though the entitlements that can worker get after the termination of the contract.
The government and Supreme Court have given importance to these matters as the worker are essential part of our nation economy without them factories cannot operate.