Topic : As benefits given under labour law is exempted during
probation whether for payment of gratuity probation is included
in the term?
1. Whether benefits under labour law are exempted during
probation?
Yes, benefits are exempted during probation period the benefits
are exempted to an employee.
In CEAT LTD. V. MURPHY INDIA EMPLOYEES UNION
it was held that:
Once they had successfully completed the period of probation, they
were entitled to the status of permanent workmen, the
consequences whereof would be that they became entitled to all the
benefits and privileges in terms of the settlement as permanent
employees.
2. Whether for payment of gratuity probation period is included in
the term?
Section 2A of The Payment of Gratuity Act defines Continuous
service.
Section: 2A Continuous service:
For the purposes 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 order, 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;
In the case of B. SREEJA V. THE REGIONAL JOINT
LABOUR COMMISSIONER, KOLLAM & OTHERS it was
held that, The computation has to be done on 01.07.2007 taking
the preceding twelve calendar months from then on. She has a
continuous twelve month period of four years till 01.07.2003.
After her appointment on 18.09.2002 till 30.06.2003 she would
have around 295 days service. Hence in the preceding 12
months, from 30.06.2003, the petitioner if having more than 240
days service qualifies her first year to be treated as continuous
service, for the purpose of Section 4 as per Section 2A of the
Payment of Gratuity Act.
By analysing the case mentioned above it can deduced that
services of any 240 days in the first year can be qualified as
continuous service for the purpose of gratuity in furtherance it
can be concluded that probation period is also included in the
calculation of gratuity.