THE BOMBAY SHOPS & ESTABLISHMENTS ACT, 1948
- Ms. Ms. SON SONII CHAR CHARDE DE ROLL NO. 866
INTRODUCTION Legisl Legislati ation on to regula regulate te condit conditio ions ns of work work in shops & commercial establishments has been in force in the State of Maharashtra for nearly 71 years. The The fir first st Shop Shop Act Act of of the the Stat State e was was enacted in 1939. By repe repeal alin ing g the the old old "Bom "Bomba bay y Sho Shops ps & Establishments Establishments Act, 1939", a new enactment known as "The Bombay Shops & Establishments Act, 1948" was brought into force from 11th January 1949 on the basis of Mr. Shantilal Shah¶s Committee¶s Report. The The pre prese sent nt Sho Shop p Act Act of 1948 1948,, is an improved version of the 1939 Act.
Definition Of a Shop
Shop Shop is, is, an esta establ blis ishm hmen entt whe where re good goods s are sold or an establishment where services are rendered to the Customers.
A pla place ce whe where re ser servi vice ces s are are sold sold on Reta Retailil basis basis is also calle called d a Shop. Shop. Therefore Therefore,, an establishment engaged in arranging for musical performance performance on occasions such as marriages marriages etc., is a Shop. An asso associ ciat atio ion, n, whi which ch is neit neithe herr carry carryin ing g on any trade or business nor rendering any services to outsiders, will NOT come within the definition of the term µShop¶ or µ Commercial establishment¶. establishment¶. Like Association of Flat Owners, Church
Applicability/ Field of Operation of the Act The The oper operati ation on of of the the Act is con confin fined ed to the the municipal areas specified in Schedule I of the Act. But But the the Stat State e Gov Gover ernme nment nt is is req requi uire red d to extend the operation of the Act to other areas having population of 25,000 & more. The The Act appl applie ies s to all all empl employ oyee ees s (inc (inclu ludin ding g apprentices) and also covers indirect labour, that is contract labour If any any shop shop or or comme commerc rcia iall est estab ablilish shme ment nt situated within the precincts of a factory is not connected with the manufacturing process of the factory, it will be governed by the Shops & Establishment Act. But State Government can apply all or any of the provisions of the Factories Act to such shop or commercial establishment. (S.70)
Types of Premises governed by the Act SHOPS COMMERCIAL ESTABLISHMENTS ESTABLISHMENTS RESIDENTIAL HOTELS & CLUBS RESTAURANTS EATING HOUSES THEATRES
Registration of the Establishments The procedure for getting an establishment establishm ent registered under the Act is:
Any esta establ blish ishmen mentt situ situat ated ed in Mumb Mumbai ai has has to to identify in which area/ward the Shop or commercial establishment is situated and accordingly make an application for registration to the respective ward along with prescribed fees. The establishment establishm ent has to make an application for registration in Form "A" along with following documents.
1.Memorandum & Article of Association 2. List of Directors with their Residential Address 3. Proof of place viz. Copy of Leave & License Agreement. 4.. Proof of payment made to any local authority viz. Copy of of Electri Electricit city y bill, bill, Telepho Telephone ne bill bill etc. etc.
5. A/c Payee Cheque towards the Registration Fee depend on the number of employees in favour of µMunicipal µMunicipal Corporation of Greater Mumbai'
In case case where here the the esta establ blis ishme hment nt is situ situat ated ed outside the Mumbai Municipal Corporation Jurisdiction but within the State of Maharashtra, they have to approach to the office of the Commissioner of Labour for registration in Form "A" together with challan after remitting fees into the Government treasury / State Bank of India as prescribed in the Rules.
On rece receip iptt of the the appl applica icatio tion n & the the fees fees,, the the Inspector, on being satisfied about the correctness of the particulars contained in the application, will register the establishment & will issue a µRegistration Certificate¶. Certificate ¶.
Time limit of Registration The The Emp Emplo loye yerr of an an est estab ablilish shme ment nt has has to to apply to the Inspector of the local area concern in Form "A" along with prescribed fees and necessary documents for getting the establishment registered under the Act within 30 days on which the establishment establishment commences its work. On an appl applic icat atio ion n from from the the empl employ oyer er,, the Registration Certificate can be granted for a period of 3 years at a time on payment of fees for that period.
Notice Of Change 1.In 1.In case case of any any cha chang nges es in in the the infor informati mation on furnished at the time of registration or renewal in Form "A" & "B" respectively, the employer has to notify such changes to the Inspector in prescribed form along with such fees. The changes has to be notified in Form "E" which shall be submitted to the Inspector of the area within 15 days in case of change in employment strength and within 30 days in case of any other changes. 2. The The not notice ice of chan change ge in in For Form m "E" "E" shal shalll be be accompanied by the Original Registration Certificate with the necessary documentary evidence. On physical verification of the changes by the Inspector, he shall endorse the changes on the Registration Certificate and return back duly authenticated, within two weeks time.
Renewal of the Registration Certificate
The Regis Registr trat atio ion n Cert Certifi ifica cate te is gene genera rall lly y valid valid up up to the end of the calendar year for which it is granted under Sec. 7(2A) it is required to get every Registration Certificate renewed for next calendar year
The The emp emplo loye yerr has has to get get the the regi regist stra rati tion on cert certif ific icat ate e renewed every year by applying to the Shop Inspectors in the prescribed form (Form B) accompanied by prescribed fees.
Renewal is made under sec 7(2A) of the Bombay Shops and Establishment Act,1948
The appl applica icati tion on for rene renewa wall shou should ld be mad made e not not less than fifteen days before the date of expiry of the registration certificate.
As per per Sec Sec.. 7(2B 7(2B)Th )The e regis registra tratio tion n certi certifica ficate te may be renewed at the option of the employer, for a period of three years In such such case cases s the the Reg Regist istra ratio tion n Certi Certific ficate ate shal shalll be valid up to the end of 3rd calendar year including and from the year to which it is granted or renewed as the case may be. If the renew renewal al app applic licat ation ion is is not not made made within ithin the period prescribed but it is made within thirty days after the date of expiry of Registration Certificate or the renewed Registration Certificate as the case may be, then in such cases an additional fee as late fee equal to half of the fee payable for normal renewal of Registration Certificate is charged .
Issue of Duplicate Certificate In case the Origin Original al Regist Registrat ratio ion n Certi Certific ficate ate is lost, destroyed or defaced the employer shall report the matter to the Sr. Inspector of the area/ward and shall make an application for issue of duplicate certificate along with the fee of Rs. 20/-. Closing of Establishment The The emp emplo loye yerr shall shall inf infor orm m the the Ins Inspe pect ctor or of of the area within 10 days of the closure of the establishment, vide an application on the company letterhead stating the reason of closure and the Original Certificate shall s hall be surrendered along with the application.
The The Gove Govern rnme ment nt of Maha Mahara rash shtr tra, a, by by a notification dated 15.12.2003, has revised the fees for : (1) registration & renewal of registration, & (2) notice of change. The revised fees are as under:-
Shops & Establishme nts having
Registration Fees
Fees
for renewal of registration certificate per year
Trade refuse charges per year
Nil Employees
Rs. 100/-
Rs. 100/-
Rs. 300/-
1 to 5 employ Rs. 300/ees
Rs. 300/-
Rs.900/-
6 to10 empl Rs.600/oyees
Rs.600/-
Rs.1,800/-
11 to 20 em Rs.1000/ployees
Rs.1000/-
Rs.3000/-
21 to 50 em Rs.2000/ployees
Rs.2000/-
Rs.6000/-
51 to 100 employees
Rs.3500/-
Rs.3500/-
Rs.10500/-
101 and above employees
Rs.4500/-
Rs.4500/-
Rs.13500/-
Fees
for Notice of change, to be submitted alongwith Form E Commercial Establishment
Rs.100/-
Shops having Employee
Rs.100/-
Shop having no employee
Rs.100/-
Residential Hotel
Rs.100/-
Restaurants & Eating Houses
Rs.100/-
Theatres & Other places of Public Amusement or Entertainment
Rs.100/-
General point to be noted 1.The Registration Certificate to be displayed at the prominent place in the office premises. 2. It is advisable to display the attested photocopy of the Registration Certificate and the Original may be kept in safe custody of the responsible person of the establishment. 3. The name of the establishment is to be displayed in the local language as well as in English. For the other States the procedure of Registration, Renewal & Notice of Change remains the same, only the Form number and fee defers. The respective location head should collect the information from the office of Commissioner of Labour situated in the area.
Name Board of the Establishment Establishment Rule Rules s mad made e unde underr the the Act Act prov provid ide e that that the the name board of every establishment shall be in Marathi in Devanagari Script. It is perm permis issi sibl ble e for for the the emp emplo loye yerr to hav have e the name board in any other language or script. But the lettering of the name board shall not be less bold than any other language or script.
Trade License In the the Sta State te of Goa Goa and and West West Beng Bengal al before obtaining Shops & Establishment Registration Certificate, employer employer has to obtain Trade License from the office of Municipal Corporation, on receipt of which the office of the Labour Commissioner shall issue the Shops & Establishment Registration Certificate.
Working Hours of Shops The The main main rest restri rict ctiv ive e prov provis isio ions ns of of the the Act Act about the working hours off employees in shops & commercial establishments are as follows:(a) The general general rule about about the opening opening hrs of shops is that they are not allowed to be opened earlier than 7a.m. but shops selling goods like milk, vegetable, fish, etc., are allowed to be opened from 5a.m. onwards.(S.10) (b) The general general rule about about the closing hours of shops is that they must be closed at the latest by 8:30p.m. But shops selling goods like pan, bidi etc., are allowed to be kept open up to 11p.m. (S.11)
(c) Commercial establishments are not allowed to be opened earlier than 8:30a.m. & closed later than 9:30p.m. in a day(S.13) (d) An employee in a shop or commercial establishment cannot be required or allowed to work for more than 9 hrs in a day & 48 hrs in a week. (S.14) (e) He must be allowed an interval of rest of at least 1 hr after 5 hrs of continuous work. (S.15) (f) His spread-over cannot exceed 11hrs in a day (Ss.16&17).
(g) Every shop & commercial establishment should remain closed on one day of the week. No deduction can be made from the wages of any employee in a shop or commercial establishment on account of any day on which it has so remained closed. (S.18) Note: the above restrictions can be relaxed in certain circumstances.
Working Hours of Restaurants The The mai main n rest restri ricti ctive ve pro provi visi sion ons s of the the Act Act about the working hrs of employees in residential hotels, restaurants & eating houses are as follows: (a) A restaur restaurant ant or eating eating house house cannot cannot be opened earlier than 5a.m. & closed later than 12 midnight for service. (S.19) (b) An emplo employe yee e in a ree reesta staura urant nt or eati eating ng house may be required to commence work from 4:30a.m. onward. He cannot be required to work after 00:30a.m. (S.19)
(c) An employee in a residential hotel, restaurant or eating house cannot be required or allowed to work for more than 9 hrs in a day & 48 hrs in a week. (S.21) (d) He must be allowed an interval of rest of at least 1 hr after 5 hrs of continuous work. (S.22) (e) His spread-over cannot exceed 12hrs in a day (S.23) (f) He must be given at least one day as a holiday. No deduction can be made from the wages of any employee on account of such holiday. (S. 24)
Working Hours of Theatres The The mai main n rest restri ricti ctive ve pro provi visi sion ons s of the the Act Act about the working hrs of employees in theatres & other places of public amusement or entertainment are as follows: (a) A theatr theatre e or other other place place of publ public ic amusement or entertainment must be closed at least by 00:30 a.m. (S.26) (b) An employ employee ee in a theatre theatre or other other place of public amusement or entertainment cannot be required or allowed to work for more than 9 hrs in a day or 48 hrs in a week. (S.28)
(c) He must be allowed an interval of rest of at least 1 hr after 5 hrs of continuous work. (S.29) (d) His spread-over cannot exceed 11hrs in a day (S.30) (e) He must be given at least one day as a holiday. No deduction can be made from the wages of any employee on account of such holiday. (S. 31)
Employment Of Children & Women The The emp emplo loym ymen entt of chil childr dren en is is tot total ally ly prohibited. Anybody who is below the age of 15 yrs is considered to be a child. No child can be required or allowed to work whether as an employee or otherwise in any establishment. (S.32) Anyb Anybod ody y bet betwe ween en the the age age of of 15y 15yrs rs & 17yrs is considered to be young person. No young person can be required or allowed to work, whether as an employee or otherwise, in any establishment(a) After After 7:00p. 7:00p.m.; m.; (b) For more than than 6 hrs hrs in a day day &; (c) If the the work involve involves s danger danger to life, life, health health or morals. (Ss.33, 34 & 34-A)
Rest Restri rict ctio ions ns are are pla place ced d on the the ope openi ning ng & closing hrs for women as well as on giving them dangerous work. Thus, no woman can be required or allowed to work, whether as an employee or otherwise, in any establishment after 9:30p.m. In other words, women cannot be required or allowed to addend work late in the evening. Simi Simila larl rly y, no woma woman n wor worki king ng in any any establishment, whether as an employee or otherwise, can be required or allowed to perform work involving danger to her life, health or morals. (Ss.33 & 34-A)
Wages For Overtime Work When When any any emp emplo loye yee e is requ requir ired ed to to wor work k overtime, i.e. in excess of the limit of hours of work, he must be paid for such a work at double the rate of his ordinary wages. The The lim limit it of of hou hours rs of of wor work k for for the the purp purpos ose e of calculating calculating overtime is 9 hrs in any day & 48 hrs in any week. Limi Limitt for for wor worki king ng ove overt rtim ime e shal shalll not not exce exceed ed 3 hrs & the employer may engage additional number of employees for the purpose of the work beyond the said overtime hours. (S.63)
Leave With Wages The The mai main n prov provis isio ions ns of of the the Act Act abo about ut the the grant of annual leave with wages are as follows: (a) An employ employee ee is entitled entitled to annual annual leave leave with pay of 21 days for 240 days of work. (b) An employ employee ee who has not worked worked for for one year is entitled to leave with pay for 5 days for every 60 days of work. (c) An employ employee ee is entitled entitled to be paid paid before before his leave begins, half the amount of his leave pay. (d) Leave Leave with pay pay can be accumu accumulate lated d up to 42 days
A dis disch char arge ged d empl employ oyee ee is ent entit itle led d to leav leave e pay for the balance of leave to his credit. (Ss. 35 to 37) In addi additi tion on to to ann annua uall leav leave e wit with h pay, pay, an an employee of a shop or establishment is entitled to a paid holiday on 26 th January, 1st May, 15th August & 2nd October every year. (S.35(4)) An empl employ oyee ee who who is give given n a holi holida day y or is on leave in accordance with the provisions of the Act is prohibited from working in any establishment on such holiday or during such leave. (S.65)
Applicability Applicability of other Acts Payment of Wages act, 1936 Sect Sectio ion n 38 38 of of the the Bomb Bombay ay sho shops ps & Establishment Establishment Act gives power to the State Government to extend the application of the Payment Payment of Wages Act to any class of establishments establishments or any class of employees to which the Bombay Shops & Establishment Establishment Act applies. Accordingly, Accordingly, the State Government has extended the application of the Payment of Wages W ages Act to establishments establishments situated in Greater Bombay, Thane, Poona, Sholapur, Kolhapur & Nagpur.
Workmen¶s Compensation Act, 1923 Acco Accord rdin ing g to Sect Sectio ion3 n388-A A of the the Bomba Bombay y Shops & Establishments Act,1948, the provisions of the Workmen¶s Compensation Act are applicable to the employees or the establishments to which the Bombay shops & Establishments Act, 1948 applies. An emplo employe yee e wor workin king g in a cleric clerical al capa capacit city y in an establishment to which the Bombay shops & Establishments Act, 1948 applies is entitled to claim compensation under the Workmen¶s Compensation Act,1923. by virtue of section 38-A of the Bombay Shops & Establishments Act,1948 he is deemed to be a workman within the meaning of the Workmen¶s Compensation Act & therefore, it is not necessary for him to prove that he is a workman under the said Act.
Industrial Employment Employment (Standing Orders) Act, 1946 Acco Accord rdin ing g to to Sec Secti tion on 3838-B B of of the the Bomb Bombay ay Shops & Establishments Act,1948 the provisions of the Industrial Employment (Standing Orders) Act, 1946 in its application to the State of Maharashtra, are applicable to all establishments wherein 50 or more employees are employed & to which the Bombay Shops & Establishments Establishments Act,1948 applies.
Maternity Benefit Act, 1961 Sect Sectio ion n 3838-C C of of the the Bomba Bombay y Sho Shops ps & Establishments Act,1948 as well as the proviso to sub-section (I) of Section 2 of the Maternity Benefit Act gives power to the State Government to extend the application of the Maternity Benefit Act to women employees in any establishments or class of establishments. Acco Accord rdin ingl gly, y, the the Stat State e Gov Gover ernm nmen entt has has extended the application of the Maternity Benefit Act to all shops, commercial establishments, residential hotels, restaurants 7 eating houses to which the Bombay Shops & Establishments Act,1948 applies but the Employees¶ State Insurance Act does not apply.
NOTE: If the rights or privileges conferred on an employee under any other law, contract, custom, usage, award, settlement or agreement are more favourable than those conferred under the Shops & Establishments Establishments Act, then the former will prevail over the latter. (S.69)
Health & Safety Measures Every establishment must take appropriate measures as per the provisions of the Act & the rules(a) To keep the the premi premises ses clean; clean; (b) To keep keep the premi premises ses ventilat ventilated; ed; (c) To keep keep the premi premises ses sufficien sufficiently tly lighted lighted during the working hours; (d) To prote protect ct the premise premises s against against fire; & (e) To provid provide e & maintain maintain a first aid aid box if a manufacturing manufacturing process is carried on in the premises (Ss.39 to 42-A)
Powers Of the Inspectors An Inspector appointed under Bombay Shops & Establishments Act, 1948 has power(a) To enter any place which which is an an establish establishment; ment; (b) To make make examin examinatio ation n of the the premise premises, s, registers, records & notices; (c) To take take evide evidence nce of any person person;; (d) If he he suspe suspects cts that that an emplo employer yer has has committed an offence under Section 52 or 55, to seize the necessary registers, records or other documents & retain them for a reasonable period for examination thereof or for prosecution of the employer. (S.49)
Termination Of Service Requirements: (a) If an an employ employer er wants wants to termina terminate te the the services of any employee who has been in his continuous employment for one year or more, the employer can terminate his services by giving him 30 days¶ notice in writing or wages in lieu of such a notice. (b) If an an employ employer er wants wants to termina terminate te the the services of any employee who has been in his continuous service employment for less than one year but more than 3 months, the employer can terminate his services by giving him 14 days¶ notice in writing or wages in lieu of such notice. Not required in case of less than 3 months. (S.66)
(c) If the services of an employee are terminated without giving such person any notice or wages in lieu of notice, as per section 66 of the Act, his termination termination is bad in law & he is entitled to reinstatement with continuity of service & full back wages. (d) When an employer terminates the services of any employee (by way of Discharge or Dismissal) for misconduct, the employer need not give any notice to the employee. (S.66 Proviso)
Maintenance Maintenance of Registers Form-A {Rule 5} Register showing dates of Lime Washing etc Form Form-H -H,, For Formm-J J {Rul {Rule e 20(1 20(1)} )} (if (if open openin ing g& closing hours are ordinarily uniform) Register of Employment in a Shop or Commercial Establishment Form Form-I -I {Rul {Rule e 20(3 20(3)} )},, Form Form-K -K (if (if ope openi ning ng & closing hours are ordinarily uniform) Register of Employment in a Residential Hotel, Restaurant, Eating-House, Theatre, or other places of public amusement or entertainment
Form-M {Rule 20 20(4)} Register Register of Leave ± This and and all the above above Registers have to be maintained by the Employer Visit Book This shall be a bound book of size 7´ x 6´ containing at least 100 pages with every second page consecutively numbered, to be produced to the visiting Inspector on demand. The columns shall be: Name of the establishment or Employer Locality Regi Regist stra rati tion on Num Number ber Date and Time
Exemptions
Temporary exemption from the ³Operation´ of the provisions of the t he Act Act
Permanent exemption from the ³Application´ of the provisions of the Act Act
Government¶s power to exempt establishments establishments from the provisions of the Act are as follows: (a) The Governm Government, ent, by issuin issuing g a general general notification, can temporarily exempt all establishments establishments from all or some of the provisions of the Act by suspending the operation of such provisions on account of any holidays or festive occasions. (b) The Governm Government, ent, by issuin issuing g a special special notification, can permanently exempt any establishment from all or some of the provisions of the Act by making such provisions inapplicable inapplicable to that establishment establishment on account of the special requirements of that establishment. (Ss.4 &6)
Government can suspend the operation of the provisions of the Act on account of the following holidays or occasions:(a) (a) Diw Diwali (b) (b) Gane Ganesh sh Chat Chatur urth thii (c) (c) Dass Dassh hera (d) (d) Pat Pateti eti (e) (e) Chri Christ stma mas s (f) Ramzan & Ramzan Id (g) Any occasion occasion on on which which a publi public c emergency is declared in this behalf by the Government
Conclusion Thou Though gh the the pres presen entt Bomb Bombay ay Shop Shops s& Establishments Act, 1948 has undergone several improvements improvements during past several years, it has failed to fulfill the legitimate expectations of its beneficiaries due to its inadequate inadequate provisions & unsatisfactory implementation. Thus Thus,, itit has has to be revi review ewed ed aga again in & shou should ld be implemented properly.
