THE BOMBAY SHOPS AND ESTABLISHMENTS

ACT,1948

INTRODUCTIONThe Bombay Shops & Establishments Act,1948 is

applicable to regulate the service condition, working hours, leaves, weekly offs etc., of those who work in shops, commercial establishments, residential hotels, theatres and other places of public amusements etc.

Employees working in shops & commercial establishments had no protection in respect of working conditions.

An attempt was made in the year 1935 but it was not favoured by the then govt. The govt. itself carried out investigations, as a result the provincial Govt. of Bombay passed an Act namely the Bombay shops & Establishment Act,1939.

There after the govt. conducted a survey in order to know the improvement in working conditions & it was found that the employee were exploited.

The govt. appointed a committee under the chairmanship of Mr.Shantilal Shah to make an enquiry in the working of the Act.

The committee submitted report on 31st Dec 1947 & suggested certain recommendations in order to improve the working conditions.

On 13th of Oct. 1948 the govt. passed a bill & received Governor General’s assent on 11th Jan. 1949.The Act came into force on the same date & it came to be known as the “Bombay shops & Establishments Act, 1948”

VARIOUS ESTABLISHMENTS UNDER THE ACTShopsCommercial establishmentsResidential hotelsRestaurantsEating housesTheatresOther establishments as specified under

the Act

OBJECT

The main object of the Act is to regulate the working conditions of the people employed in various establishments & also to protect them from exploitation. The Act is a social security legislation.

Its main concern is hygienic & health-aid welfare of the people employed in various establishments.

SCOPE

It extends to whole of Maharashtra.It shall in the first instance come into force in

the local areas specified in the schedule 1.The State Govt. may direct that all or any of

the provisions shall come into force in such other local areas having population of 25,000 or more.

The State Govt. may also direct all or any of the provisions shall come into force in such local areas having population less than 25,000.

APPLICATIONSection 5 deals with the application of the Act

to the other establishments & persons.The establishments of state and central govt.

are exempted from all provisions of the act.The State Govt. by notification in Official

Gazette, declare any establishment or person or class of persons to whom this Act does not apply, to be an establishment or person or class of persons to whom this Act thereof shall be applicable with such modification & from such date as may be specified in the notification.

DEFINITIONS

COMMERCIAL ESTABLISHMENT [SEC. 2(4)]

The organisation to be called as commercial establishment must possess two things:-

A. It must be an organised activity for carrying on business trade or profession.

B. such activity must be carried on in a commercial manner.

Such commercial establishments include any- 1. Legal practitioner 2. medical practitioner 3. Architect 4. Engineer 5. Accountant 6.Tax consultant 7. Other technical or professional consultant 8. All charitable & other trustAny establishment which carries on any trade, profession or

business, whether for the purpose of gain or not.

ESTABLISHMENT [SEC. 2(8)]

Means a shop, commercial establishment, residential hotel, restaurants, theatres, or other places of public amusement to which this Act applies.

The State Govt. is empowered to declare any other establishment to be a establishment for the purpose of this Act by giving notification.

SHOPS [SEC. 2(27)]

Where goods are sold to the customers, sales may be wholesale basis or retail, or services are rendered to a customer.

Such shops include offices, store-rooms, warehouse or work place.

It dose not include factories, commercial establishments, residential hotels, restaurants, theatres & other places of public amusement.

REGISTRATION OF ESTABLISHMENT [SEC. 7-9]

SEC.7 :- Registration of establishment.SEC.8 :- Changes to be communicated to the

inspector.SEC.9 :- Closing of establishment to be

communicated to the inspector.

SEC.7SEC.7(1) :- Within the period specified in sub-

section (4), the employer of every establishment shall send to the Inspector of the local area concerned a statement, in a prescribed form(form A), together with such fees as may be prescribed, containing:

1.The name of the employer & the manager.

2.The postal address of the establishment.3.Name, if any, of the establishment.4.Category of the establishment (shop,

theatre, hotel, etc) 5.Other particulars as may be prescribed.

SEC.7(2) :- On receipt of the statement & fees, the Inspector shall, on being satisfied about correctness of the statement, register the establishment in a prescribed form & issue a registration certificate to the employer that has to be displayed at the establishment.

SEC.7(2A) :- A registration certificate shall be valid upto the end of the year for which it is granted. An application for the renewal shall be submitted not less than 15 days from the date of expiry of the registration & it shall be accompanied by such fees & the renewed registration certificate shall be in such form as may be prescribed.

SEC.7(2AA) :- If the application is submitted after expiry but within 30 days after the date of expiry of the registration certificate , such application shall be accompanied by an additional fees as late fees that is equal to 50% of the fee payable for renewal of a registration.

SEC.7(3) :- In the event of any doubt or difference of opinion between the employer & the Inspector, the Inspector shall refer the matter to the prescribed authority & after proper enquiry it shall decide the category of such establishment.

SEC.7(4) :- Within 30 days from the day mentioned in the application, the statement together with the fees shall be sent to the Inspector.

SEC.8It relates to change in respect of any of the

particulars contained in the statement submitted for getting registration certificate.

If there is any change in the said particulars, the employer has to notify the same to the inspector by applying in the prescribed form (form E) accompanied by the prescribed fee and get the registration form suitably amended.

SEC.9The employer shall within 10 days on closing

his establishment, notify to the Inspector in writing. On receiving such information & being satisfied about its correctness, the Inspector removes such establishment from the register & cancels the registration.

It is further provided that if the Inspector does not receives notice but is otherwise satisfied that the establishment has been closed, he on his own, may cancel the registration.

SHOPS & COMMERCIAL ESTABLISHMENTS [SEC.10 TO 18] Opening & closing hours of shops [sec.(10-11)]

1. No shop dealing in perishable goods such as milk, fruits and other goods notified by the State Govt. shall on any day be opened earlier than 5 a.m. Other than those specified, shall on any day be opened earlier than 7 a.m.

The state Govt. has fixed later opening hours for different classes of shops or for different areas.

Sec.11 states that – 1. Other than those specified below shall on any day

be closed later than 8.30 p.m.2.Shops of pan bidi, cigarettes & other ancillary

articles shall on any day be closed later than 11 p.m.Provided that any customer who was being served or was waiting to be served at such closing hour may be served during the quarter of an hour immediately following such hours. The State Govt. may fix earlier closing hours for different classes of shops or for different areas.

PROHIBITION OF HAWKING SEC.12No person shall carry on in or adjacent to a street or a

public place the sale of any good before the opening & closing hours fixed for the shop dealing in the same type of goods.1. It is provided that nothing in the subsection shall be applied to the sale of newspaper.2. Any person violating the provision shall be liable to have his goods seized by an Inspector.3. The goods seized shall be returned to the person on his depositing of Rs.25 as security for his appearance in the court.4. If fails to deposit, goods seized shall be produced before a Magistrate for temporary custody.5. Where no prosecution is instituted for contravention of above section, the Magistrate shall direct their return to the person for whom they were seized.6. Provision for the Code of Criminal Procedure, shall so far as they may be applicable, apply to the disposal of goods seized under the section.

OPENING & CLOSING HOURS OF COMMERCIAL ESTABLISHMENT SEC.13

No commercial establishment shall be opened earlier than 8.30 a.m. & closed later than 8.30.p.m.

Subject to the provisions, the State Govt. may fix later the opening & closing time of different classes of establishments or for different areas.

DAILY & WEEKLY HOURS OF WORK IN SHOPS & ESTABLISHMENTS SEC.14

No employee shall be allowed to work in any shop or commercial establishment for more than 9 hrs in any day & 48 hrs in a week.

Any employee may be allowed to work for any period in excess of the time limit fixed but such period shall not exceed 6 hrs in any week.

On not more than 6 days in a year which the State Govt. may fix by rules for the purpose of making of accounts, stock taking settlements or other prescribed occasions, any employee may be required to work in access of the period fix but such access period shall not exceed 24 hrs.

INTERVAL FOR REST [SEC.15]If the workers or employees work for a long period

they are fatigued & hence, it is very essential to give them rest at an interval.

The period of work of an employee shall not exceed 5 hrs for continuous work & that they shall be allowed an interval for rest of atleast one hour.

Provided that –1. For employees in a commercial

establishment engaged in any manufacturing process, the interval for rest shall be atleast half an hour.

2.The State Govt. may on an application made to that behalf by the union permit the reduction of the interval for rest to half an hour.

SPREAD-OVER IN SHOPS & COMMERCIAL ESTABLISHMENTS [SEC.16]

In respect to spread over in shops – it shall not exceed 11 hrs in any day.

Provided that if any shop is on any day entirely closed for a continuous period of not less than 3 hrs the spread-over shall not exceed 12 hrs in that day.

It is further provided that where an employee works on any day in accordance with the provisions of sec(14), the spread-over shall not exceed 14 hrs in any such day.

SPREAD-OVER IN COMMERCIAL ESTABLISHMENT [SEC.17]

Not exceed 11 hrs in any day provided that the Govt. may increase the spread-over period subject to certain conditions.

HOLIDAY IN A WEEK IN SHPOS & COMMERCIAL ESTABLISHMENTS [SEC.18]

Every shop & commercial establishment shall remain closed on one day of the week.

Any shop or commercial establishments may remain open on any day notified as close day, if the employer has notified to the Inspector atleast 7 days before doing so.

It shall not be lawful for an employer to call an employee

for work on a day on which such shop or commercial establishment remain closed.

No deductions shall be made from the wages of the employee on account of which the shop or establishment has remain closed.

RESIDENTIAL HOTELS, RESTAURANTS & EATING HOUSES [SEC.19 TO 25]

Sec.19 :- Opening & closing hours of restaurants & eating houses.1. No restaurant or eating houses shall be opened earlier than 5 a.m. & closed later than 12 midnight.2. An employee shall be required to come to work not earlier than 4.30 a.m. & not required to work later than 00.30 a.m.3. Any customer who was being served or waiting to be served at closing hours, he may be served during the quarter of an hour immediately following such hours.4. The State Govt. may fix later opening & earlier closing of such places.

Sec. 20 :- Before the opening & after the closing of such places no goods of the kind sold in such shops shall be sold except for consumption.

Sec.21 :- Daily & weekly hours of work.1. No employee shall be required to work for more than 9 hrs in a day & 48 hrs in a week.2. Any employee may be required to work in excess of the period fixed. If such period does not exceed 3 hrs in a day.

Sec.22 :- Interval for rest.1. The period of continuous work of an employee shall not exceed 5 hrs & no employee shall be required to work more than 5 hrs before he has given an interval of atleast one hour.2. Provided that the state Govt. may reduce the time for interval to half an hour on an application made by an employee or the trade union.

Sec.23 :- Spread over of an employee in hotels, restaurants & eating places shall not exceed 12 hrs in a day.

Sec.24 :- Holiday in a week.1. Every employee shall be given atleast one day in a week as holiday.2. No employer shall call on any employee for work on a day on which such employee has a holiday.3. No deductions shall be made from the wages of an employee on account of any holiday. If an employee is employed on daily wages he shall be paid his daily wages for the holiday

Sec. 25 :- Employer to furnish identity card to employee.

The employer shall furnish every employee an identity card which shall be produced by the employee on demand by an Inspector. Such card shall contain the following & such other particulars as may be prescribed namely :

1. The name of the employer.2. The name, if any, & the postal

address of the establishment.3. The name & age of the employee.4.The hours of work, the interval for

rest & the holiday of the employee.5. The signature (with date) of the

employer or Manager.

THEATRES OR OTHER PLACES OF PUBLIC AMUSEMENT OR ENTERTAINMENT [SEC.(26 TO 31)]

Sec.26 :- Closing hours.No theatre or other places of public amusement or

entertainment shall, on any day, be closed later than 00.30 a.m.

Sec.27 :- No goods of the kind sold in a shop shall be sold in any theatre or other places of public amusement or entertainment except for consumption on premises.

Sec.28 :- Daily & weekly hours of work.1. No employee shall be required to work for more

than 9 hrs in any day & 48 hrs in any week.2. Any employee may be required to work for any

period in excess of the time limit fixed, if such period does not exceed 6 hrs in any week.

Sec.29 :- Interval for rest The period of work of an employee shall be so fixed

that no period of continuous work shall exceed 5 hrs & that no employee shall be required to work for more than 5 hrs before he has had an interval for rest of atleast one hour.

The State Govt. may on application made on behalf of the union may permit the reduction of the time for rest to half an hour.

Sec.30 :- Spread-over. The spread-over of an employee shall not exceed 12

hrs in a day.Sec.31 :- Holidays in a week. 1. Every employee shall be given atleast one day in

a week as holiday.2. No employer shall call on any employee for work on a day on which such employee has a holiday.3. No deduction shall be made from the wages of an

employee on account of any holiday given to him. If an employee is employed on a daily wage he shall be paid his daily wage for the holiday given to him.

LEAVE WITH WAGES [SEC.(35 TO 38)]Sec.35 :- Leave

1. Every employee who has been employed for not less than 3 months in a year, shall for every 60 days on which he has worked during the year be allowed leave for a period of not more than 5 days.

2. Every employee who has worked for not less than 540 days during a year irrespective of the date of commencement of his service, shall be allowed leave, consecutive or otherwise, for a period of not less than 21 days. It is provided further that such leave can be accumulated upto a maximum period of 42 days.3. It should be made clear to every employee that the leave allowed shall be inclusive of the days during the period of such leave, on which a shop or commercial establishment remain closed.

4. If an employee entitled to leave is discharged by his employer before he has been allowed the leave, or if, having applied for & having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him the amount payable under sec.36.

5. If an employee entitled to leave, refused the leave, he may give intimation to the

Inspector. The Inspector shall enter it in a register kept in such form as may be prescribed. The employee shall also send a copy of such intimation to his employer, & thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.

6. Every employee, irrespective of his period of employment, shall be entitled to additional holiday such as 26th Jan, 1st May, 15th Aug & 2nd Oct every year. For holiday on these days he shall be paid wages at rate equivalent to the daily average of his wages provided. If the employee is made to work on all or any of these days, he shall be paid double the amount of the daily average wages.

Sec.36 :- Pay during leave.Every employee shall be paid for

the period of his leave at a rate equivalent to the daily average of his wages for the days on which he actually worked during the preceding 3 months, exclusive of any earnings in respect of over time.

Sec.37 :- Payment when to be made.An employee who has been

allowed leave under sec.35, before his leave begins, be paid half the total number due to him for the period of such leave.

Sec.38 :- Application & amendment of the.

Payment Of Wages Act.

1. The State Govt. may by notification in the Official Gazette, direct the subject to the provisions, to all or any classes of establishment or employees to whom this Act applies.

2. On the application of the provisions of the said Act to any establishment or employee, the Inspector appointed under the Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions.

HEALTH & SAFETY [SEC.(39 TO 42)]Sec.39 :- Cleanliness. The premises of every establishment shall be kept

clean & free from effluvia arising from any drain or other nuisance & shall be cleaned at such times & by such methods as may be prescribed such as lime washing, colour washing, painting, etc.

Rule 12 of the Maharashtra Shops & Establishments Rule of 1961 fixes times & methods for cleaning establishments. It states-

1. All the inside walls of the rooms, ceilings & tops of such rooms & the passages & staircases shall be lime washed or colour washed atleast once in every 2 years.

2. All the beams, doors, windows & other wood works shall be either painted or varnished once in every 7 yrs.

3. The dates on which lime washing, colour washing, painting or varnishing has to be done shall be entered in a register maintained for this purpose.

Sec.40 :- Ventilation.The premises of every establishment shall be

ventilated in accordance with such standards & by such methods as may be prescribed.

Sec.41 :- Lighting1. The premises of every establishment shall

be sufficiently lighted during all working hours.

2. If it appears to an Inspector that the premises is not sufficiently lighted, he may serve on the employer an order in writing specifying the measures to be adopted & requiring them to be carried out before a specified date.

Sec.42 :- Precaution against fire.In every establishment such precaution

against fire shall be taken as may be prescribed by the Govt.

FIRST-AID [SEC.42(A)]where manufacturing process is carried on, there shall

be provided & maintained a first-aid box containing such articles as may be prescribed. A first-aid box shall contain-

1. 3 small sterilized dressings.2. 2 medium size sterilized dressings.3. 2 large size sterilized dressings.4. 2 large size sterilized burn dressings.5. 2 packets sterilized cotton-wool.6. I pair of dressing scissors.7. 1 bottle containing solution of iodine.8. 1 bottle containing solution of salvolatine.9. 1 bottle containing potassium permanganate

crystals. 10. Any antidote for burn.

PUNISHMENTSContravention of certain provisions and offences -

If in any establishment there is any contravention of any section, rule or order for which no specific punishment is provided in this Act, the employer and the manager shall, on conviction, each be punished for each offence with fine which shall not be less than one thousand rupees and which may extend to five thousand rupees

False entries by employer and manager.-If any employer or manager with intent to deceive makes, or causes or allows to be made, in any register, record or notice prescribed to be maintained under the provisions of this Act or the rules made thereunder, an entry which, to his knowledge, is false in any material particular, or wilfully omits or causes or allows to be omitted, shall, on conviction, be punished with fine which shall not be less than one thousand rupees and which may extend to five thousand rupees

Enhanced penalty in certain cases after previous conviction.- If any employer and manager - who have been convicted of any offence are again guilty of an offence involving a contravention of the same provision, they shall each be punished on the second conviction with fine which shall not be less than one thousand rupees and which may extend to five thousand rupees; and if they are again so guilty, they shall each be punished on the third or any subsequent conviction with fine which shall not be less than seven thousand and five hundred rupees and which may extend to ten thousand rupees

Penalty for obstructing Inspector.-Whoever wilfully obstructs an or prevents any employee in an establishment from appearing before or being examined by an Inspector, shall, on conviction, be punished with fine which shall not be less than one thousand rupees and which may extend to five thousand rupees.

BENEFITS TO WORKERS

Wages for overtime work - Where an employee in any establishment to which this Act applies is required to work in excess of the limit of hours of work, he shall be entitles to wages at the rate of twice his ordinary rate of wages.

Right and privileges under other law etc. not affected.- Nothing in this Act shall affect any right or privileges which an employee in any establishment is entitled to at the date this Act comes into force in a local area, under any other law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.

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