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Depth Study On Bombay Shops & Establishments Act,1948

Updated: Aug 27, 2019

ACT TYPE


The Bombay Shops and Establishment Act, 1948 come into the force on 11th January 1948. This Act restricts timing of opening and closing hours of Shops and Commercial Establishment. It keeps control on daily and weekly hours of work of the employees, interval for rest, Spread over. It provide overtime wages, paid holiday and Leave with wages to employees. Generally, it is a STATE LEGISLATION, thus, any citizen who wishes to open a new shop or a commercial establishment wants to commence its business within the jurisdiction of Government of Maharashtra, has to register itself under this act.


APPLICABILITY CONDITIONS


1. The Bombay Shops and Establishment Act,1948 and applies to all local areas specified in Schedule-I of the act.

2. Any establishment to which the Act applies and any other such establishment to which the State Government may extend the provisions of the Act by notification.

3. If a shop or commercial establishment is not connected with the manufacturing process of the factory the provisions of the Act will apply to it. Otherwise the provisions of the Factories Act will apply to it.

4. Section 38 of the Bombay Shops and Establishments Act gives power to the State Government to extend the application of the Payment of Wages Act to any class of establishments or any glass of employees to which the Bombay Shops and Establishments Act applies. Accordingly the State Government has extended the application of the Payment of Wages Act to establishments situated in Greater Bombay, Thane, Poona, Sholapur, Kolhapur and Nagpur.

5. Section 38-A of the Bombay Shops and Establishments Act, the provisions of the Workmen's Compensation Act are application to employees of According to Section 38-A of the Bombay Shops and Establishments Act, the provisions of the Workmen's Compensation Act are application to employees of establishments to which the Bombay Shops and Establishments Act applies.

6. An employee working in a clerical capacity in an establishment to which the Bombay Shops and Establishments Act applies is entitled to claim compensation under the Workmen's Compensation Act. By virtue of Section 38-A of the Bombay Shops and Establishments Act he is deemed to be a workman within the meaning of the Workmen's Compensation Act and, therefore, it is not necessary for him to prove that he is a workman under the said Act.

7. Section 38-B of the Bombay Shops and Establishments Act the provisions of the Industrial Employment (Standing Orders) Act, in its application to the State of Maharashtra, are applicable to all establishments wherein fifty or more employees are employed and to which the Bombay Shops and Establishments Act applies.

8. Section 38-C of the Bombay Shops and Establishments Act as well as the proviso to sub-section (1) of Section 2 of the Maternity Benefit Act give power to the State Government to extend the application of the Maternity Benefit Act to women employees in any establishment or class of establishments. Accordingly the State Government has extended the application of the Maternity Benefit Act to all shops, commercial establishments, residential hotels, restaurants and eating houses to which the Bombay Shops and Establishments Act applies but the Employees State Insurance Act does not apply.

9. If any shop or commercial establishment situate within the precincts of a factory is not connected with the manufacturing process of the factory, it will be governed by the Shops and Establishments Act. But the State Government can apply all or any of the provisions of the Factories Act to such shop or commercial establishment.


COMPLIANCES UNDER THE ACT


1. During the course of enforcement the inspectors have to visit various establishments and to detect breaches of the provisions of the Act and rules framed there under and to launch prosecutions on defaulters accordingly.

2. The major breaches of the provisions of the Act consist of non-registration, non-renewal, opening of establishment before prescribed hours, closing of establishments later than prescribed hours, exceeding total hours, continuous work without rest interval, spread over, not granting privilege leave, keeping establishment open on weekly closed day, calling employees for work on their weekly offs, employing female employees after prescribed hours, employing child labour, not providing Identity Cards to certain class of employees, not paying wages as per rates prescribed under Minimum Wages Act. Etc

3. The major of breaches of the provisions of rule are of the nature of procedural lapses. Viz. Not maintaining prescribed register of employment, leave register, visit book, lime washing register, not providing leave book to the employees or not making suitable entries therein, not producing requisite record register, notices for inspection on demand, not displaying name board in Marathi in Devnagari Script etc.


IMPORTANT CITATIONS


1. Tikka Ram & Sons Ltd. v Their Workmen, (1960) I LW 514 (SC).

2. J. K. Cotton spinning and Weaving Co. Ltd. v Its Workmen, (1965) I LLJ 153 (SC).

3. Tata Oil Mills Co. Ltd. v Lts Workmen, AIR 1965 SC 155.

4. Bata Shoe Co. (P) Ltd. v D. N. Ganguly (1961) I LLJ 303 (SC).

5. In Indian Iron & Steel Co. Ltd. v Their Workmen [(1958)I LLJ 260 (SC).


LIST OF AMENDMENTS AND MODIFICATIONS


1. Amended by Bom.17 of 1949.

2. Amended by Bom.53 of 1949.

3. Modified by the adaption of law order, 1950.

4. Amended by Bom.9 of 1951.

5. Amended by Bom.28 of 1952.

6. Modified by the Bombay adaptation of laws (state and concurrent subjects order, 1956).

7. Modified by the Maharashtra adaptation of laws (state and concurrent subjects order, 1960).

8. Amended by Mah.26 of 1961.

9. Amended by Mah.64 of 1977.

10. Amended by Mah.35 of 1986.



SUMMARY


Bombay Shops and Establishment Act ,1948, was made to regulate conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, other places of public entertainment and other establishments. The premises governed by the Act are shops, commercial establishments, residential hotels, clubs, restaurants, eating houses, theatres and other places of public amusement or entertainment.

A place where services are sold on retail basis is also a shop. Therefore, an establishment engaged in arranging for musical performance on occasions such as marriages etc., is a shop.

The general rule about the opening hours of shops under the act is that they are not allowed to be opened earlier than 7 a.m. But shops selling goods like milk, vegetable, fish etc., are allowed to be opened from 5 a.m. onward.

Whereas the general rule about the closing hours of shops under the act is that they must be closed at the latest by 8.30 p.m. But shops selling goods like pan, bidi, etc., are allowed to be kept open upto 11 p.m.

Commercial establishment are not allowed to be opened earlier than 8.30 a.m. and closed later than 8.30 p.m. in a day.

An employee in a shop or commercial establishment cannot be required or allowed to work for more than 9 hours in a day and 48 hours in a week. He must be allowed an interval of rest of at least one hour after five hours of continuous work. His spread-over cannot exceed 11 hours in a day.

Every shop and commercial establishment must 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.

A restaurant or eating house cannot be opened earlier than 5 a.m. and closed later than 12 midnight for service. An employee in a restaurant or eating house may be required to commence work from 4.30 a.m. onwards. He cannot be required to work after 00.30 a.m.

An employee in a residential hotel, restaurant or eating house cannot be required or allowed to work for more than 9 hours in a day and 48 hours in a week. He must be allowed an interval of rest of at least one hour after five hours of continuous work.

A theatre or other place of public amusement or establishment must be closed at the latest by 00.30 a.m. An employee in a theatre or other place of public amusement or entertainment cannot be required or allowed to work for more than 9 hours in a day or 48 hours in a week. He must be allowed an interval of rest of at least one hour after five hours of continuous work. His spread-over cannot exceed 11 hours in a day. He must be given at least one day in a week as a holiday. No deduction can be made from his wages on account of such holiday.

The employment of children is totally prohibited. Anybody who is below the age of 15 years is considered to be a child. No child can be required or allowed to work whether as an employee or otherwise in any establishment.

Restrictions are placed on the closing hours for women as well as on giving then dangerous work. Thus no woman can be required or allowed to work, whether as an employee or otherwise, in any establishment after 9.30 p.m. In other words, women cannot be required or allowed to attend work late in the evening. Similarly no woman working in any establishment, whether as an employee or otherwise, can be required or allowed to perform work involving danger to her life, health or morals.

Anybody who is between the age of 15 years and 17 years is considered to be a young person. No young person can be required or allowed to work, whether as an employee or otherwise, in any establishment:

After 7.00 p.m.; for more than 6 hours in any day; and if the work involves danger to life, health or morals.

An Inspector appointed under the Act has power:

to enter any place which is an establishment; to make examination of the premises, registers, records and notices; to take evidence of any person; if he suspects that an employer has committed an offence, to seize the necessary registers, records or other documents and retain them for a reasonable period for examination thereof or for prosecution of the employer.

When any employee is required to work overtime, i.e. in excess of the limit of hours of work, he must be paid for a work at double the rate of his ordinary wages. The limit of hours of work for the purpose of calculating overtime is 9 hours in any day and 48 hours in any week.

There is a large number of offences under the Act and the majority of them are punishable with fine which would be not less than fifty rupees and which may extend to five hundred rupees.


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