West Bengal Shops and Establishment Act, 1963

What is West Bengal Shops and Establishment Act, 1963

• The West Bengal Shops and Establishments Act,1963 has been enacted primarily with the object of regulating holidays, hours of the work, payment of wages and leave of persons that are employed in shops and establishments.
• This Act seeks to impose certain obligations upon the owner of a shop or an establishment to protect the workers employed and to secure for them employment in conditions conducive to their welfare of the persons employed in shops and establishments in Calcutta and other notified areas of West Bengal.
• The Act also makes provisions regarding employment of women and young, annual leave with wages, overtime, specific working hours, prescribed opening and closing hours of the Shops & Establishments. The Act is applicable to the whole of West Bengal and covers all the areas and the classes of shops and establishments in Calcutta.

Applicability

Section 2(2), 2(5), 2(6) of the Act provides that the Act shall apply to certain shops and establishments as stated thereunder. Shops are defined as premises where goods are sold either by retail or wholesale or where services are rendered to customers and includes an office, a store-room, godown, warehouse or a workplace. Establishments are defined as shops and such establishments include a commercial establishment or an establishment for public entertainment or amusement.

A COMMERCIAL ESTABLISHMENT MEANS AND INCLUDES,

• A commercial or trading or banking or insurance establishment;
• An establishment or administrative service in which persons employed or mainly engaged in office work;
• A hotel, boarding, restaurant or eating house, a café or refreshment house;
• A theater, cinema or any other place of public amusement or entertainment.

Non-applicability of the Act

SECTION 4 OF THE ACT PROVIDES THAT THE ACT SHALL NOT BE APPLICABLE TO CERTAIN ESTABLISHMENTS WHICH ARE AS FOLLOWS

• Offices of or under the Central or State Government, the Reserve Bank of India, any railway administration or any local authority;
• Any railway service, airways service, water transport service, tramway or motor service, any system of public controversy or sanitation or any industry, business or undertaking which supplies power, light or water to the public;
• Institutions for the treatment or care of the sick, infirm, destitute or mentally unfit;
• Shops or stalls in any public fair or bazar held for a charitable purpose;
• Stalls and refreshment rooms at railway stations, docks, wharves or airports.

Employment of Young Persons and Children

Many civilized nations restrict the employment of children in shops or establishments. Workers as young as five years of age may be found in some of these places working without an adequate meal, intervals or rest days. Therefore, to curb these and other evil practices of employing children legislative measures have been adopted. According to Section 9, a child who has not completed the age of twelve years shall be employed in any shop or establishment.

Working Hours

Section 7 and Section 8 lays down further restrictions on the employment of persons in a shop or establishments. These restrictions stated below relates to the working hours for the workers:

• An adult person, whether male or female employed in an establishment shall not be employed or permitted to work for than eight hours and half in any day or more than forty eight hours in any week.
• An adult person is not permitted to work for more than five hours and a half unless he is allowed for rest for at least one hour during that day.
• The daily working hours should be adjusted in such manner that they are not spread over more than ten hours and half on any day. This limit may be extended up to 12 hours by the Chief Inspector for reasons to be specified in writing.
• A young person employed in an establishment shall not be employed or permitted to work for more than seven hours in any day or for more than forty hours in any one week.
• A young person is not permitted to work for more than four hours before he had a rest for at least one hour.

Payment of Wages

Wages means all the enumerations capable of being expressed in terms of money be payable to a person employed in respect of his employment.  Every owner or employer shall be responsible for the payment to persons employed by him of all the wages required to be paid by him under the Act.  Section 14 of the Act states that the wages of every person employed shall be paid before the expiry of the tenth day, after the last day of the wage period in respect of which wages are payable.

Where the employment of any person is terminated by or on behalf of the employer the wages earned by him shall be paid for the period of privilege leave due to his credit at the time of such termination.

Section 13 provides that when an employee works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or part of an hour in excess which should be calculated at twice the ordinary rate of wage payable to him in such manner as may be prescribed.

Where any deduction has been made from the wages of any person and the payment has not been made within a period of six months, he can make an application to such officer or authority as notified by the State Government. Provided that the officer shall give the person against whom the application is made a reasonable opportunity of being heard after making further enquiry. The payment of compensation to the applicant shall not be less than ten times the amount deducted from his wages but should not exceed ten rupees along with the amount deducted from the wages.  However, no compensation shall be made in case of the delay of the payment or if the delay was due to the following circumstances:

• A bona fide error or a bona fide dispute, or
• The occurrence of an emergency, or
• The failure of the applicant to apply for the payment, or
• The existence of exceptional circumstances.

Basis of Leave

This Act provides for the provisions of leave for the employees. Leave is calculated for the calendar year January to December. Therefore, all the employees are entitled to leave and such leave cannot be less than that mentioned in the Act. There are different types of leave which are as follows:-

• Privileged Leave: All the employees of the shop or an establishment are entitled to fourteen privilege leave for every completed year of service. However, such leave can be carried forward subject to a maximum of twenty-eight days.
• Sick Leave: All the employees of the shop or an establishment are entitled to seven working days of sick leave. However, such sick leave can be carried forward subject to a maximum of fifty-six days. Where in case of medical absent of more than three days, an employee is required to submit a medical certificate from qualified physician practitioner.
• Casual Leave: All the employees are entitled to ten working days of casual leave. Casual Leave cannot be carried forward.
• Maternity Leave: Every women employed in the shop or establishment is entitled to such leave in accordance with such rules as may be prescribed.

Powers of the Inspector

Inspectors have been granted their powers under Section 20 of the West Bengal Shops and Establishments Act, 1963.  An inspector can use these powers during the course of an inspection. These powers include:

• The right of entry into any place where the inspector believes there is a shop or an establishment for inspecting any certificate of registration, registers, and documents or noticed required to be displayed, maintained or kept under this Act.
• In relation to any inspection, an inspector may examine any person whom he finds in such premises or places.
• An inspector may seize any document, records, and notices if they consider relevant in respect of an offence punishable under this Act which he has reasons to believe that has been committed by the shop-keeper or employer after taking approval from the superior officer.

Penalties and Procedures

Section 21 of the Act prescribes penalties for the contravention of the provisions of the Act. If there is any contravention of any of the provisions of this Act or any rules made thereunder, the occupier or the owner shall be guilty of an offence and punishable with fine which may extend to five hundred rupees for the first offence, with further fine of one thousand rupees and shall also be punishable with imprisonment for term which may extend to three months, or with both, after the first offence.

No cognizance shall be taken of any conviction made more than two years before the commission of the offence for which the person is subsequently convicted.

According to Section 22 of the Act, no court inferior to a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act.  The Court shall not take cognizance of an offence punishable under this act except upon the complaint made by an Inspector. Such complaints shall be punishable with the previous sanction of the State Government.

Compliances under the Act

THE ESTABLISHMENT OR SHOP MUST ENSURE THE FOLLOWING COMPLIANCES UNDER THE ACT. THESE COMPLIANCES ARE NOT EXHAUSTIVE BUT ILLUSTRATIVE.

• The establishment has obtained permission from the Department of Labor.
• The establishment has given notice to the registered authority intimating the occupancy or using a premises as a shop/establishment with effect from….
• The establishment has taken adequate precaution and care for the maintenance of the health and safety of the persons employed.
• The establishment had duly complied with the provisions relating to the hours of work –per day and week, instructions on opening and closing hours, national and religious holidays, overtime work and guidelines for rest interval of the works during the financial year.
• The establishment had duly complied with the provisions relating to the employment of children, young persons and special provisions for employment of women, maternity leaves, sickness and casual leaves, appointment, and termination of services.
• The Establishment did not make any unauthorized deduction from the wages of any of its employees.
• The establishment provides for the rights and obligations of employers as well as employees.
• The establishment provides for the maintenance of statutory registers and records and display of notices.