BPSC 64TH MAINS LSW OPTIONAL NOTES

PAYMENT OF WAGES ACT 1936 OBJECT OF THE ACT   The Payment of Wages Act regulates the payment of wages to certain classes of persons employed in industry and its    importance cannot be under-estimated. The Act guarantees payment of wages on time and without any deductions except those authorised under the Act. The Act provides for the responsibility for payment of wages, fixation of wage period, time and mode of payment of wages, permissible deduction as also casts upon the employer a duty to seek the approval of the Government for the acts and permission for which fines may be imposed by him and also sealing of the fines, and also for a machinery to hear and decide complaints regarding the deduction from wages or in delay in payment of wages, penalty for malicious and vexatious claims. The Act does not apply to persons whose wage is Rs. 10,000 or more per month. The Act also provides to the effect that a worker cannot contract out of any right conferred upon him under the Act.  DEFINITIONS  "employed person" [sec 2 (i)] includes the legal representative of a deceased employed person; "employer"[sec 2 (ia)] includes the legal representative of a deceased employer; "industrial or other establishment"[sec 2 (i1)] means any -   (a) tramway service or motor transport service engaged in carrying passengers or goods or both by road for hire or reward;  (aa) air transport service other than such service belonging to or exclusively employed in the military naval or air forces of the Union or the Civil Aviation Department of the Government of India;  (b) Dock wharf or jetty;  (c) inland vessel mechanically propelled;  (d) mine quarry or oil-field;  (e) plantation; (f) workshop or other establishment in which articles are produced adapted or manufactured with a view to their use transport or sale; (g) establishment in which any work relating to the construction development or maintenance of buildings roads bridges or canals or relating to operations connected with navigation irrigation or to the supply of water or relating to the generation transmission and distribution of electricity or any other form of power is being carried on; (h) any other establishment or class of establishments which the Central Government or a State Government may having regard to the nature thereof the need for protection of persons employed therein and other relevant circumstances specify by notification in the Official Gazette. "wages" [sec 2 (iv)] means all remuneration (whether by way of salary allowances or otherwise) expressed in terms of money or capable of being so expressed which would if the terms of employment express or implied were fulfilled by payable to a person employed in respect of his employment or of work done in such employment and includes -  (a) any remuneration payable under any award or settlement between the parties or order of a court; (b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period; (c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name); (d) any sum which by reason of the termination of employment of the person employed is payable under any law   contract or instrument which provides for the payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made; (e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force, but does not include - (1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court; (2) the value of any house-accommodation or of the supply of light water medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government; (3) any contribution paid by the employer to any pension or provident fund and the interest which may have accrued thereon; (4) any travelling allowance or the value of any travelling concession; (5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or (6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d). Responsibility for payment of wages [Section 3].  Every employer shall be responsible for the payment to persons employed by him of all wages required to be paid.  ·       In the case of the factory, manager of that factory shall be liable to pay the wages to employees employed by him.  ·       In the case of industrial or other establishments, persons responsibility of supervision shall be liable for the payment of the wage to employees employed by him.  ·       In the case of railways, a person nominated by the railway administration for specified area shall be liable for the payment of the wage to the employees.  ·       In the case of contractor, a person designated by such contractor who is directly under his charge shall be liable for the payment of the wage to the employees. If he fails to pay wages to employees, person who employed the employees shall be liable for the payment of the wages .  [Sec 5 (3)]  With the consultation of the central government, state government having power and can change the person responsible for the payment of the wages in Railways, or person responsible to daily-rated workers in the Public Works Department of the Central Government or the State Government. Fixation of wage-periods. [Section 4]  Every person responsible for the payment of wages under section 3 shall fix periods in respect of which such wages shall be payable. No wage-period shall exceed one month. That means wage can be paid on daily, weekly, fortnightly (for every 15 days) and monthly only. Wage period for payment of wages to employees by employer should not exceed 30days i.e. one month according to this act. But wages cannot be paid for quarterly, half yearly or once in a year. Time Of Payment Of Wages. [Section 5]  ·       In railway factory or industrial or other establishment, if there are less than 1000 employees, wages of employees should be paid before the expiry of the 7th day after the last day of the wage period. (ex:- wages should be paid on starting of present month within 7 days i.e. before 7th date if wage is paid on 1st in previous month )  ·       In other railway factory or industrial or other establishment, if there are more than 1000 employees, wages of employees should be paid before the expiry of the 10th day after the last day of the wage period. (ex:- wages should be paid on starting of present month within 10 days i.e. before 10th date if wage is paid on 1st in previous month )  ·       For employees of port area, mines, wharf or jetty, wages of employees should be paid before the expiry of the 7h day after the last day of the wage period.  [Sec 5 (2)]  If the employee is terminated or removed for the employment by the employer the wage of that employee should be paid within 2 days from the day on which he was removed or terminated. Illustration: if the employee was terminated or removed from the employment by the employer on 10th of this month, his wage should be paid within 2 days from the day on which he was removed or terminated, i.e. his/her wage should be paid by 12th date of this month and this date should not exceed. [Sec 5 (4)]  Except the payment of wage of the terminated employee, all the wages of the employees should be paid by their employer on the working day only.  Section 6.  (THE PAYMENT OF WAGES (AMENDMENT) ACT, 2017) All wages shall be paid in current coin or currency notes or by cheque or by crediting the wages in the bank account of the employee: Provided that the appropriate Government may, by notification in the Official Gazette,  specify  the  industrial  or  other  establishment,  the  employer  of  which  shall pay  to  every  person  employed  in  such  industrial  or  other  establishment,  the  wages only by cheque or by crediting the wages in his bank account." 7. DEDUCTIONS WHICH MAY BE MADE FROM WAGES.  At the time of payment of the wage to employees, employer should make deductions according to this act only. Employer should not make deductions as he like. Every amount paid by the employee to his employer is called as deductions. The following are not called as the deduction  ·       Stoppage of the increment of employee.  ·       Stoppage of the promotion of the employee.  ·       Stoppage of the incentive lack of performance by employee.  ·       Demotion of the employee  ·       Suspension of the employee  The above said actions taken by the employer should have good and sufficient cause. Deductions [Sec 7 (2)]  Deduction made by the employer should be made in accordance with this act only. The following are said to be the deductions and which are acceptable according to this act. ·       Fines,  ·       Deductions for absence from duty,  ·       Deductions for damage to or loss of goods made by the employee due to his negligence,  ·       Deductions for house-accommodation supplied by the employer or by government or any housing board,  ·       Deductions for such amenities and services supplied by the employer as the State Government or any officer,  ·       Deductions for recovery of advances connected with the excess payments or advance payments of wages,  ·       Deductions for recovery of loans made from welfare labour fund,  ·       Deductions for recovery of loans granted for house-building or other purposes,  ·       Deductions of income-tax payable by the employed person,  ·       Deductions by order of a court,  ·       Deduction for payment of provident fund,  ·       Deductions for payments to co-operative societies approved by the State Government,  ·       Deductions for payments to a scheme of insurance maintained by the Indian Post Office  ·       Deductions made if any payment of any premium on his life insurance policy to the Life Insurance Corporation with the acceptance of employee,  ·       Deduction made if any contribution made as fund to trade union with the acceptance of employee,  ·       Deductions, for payment of insurance premia on Fidelity Guarantee Bonds with the acceptance of employee,  ·       Deductions for recovery of losses sustained by a railway administration on account of acceptance by the employee of fake currency,  ·       Deductions for recovery of losses sustained by a railway administration on account of failure by the employee in collections of fares and charges,  ·       Deduction made if any contribution to the Prime Minister’s National Relief Fund with the acceptance of employee,  ·       Deductions for contributions to any insurance scheme framed by the Central Government for the benefit of its employees with the acceptance of employee,  Limit for deductions [Sec 7 (3)]  The total amount of deductions from wages of employees should not exceed 50%, but only in case of payments to co-operative societies, deduction from wages of employee can be made up to 75%. FINES. [Sec 8] Fine should be imposed by the employer on employee with the approval of the state government or prescribed authority. Employer should follow the rules mentioned below for and before imposing of fine on the employee.  1.    Notice board of fines on employee should be displayed in the work premises and it should contain activities that should not be made by employee.  2.    Fine should not be imposed on the employee until he gives the explanation and cause for the act or omission he made.  3.    Total amount of fine should not exceed 3% of his wage.  4.    Fine should not be imposed on any employee who is under the age of 15 years.  5.    Fine should be imposed for one time only on the wage of the employee for the act or omission he made.  6.    Fines should not be recovered in the way of installments from the employee.  7.    Fine should be recovered within 60 days from the date on which fine were imposed.  8.    Fine should be imposed on day act or omission made by the employee.  9.    All fines collected from the employee should be credited to common fund and utilize for the benefit of the employees.  DEDUCTIONS FOR ABSENCE FROM DUTY. [Sec 9]  ·       Deductions can be made by the employer for the absence of duty by the employee for one day or for any period.  ·       The amount deducted for absence from the duty should not exceed a sum which bears the same relationship to the wage payable in respect of the wage-period as this period of absence does to such wage-period. (Example: if the salary of an employee is 6000/- per month and he was absent for duty for one month. Deduction from the salary for absence of duty should not exceed 6000/-)  ·       Employee present for the work place and refuses to work without proper reason shall be deemed to be absent from duty.  ·       If 10 or more persons together absent for the duty without any notice and without reasonable cause, employer can make 8 day of wages as deduction from their wage.  DEDUCTIONS FOR DAMAGE OR LOSS. [Sec 10]  Employer should give an opportunity to the employee to explain the reason and cause for the damage or loss happened and deductions made by employer from the employee wage should not exceed the value or amount of damage or loss made by the employee. [Sec 10 (2)] All such deduction and all realizations thereof shall be recorded in a register to be kept by the person responsible for the payment of wages under section 3 in such form as may be prescribed.  DEDUCTIONS FOR SERVICES RENDERED. [Sec 11]  House-accommodation amenity or service provided by the employer should be accepted by the employee, than only the employer can make deduction from the wage of the employee. Deduction should not exceed an amount equivalent to the value of the house-accommodation amenity or service supplied. DEDUCTIONS FOR RECOVERY OF ADVANCES. [Sec 12]  In case of advance paid to the employees by the employer before employment began, such advance should be recovered by the employer from the first payment of the wages /salary to the employee. But employer should not recover the advance given for the travelling expense for the employee. DEDUCTIONS FOR RECOVERY OF LOANS. [Sec 12A]  Deductions for recovery of loans granted for house-building or other purposes shall be subject to any rules made by the State Government regulating the extent to which such loans may be granted and the rate of interest payable thereon. DEDUCTIONS FOR PAYMENTS TO CO-OPERATIVE SOCIETIES AND INSURANCE SCHEMES. [Sec 13]  Deductions for payments to co-operative societies or deductions for payments to scheme of insurance maintained by the Indian Post Office or with employee acceptance deductions made for payment of any premium on his life insurance policy to the Life Insurance Corporation shall be subject to such conditions as the State Government may impose. MAINTENANCE OF REGISTERS AND RECORDS. [Sec 13A]  Every employer should maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. Every register and record required to be maintained and preserved for a period of three years after the date of the last entry made therein. It means for every transaction made within employer and employee should have 3 years of record. INSPECTORS  Inspectors. [Sec 14] The state government may appoint an inspector for purpose of this act. Every Inspector shall be deemed to be a public servant within the meaning of the Indian Penal Code, 1860 [Sec 14(5)]. The inspector of this act is having powers mentioned below  ·       Inspector can make enquiry and examination whether the employers are properly obeying the rules mentioned under this act.  ·       Inspector with such assistance, if any, as he thinks fit, enter, inspect and search any premises of any railway, factory or industrial or other establishment at any reasonable time for the purpose of carrying out the objects of this Act.  ·       Inspector can supervise the payment of wages to persons employed upon any railway or in any factory or industrial or other establishment.  ·       Seize or take copies of such registers or documents or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by an employer.  Facilities to be afforded to Inspectors. [Sec 14A]  Every employer shall afford an Inspector all reasonable facilities for making any entry, inspection, supervision, examination or inquiry under this Act. CLAIMS ARISING OUT OF DEDUCTIONS FROM WAGES OR DELAY IN PAYMENT OF WAGES AND PENALTY FOR MALICIOUS OR VEXATIOUS CLAIMS. [Sec 15] (2005 amendments)  To hear and decide all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid, including all matters, incidental to such claims, there will be a officer mentioned below appointed by the appropriate government. (a) any Commissioner for Workmen's Compensation; or (b) any officer of the Central Government exercising functions as – (i) Regional Labour Commissioner; or (ii) Assistant Labour Commissioner with at least two years' experience; or (c) any officer of the State Government not below the rank of Assistant Labour Commissioner with at least two years' experience; or (d) a presiding officer of any Labour Court or Industrial Tribunal, constituted under the Industrial Disputes Act, 1947 (14 of 1947) or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State; or (e) any other officer with experience as a Judge of a Civil Court or a Judicial Magistrate, as the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area, including all matters incidental to such claims: Appropriate Government considers it necessary so to do, it may appoint more than one authority for any specified area and may, by general or special order, provide for the distribution or allocation of work to be performed by them under this Act. [Sec 15(2)]  If any employer does opposite to the provisions of this act, any unreasonable deduction has been made from the wages of an employed person, or any payment of wages has been delayed, in such case any lawyer or any Inspector under this Act or official of a registered trade union authorized to write an application to the authority appointed by government for direction of payment of wages according to this act. Every such application shall be presented within 12 months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made. Time of making an application can be accepted if there is reasonable cause. [Sec 15(3)]  After receiving of the application the authority shall give an opportunity to hear the applicant and the employer or other person responsible for the payment of wages and conducts the enquiry if necessary. It is found that there is mistake with employer; authority shall order the employer for payment of the wage or refund to the employee of the amount deducted unreasonably or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit. There will not be any compensation payable by employer if there is a reasonable and genuine cause in delay in the payment of wages. POWERS OF AUTHORITIES APPOINTED. [Section 18]  Taking evidence and of enforcing the attendance of witnesses and compelling the production of documents. SINGLE APPLICATION IN RESPECT OF CLAIMS FROM UNPAID GROUP. [Section 16] There is no necessity of many applications if there are many employees whose wages has not been paid. Such all employees can make one application to the authority for payment of wages according to this act. APPEAL. [Section 17]  In the following situation the parties who ever dissatisfied can appeal to the district court  ·       If the application dismissed by above authorities  ·       Employer imposed with compensation exceeding 300/- rupees by the authorities.  ·       If the amount exceeding 25/- rupees withheld by the employer to single unpaid employee. 50/- in case of many unpaid employees  PENALTY FOR OFFENCES UNDER THE ACT. [Section 20] (2005 amendments)  Reasons  penalty  ·       Delay in payment of wages  ·       Un reasonable deductions  ·       Excess deduction for absence of duty  ·       Excess deduction for damage or loss to employer  ·       Excess deduction for house-accommodation amenity or service  Punishable with fine which shall not be less than 1000/- rupees but which may extend to 7500/- rupees.  ·           If Wage period exceed one month.  ·       Failure in payments of wages on a working day.  ·       Wages not paid in form of current coin or currency notes or in both.  ·       Failure to maintain record for collected fines from employee.  ·       Improper usage of fine collected from employees.  ·       Failure of employee to display notice containing such abstracts of this Act and of the rules made.    punishable with fine which may extend 3000/- rupees  ·       Whoever obstructs an Inspector in the discharge of his duties under this Act  ·       Whoever willfully refuses to produce on the demand of an Inspector any register or other document.  ·       Whoever refuses or willfully neglects to afford an Inspector any reasonable facility for making any entry, inspection, examination, supervision, or inquiry authorized by or under this Act  punishable with fine which shall not be less than 1000/- rupees but which may extend to 7500/- rupees  Whoever repeats the same offence committed before. Imprisonment for a term which shall not be less than one month but which may extend to 6 months and fine which shall not be less than 3750/- rupees but which may extend 20500/-rupees. PAYMENT OF UNDISBURSED WAGES IN CASE OF DEATH OF EMPLOYED PERSON. [Sec 25A]  ·       Paid by the employer to the person nominated by the employee.  ·       Wage deposited by the employer with the prescribed authority, the employer shall be discharged of his liability to pay those wages.  ·       Where no such nomination has been made or where for any reasons such amounts cannot be paid to the person so nominated, be deposited with the prescribed authority who shall deal with the amounts so deposited in such manner as may be prescribed.

BPSC 64TH MAINS

LSW OPTIONAL NOTES

Maternity Benefits Act, 1961

Maternity Benefits Act, 1961 in India.

The Maternity Benefits Act, 1961 aims at regulating employment of women employees all over the country. The act provides 12 weeks as the maximum period for which any working woman shall be entitled to maternity benefit. She can avail this benefit as 6 weeks up to and including the day of her delivery and 6 weeks immediately following the day of her delivery. (Section 4)

Applicability of the Act

The Act applies to:

• Every factory, mine or plantation (including those belonging to Government),
• An establishment engaged in the exhibition of equestrian, acrobatic and other performances, irrespective of the number of employees, and
• Every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months.

Eligibility & Conditions for Claiming Benefits

The Act lays down that any women employed, whether directly or through any agency, for wages in any establishment is eligible to claim maternity benefits if she is expecting a child and has worked for her employer for at least 80 days in the 12 months immediately preceding the date of her expected delivery. (Section 5)

A woman looking forward to maternity benefits could ask the employer to give her light work for a month. Such request should be made atleast 10 weeks before the date of her expected delivery. At that time she needs to produce a certificate confirming her pregnancy. (Section 5)

Also she needs to give a written notice to the employer about 7 weeks before the date of her delivery regarding her absence period pre and post delivery. (Section 5).

Cash Benefits

• Leave with average pay for 6 weeks before and 6 weeks after the delivery.
• Medical bonus of at least Rs. 1000 extending to Rs. 20000 if the employer is unable to provide free medical care to the women employee.(Section 8) (Amended on 15-04-2008)^[2]
• Additional leave with pay for upto 1 month on production of proof, revealing illness due to pregnancy, delivery, miscarriage, or premature birth. (Section 10)
• In case of miscarriage, 6 weeks leave with average pay from the date of miscarriage. (Section 9)

Non Cash Benefits/Privilege

• Light work for 10 weeks before the date of expected pregnancy if she asks for it.
• Two nursing breaks in the course of her daily work until the child attain age of 15 months. (Section 11)
• In case of tubectomy operation leave with wages for 2 weeks. (Section 9A)
• No discharge or dismissal while being on maternity leave. (Section 12)
• No change to her disadvantage in any of the conditions of her employment while on maternity leave. (Section 12)
• Pregnant woman discharged or dismissed may still claim maternity benefit from the employer. (Section 12)

Women employee who is dismissed on grounds of gross misconduct loses her rights under the Act for Maternity Benefit.

Miscarriage and Tubectomy Operations

Leave with wages at the rate of maternity benefit, for a period of 6 weeks for miscarriage and 2 weeks for tubectomy operation. (Section 9 & 13)

Illness Arising Out of Pregnancy

A woman suffering from illness on account of miscarriage, medical termination of pregnancy, delivery, premature birth is entitled for further leave for 1 month in addition to the leave with wages at the rate of maternity benefit. (Section 10)

Prohibition on Employment during Certain Periods

The Act prohibits an employer from knowingly employing a woman, or any women from working, 6 weeks immediately following the day of her delivery or miscarriage. (Section 4)

Discharge from Employment

The Act prohibits dismissal or discharge or variation in conditions of service to the disadvantage of any pregnant women, while she is absent due to reason under the Act. (Section 12)

She can claim maternity benefit or medical bonus, even if discharged or dismissed during pregnancy. This shall not be applicable in case of dismissal for gross misconduct. (Section 12)

Benefits in Case of Death of a Pregnant Employee

In such case, the maternity benefit shall be paid only for the days up to and including the day of death. (Section 7)

The employer should pay such benefit or amount to the person nominated by the woman and in case there is no such nominee, then her legal representative. (Section 7)

Offences and Penalties on Employers

The Act also imposes punishment/penalty if any employer fails to pay maternity benefit to an eligible women or discharges or dismisses the woman during or on account of her absence from work.

The salient features of the Maternity Benefit (Amendment) Bill, 2016 are as follows:—

(i) increase the maximum period of maternity benefit from the existing twelve weeks to twenty-six weeks,

in case of women who have less than two surviving children and in other cases, the existing period of twelve weeks maternity benefit shall continue;

(ii) to extend the maternity benefits to a "commissioning mother" and "adopting mother" and they shall be entitled to twelve weeks maternity
benefit from the date the child is handed over;

(iii) to facilitate "work from home" to a mother by inserting an enabling  provision;

(iv) to make it mandatory in respect of establishment having fifty or more employees, to have the facility of creche either individually or as a shared common facility within such distance as may be prescribed by rules and also to allow four visits to the creche by the woman daily, including the interval for rest allowed to her;

(v) every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment about the benefits available under the Act.

THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017
NO .6 OF 2017
The amendment  extends the period of maternity leave from 12 to 26 weeks. However, this increase in maternity leave does not apply to women with two or more surviving children. Such women will be entitled to 12 weeks of leave. 

The government has stated that the amendment extend the period of maternity leave to 26 weeks to ensure maternal care to the child during early childhood. It has also noted that such early care is essential for the growth and development of the child.13 This objective could be defeated if sufficient maternity leave is not given in the case of a third born child. Currently under the 1961 Act, the minimum maternity leave of 12 weeks applies in all cases, regardless of the number of previous children. 

BPSC 64thTH MAINS LSW OPTIONAL NOTES

Bihar Shops and Establishment Act,1953
Introduction
“The Bihar Shops and Establishments Act, 1953’’ received the assent of the President on 17 March 1954 and was brought into force on 15 February 1955
The Act has been amended thrice since its formation, First in the year 1961, then 1963 and lastly in the year 1974.The Act is a social piece of legislation of the State Government to regulate the condition of work and employment and therefore to secure maximum benefits to the employees working in different categories of establishment viz. shops, commercial establishments, residential hotels, restaurant, eating houses, theaters and other places of public amusements or entertainments. The employees are mainly protected by the provisions of this act.
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, not maintaining prescribed register of employment, etc.
Few exceptions where the provision of the Bihar Shops and Establishment Act is not applicable
The provisions of the Act do not apply to any precinct or premises of a mine defined under the Mines act,1952. The schedule of the Act specifies establishments, employees or other persons in relation to whom the specified provisions of the Act will not apply. The state government is empowered to add, omit or alter any entries in the Schedule.
Registration of Establishments and renewal under the Bihar Shops and Establishment Act
The State Government may make rules requiring the registration of establishment or any class of establishments or renewal thereof and prescribing manner and the fees payable for such registration or renewal.
Opening and Closing Hours of the Establishments
• No establishment is to be opened earlier than 8 A.M. and closed later than 10 P.M on any day.
• However, if a customer who is being served or is waiting to be served at closing hour in, he may be served during the quarter of an hour immediately following closing hour. The state government is empowered to alter the opening or closing hours for different establishments or for different areas or for different periods of the years. These provisions do not apply in case of an establishment in which two or more trades or business, any of which being sole trade or business are conducted.
• No person is to carry on the sale of any goods in any place, whether a shop or not, before the opening or after the closing hours prescribed under the Act or any other enactment. These provisions do not apply to the hawking of the newspapers. Hawkers on footpath or market street can sell their goods up to 11.p.m.
Hours of Work, Rest Intervals, Spreadover, Weekly Holidays, and Others under the Bihar Shops and Establishment Act
Daily and Weekly Hours of Work of Adult Employees
• No adult employee in any establishment is to be required or allowed to work in such establishment for more than 9 hours in a day and or more than 48 hours in a week. These hours will be exclusive of interval allowed for rest or for meals which together is not less than one hour in any day.
• However, employees, other than children and young persons, engaged during any period of stock-taking or making of accounts or any other prescribed purpose, may be required or allowed to work for a period in excess of these hours, but the total number of hours of work including overtime is not to exceed 10 in any day and 54 in any week and the aggregate of hours of overtime is not to exceed 150 in a year.
The employee required or allowed to work overtime is to be paid overtime wages which will be twice the ordinary rate of wages. Ordinary rate of wages includes basic wage and other allowances, which the employee is entitled to, but does not include a bonus.
Interval for Rest
No employee in any establishment is to be required or allowed to work in the establishment for more than 5 hours continuously on any day unless he has had an interval for rest of at least half an hour. There is not to be more than one such interval for rest during the whole of the working period of any employee on any day.
Spreadover
The periods of work and intervals of rest of an employee in an establishment together in a day are not to spread over more than
1. 8 hours in case of a child,
2. 10 hours in case of a young person, and
3. 12 hours in case of any other employee.
Weekly Holiday
• Every establishment is to remain entirely closed on one day of the week, but the employer may keep the establishment open on weekly holiday if it falls on the opening day of the financial year. The employer is required to specify the weekly holiday in Hindi and, if necessary, in a language understood by majority of the employees, which is to be displayed at a conspicuous and convenient place at or near the main entrance of the establishment and is to be maintained in a clean and legible condition. The weekly holiday so specified is not to be altered more than once in three months and without the prior approval of the Inspecting Officer.
• Subject to the direction of the state government, the Chief Inspecting officer may, in public interest, specify a day in which establishments in a particular area will remain entirely closed and the weekly holiday thus specified will be operative.
• The provision of weekly holiday does not apply to an employee whose total period of employment in the week inclusive of the day of authorised leave is less than 6 days, or who is entitled to an additional holiday in the week. The employee is entitled to his normal wages on weekly holidays.
Other Holidays
Every employee in an establishment to be allowed:
1. Holiday on full pay on the Independence Day, the Republic Day and Mahatma Gandhi’s Birthday each year, and
2. Such other holidays on full pay up to 5 days in a year, in connection with such festivals as the State Government may declare from time-to-time. An employee required to work on any such holiday is to be paid remuneration at double the rate of his normal wages calculated by the hour.
Suspension of Provisions During Public Holidays
The state government may suspend the operation of all or any provisions of the Act in any area and in any establishments on account of public holidays or occasions or for any other reasons for a specified period and prescribe the conditions for the same.
Service Card
Every employee of an establishment is to be furnished by the employer a service card in the prescribed form.
Employment of Children and Young Persons under the Bihar Shops and Establishment Act
Prohibition from Employment of Children
No child below the age of 14 years is to be required or allowed to work as an employee in any establishment covered under the Act.
Furthermore, no young person or women are to be required or allowed to work, whether as an employee or otherwise, in any establishment to which this Act applies before 8 A.M. or after 10 p.m.
Daily and Weekly Hours of Work for Young Persons
No young person is to be allowed to work as an employee in any establishment to which the Act applies for more than 7 hours in any day or 42 hours in any week.
Also, no young person is to be required or allowed to work in such establishment for more than 4 hours continuously on any day unless he has an interval for rest and meals of at least 1 hour.
Provision of leave with wage under the Bihar Shops and Establishment Act.
Annual leave with wages
• Every employee who has worked for 240 days or more in an establishment during a calendar year and who has not been involved in an illegal strike, is to be allowed, during the subsequent calendar year, leave with wages for a number of days calculated at the rate of one day for every twenty days of work performed by him during the previous calendar year.
• For the purpose of computation of the period of 240 days or more, the days of lay-off by agreement or contract or as permissible under the standing orders, days of lock-out, maternity leave for not more than 12 weeks in case of female employees, and leave earned in the previous year are to be included in the days on which the employee has worked. The leave with wages is to be exclusive of all holidays whether occurring during, or at either end of the period of leave.
• If the service of an employee commences otherwise then on the first day of January, he is entitled to leave with wages at the specified rate if he has worked for 2/3rd of the total number of days in the remaining period of the calendar year.
• An employee, who has been employed for a period of not less than 120 days, is entitled to leave with wages at the specified rate if the ratio of the number of days of his employment is not less than the ratio which 240 bears to 365.
If an employee does not avail of the whole leave in any calendar year, the days of unavailed leave is to be added to the leave allowed to him in the succeeding calendar year, but the total number of days of leave that may be carried forward is not to exceed 45 days.
APPLICATION FOR LEAVE HAS TO BE GIVEN AT LEAST 15 DAYS BEFORE THE EMPLOYEE INTENDS TO GO ON LEAVE.
The application for leave is ordinarily not to be refused without recording sufficient cause. An employee aggrieved by the employer’s decision to refuse leave can appeal to the prescribed authority who may also award compensation if the refusal was without sufficient cause. If the leave of an employee having to his credit 45 days of leave is reused, he is entitled to wages for the period for which leave was refused and the amount thus payable will be in addition to the normal wages payable for the period.However, in such a case, the leave to his credit will be reduced by the number of days in respect of which such an amount is received.
• If the service of an employee is terminated by the employer before he has taken the entire leave to which he is entitled or if after applying for leave he quits employment, the employer will pay him the amount which he is entitled to before the expiry of the second working day after the day on which his employment is terminated, and before the next pay day if he quits his employment. If an employee wants to avail himself of the leave with wages due to him to cover the period of illness, he is to be granted such leave even if the application is not made within the specified time and the payment is to be made within 15 days.
Other Kinds of Leave
In addition, to leave with wages earned by him, every employee of an establishment is entitled to,
• Casual leave with full pay for 12 days in a Calendar year and
• Sick leave on half pay for 12 days in a Calendar year on production of a medical certificate.
• Casual leave or the sick leave is not accumulative. Care-takers, guards, and watchmen, who have been in continuous employment for a period of 12 months or more are entitled to, in addition to the leave with wages earned, casual leave and sick leave, 45 days leave with full pay for every completed 12 months of continuous service.
Wages Payable During Period of Leave
Wages payable during the period of leave will be daily average of his total full-time earnings exclusive of any overtime earnings and the annual bonus, but inclusive of attendance bonus, efficiency bonus and other incentive bonuses and dearness allowance and the cash equivalent of any advantage accruing through the sale of foodgrains and other articles at concessional rates for the days on which he worked during the month immediately preceding his leave.
On the demand of an employee proceeding on earned leave, he is to be given an advance payment of the wages for half of period of leave and the wages for the wage-period immediately preceding such leave. The wages for the remaining half period are to be paid to him along with the wages for the first wage-period after he resumes duty. The wages for the period of sick leave shall be payable to the employee along with his wages for the first wage-period after he resumes duty.
Power of State Government to Increase the Amount of Leave
The state government is empowered to increase the total amount of leave and the minimum number of days up to which such leave may be accumulated in specified establishments.
Dismissal or Discharge
No employer is empowered to dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months, except for a reasonable cause and after giving such employee at least one month’s notice or one month’s wages in lieu of such notice. such notice is not necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an inquiry held for the purpose. An employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above.
Every employee, dismissed or discharged or whose employment is otherwise terminated, may make a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on the one or more of the following grounds, namely : —
1. There was no reasonable cause for dispensing with his services; or
2. No notice was served on him as required above; or
3. He has not been guilty of any misconduct as held by the employer; or
4. No compensation as prescribed above was paid to him before dispensing with his service.
Inspection and Penalties under the Bihar Shops and Establishment Act
Appointment of Inspecting Officer
The appointment of Inspecting Officers is to be made by the state government.
The State Government, by notification in the Official Gazette, appoint any person to be the Chief Inspecting Officer who shall, in addition to such powers as may be prescribed by the Chief Inspecting Officer, exercise the powers of an Inspecting Officer throughout the State.
Powers and Jurisdiction of Inspecting Officer
An Inspecting Officer may within the limits of his jurisdiction —
1. Enter, during such hours as may be prescribed and with such assistance, if any, as may be necessary, any premises which is, or which he has reasons to believe is, an establishment;
2. Inspect, or take extracts from any prescribed registers, records and notices maintained under this Act or the rules made thereunder or seize such records, registers or notices as he may consider relevant in respect of an offence under this Act which he has reason to believe to have been committed by an employer;
3. Take on the spot or otherwise the statement of any person which he may consider necessary for carrying out the purposes of this act. Provided that no person shall be compelled to answer any question or give any evidence tending to incriminate himself; and
4. Exercise such other power as may be prescribed for carrying out the purposes of this Act.
The Inspecting Officer for the purposes of any inquiry under this act have same power regarding the summoning and attendance of witnesses and compelling the production of documents as a Civil Court has under the Code of Civil Procedure, 1908 (V of 1908).
Inspecting Officers to be public servant
Every Inspecting Officer appointed under this Act is deemed to be public servant within the meaning of section 21 of the Indian Penal Code, 1860 (XLV of 1860).
Penalty for obstructing Inspecting Officer
• Any person who voluntarily obstructs an Inspecting Officer in the exercise of any power conferred on him by or under this Act or any person lawfully assisting an Inspecting Officer in the exercise of such power or who fails without sufficient cause to comply with any lawful direction made by an Inspecting Officer is punishable with imprisonment which may extend to 6 months or with fine which may extend to Rs.250, or with both.
• An employer, who contravenes any provisions of the Act or any rule or order made under it, if no other penalty is provided for the offense, is punishable with fine which may extend to Rs.250 for the first offence and to Rs.500 for every subsequent offence after the first conviction.
• The person, who gives a malicious or vexatious application to the prescribed authority relating to deduction of wages or delayed payment, may be directed to pay penalty not exceeding Rs.25 to the employer or other person responsible for the payment of wages.
• If the person contravening the provision of the Act or a rule or order made under it is a company or a partnership firm, every director, partner, manager or secretary is to be deemed to be guilty of the contravention, unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
• Cognizance No court is to take cognizance of an offence punishable under the Act, rule or order except on a written complaint made by Inspecting Officer or any person authorised by the state government within 6 months of the date on which the offence is alleged to have been committed. In certain cases such as annual leave with wages, other kinds of leave, notice of dismissal or discharge and claims arising out of deductions from wages or delay in payment, the court may take cognizance of the offence even after 6 months if it is satisfied that the complainant was prevented by sufficient cause from filing the complaint within this period. No court inferior to that of a magistrate of the first class is authorised to take cognizance or try an offence punishable under the Act.