Dear Seniors,
Is that compulsory that an employee should serve 30 days of notice period once after the completion of 1 year in the organization & is it not negotiable.
If we negotiate is it necessary to pay for those number days of our salary to get the re-leaving letter from the company.
Kindly assist on the same.
Regards,
Mamatha
From India, Bengaluru
Is that compulsory that an employee should serve 30 days of notice period once after the completion of 1 year in the organization & is it not negotiable.
If we negotiate is it necessary to pay for those number days of our salary to get the re-leaving letter from the company.
Kindly assist on the same.
Regards,
Mamatha
From India, Bengaluru
477
An Act to amend and consolidate the law relating to the regulation of hours of work, payment of wages, leave, holidays, terms of service and other conditions of work of persons employed in shops, commercial establishments, establishments for public entertainment or amusement and other establishments and to provide for certain matters connected therewith.
It is hereby enacted as follows:-
1.
Short title, extent, commencement and application.
(1) This Act may be called the Delhi Shops and Establishments Act, 1954.
(2) It extends to the whole of Union Territory of Delhi.
(3) It shall come into force on such date1 as Government may, by notification in the Official Gazette, appoint in this behalf.
(4) It shall apply in the first instance only to the Municipal Areas, Notified Areas and Cantonment limits of Delhi, New Delhi, Shahadra, Civil Lines, Mehrauli, Red Fort and Delhi Cantonment but Government may, by notification in the Official Gazette, direct that it shall come into force in any other local area or areas or shall apply to such shops or establishments or class of shops and establishments in such other areas as may be specified in the notification.
Comments
The Act, which received the assent of the President on 19th June, 1954, came into force with effect from the 1st of February, 1955, vide Notification No. F.5/51-1 & L, dated 17th January, 1955. The Act will apply only in Delhi and not outside Delhi. The provisions of the Act will apply to the shops and establishments located in Delhi and not to any establishment working outside Delhi. Thus, the office which the petitioner had in Iraq by itself cannot be termed as an establishment to be covered under the Act. Also it has been held by the Delhi High Court that the mere fact that the business of the petitioner is being carried on from that office so the petitioner's officer in Delhi could not be treated as an establishment to be covered under the Act; Bhandari Builders Pvt. Ltd. v. M.K. Seth, 1988 (15) DRJ 77 (SN).
The Supreme Court has observed that the preamble is a key to the enactment and it may legitimately be construed to solve any ambiguity or to fix the meaning of words which may have more than one, or to keep the effect of the statute within its real scope, whenever the enacting part is in any of these respects open to doubt. The scope of the Act is a progressive piece of legislation and design to settle the disputes on a new pattern hitherto intention to judicial machinery set in the country. The object of all labour legislation is to ensure fair wages and to prevent disputes so that production might not be adversely affected.
2.
Definitions.- In this Act, unless the context otherwise requires :-
(1) "adult" means a person who has completed his eighteenth year of age;
(1A) "apprentice" means a person, who is employed, whether on payment of wages or not, for the purpose of being trained in any trade, craft or employment in any establishment;
(2) "child" means a person who has not completed his twelfth year of age;
(3) "close day" means the day of the week on which a shop or establishment remains closed;
(4) "closing hour" means the hour at which the shop or commercial establishment closes;
(5) "commercial establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on and includes a society registered under the Societies Registration Act, 1860 (21 of 1860), and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with, or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments, quarries and mines not governed by the Mines Act, 1952 (35 of 1952), educational or other institutions run for private gain, and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (43 of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusements or entertainment;
(6) "day" means a period of twenty-four hours beginning at mid-night:
Provided that in the case of an employee whose hours of work extended beyond mid-night, day means the period of twenty-four hours beginning when such employment commences irrespective of mid-night;
(7) "employee" means a person wholly or principally employed, whether directly or otherwise, and whether for wages (payable on permanent, periodical, contract, piece-rate or commission basis) or other consideration, about the business of an establishment and includes an apprentice and any person employed in a factory but not governed by the Factories Act, 1948 (43 of 1948), and for the purpose of any matter regulated by this Act, also includes a person discharged or dismissed whose claims have not been settled in accordance with this Act;
(8) "employer" means the owner of any establishment about the business of which persons are employed, and where the business of such establishment is not directly managed by the owner, means the manager, agent or representative of such owner in the said business;
(9) "establishment" means a shop, a commercial establishment, residential hotel, restaurant, eating-house, theatre or other places of public amusement or entertainment to which this Act applies and includes such other establishment as Government may, by notification in the Official Gazette, declare to be an establishment for the purpose of this Act;
(10) "factory" means a factory as declared or registered under the Factories Act, 1948 (43 of 1948);
(11) "family" means the husband, wife, son, daughter, father, mother, brother, sister or grandson of an employee, living with and wholly dependent on such employee;
(12) "Government" means the *Chief Commissioner, Delhi ;
(13) "holiday" means a day on which an establishment shall remain closed or on which an employee be given a holiday under the provisions of the Act;
(14) "hours of work" or "working hours" means the time during which the persons employed are at the disposal of the employer exclusive of any interval allowed for rest and meals and "hours worked" has corresponding meaning;
(15) "inspector" means an Inspector appointed under section 36 of the Act;
(16) "leave" means leave as provided for under this Act;
(17) "occupier" means a person owning or having charge or control of establishment and includes the manager, agent or representative of such occupier;
(18) "opening hour" means the hour at which a shop or commercial establishment opens for the service of a customer;
(19) "prescribed" means prescribed by rules made under this Act;
(20) "register of establishments" means a register maintained for the registration of establishments under this Act;
(21) "registration certificate" means a certificate showing the registration of an establishment;
(22) "religious festival" means any festival which the Government may by notification in the Official Gazette declare to be a religious festival for the purposes of this Act;
(23) "residential hotel" means any premises in which business is carried on for the supply of dwelling accommodation and meals on payment of a sum of money by a traveller or any member of the public or a class of the public and includes a club;
(24) "restaurant" or "eating house" means any premises in which is carried on wholly or principally the business of the supply of meals or refreshment to the public or a class of the public for consumption on the premises;
(25) "retail trade or business" includes the business of a barber or hair-dresser, the sale of refreshment of intoxicating liquors, and retail sales by auction;
(26) "schedule" means a schedule appended to this Act;
(27) "shop" means any 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 workhouse or work place, whether in the same premises or otherwise, used in or in connection with such trade or business but does not include a factory or a commercial establishment;
(28) "spread-over" means the periods between the commencement and the termination of the work of an employee on any day;
(29) "summer" means the period covering the months of April, May, June, July, August and September;
(30) "wages" means wages as defined in section 2 of the Minimum Wages Act, 1948 (11 of 1948);
(31) "week" means the period of seven days beginning at mid-night on Saturday;
(32) "winter" means the period covering the months of October, November, December, January, February and March;
(33) "year" means the calendar year;
(34) "young person" means a person who is not a child and has not completed his eighteenth year of age.
Comments
Sub-section 2(2) "Child"
Although a child has been defined a person who has not completed his twelfth year of age but it is to be read as fourteen year. It is pertinent to state that the employment of children as domestic servants in dhabas (Roadside eateries), restaurants, hotels, motels, teashops, resorts, spas or in other recreational centres has been banned from October 10, 2006 not only in Delhi but all over India . The ban, notified by the labour ministry has been imposed under the Child Labour (Prohibition & Regulation Act, 1986. The decision has been taken on the recommendation of the Technical Advisory Committee on Child Labour.
The committee had stated that the occupations mentioned were hazardous for children and had recommended their inclusion in the occupations which are prohibited for persons below 14 years under the Child Labour (Prohibition & Regulation) Act, 1986.
Sub-section (5)-"Commercial Establishment"
(i) Name of employer. In the first instance a place in order to fall within the definition of "commercial establishments" must be "premises". Secondly, it should be premises wherein (a) any trade, business or profession is carried on, or (b) any work in connection with or incidental or ancillary thereto is carried on. Sub-clause (b) is only ancillary to (a); Chief Commissioner, Delhi v. Federation of Indian Chambers of Commerce and Industry, New Delhi, 1974 II LLJ 21 (SC): 45 FJR 306: (1974) Lab IC 1004.
(ii) A religious body is not an establishment within the meaning of the Act and, therefore, the Act does not apply to such a body; Sanatan Dharam Sabha v. Johri Mal, 1982 RLR 512 (Del. HC)
Since the definition of commercial establishment includes the institution run for private gain, obvious private educational institutions will be covered under the Act.
Sub-section 13-"Holiday"
Holidays are off days granted by the employer to the employees either voluntarily or compulsorily under the force of law. The Dictionary meaning of a 'Holiday' is 'A day on which ordinary occupations (of an individual or a community) are suspended; a day of festivity, recreation or amusement'. (Oxford English Dictionary, Vol. V). The introduction of paid holidays for workers, both in law, and in practice, is based on the one hand on the 'employees' right to leisure and to the opportunity of developing his personality and, on the other, on the necessity of preserving or restoring his health and strength in the interests of production and service to be rendered. Holidays with pay, if they are properly utilized, may provide a real and complete escape from the ideal means of relaxation and afford abundant opportunity of gaining material and social experience under different conditions and workers generally undertake factory work because of necessity.
Employees return to their jobs with fresh enthusiasm and renewed reserves of strength after spending their holidays under suitably restful conditions. This is confirmed by the conclusion reached in the many recent studies of the psychology or work, especially in the field of productivity. The quicker industrial rhythm and the monotony of the work caused by modern mechanization render it essential to grant regular rest periods if workers are not to succumb to physical overstrain and to the weakening of their morale and if their health and working capacity are to be preserved. However, there are no fixed holidays and/or prescribe under the Act.
Sub-section (14)-"working hours"
The phrase "working hours" or "hours of work" as defined in this sub-section means the time during which the persons employed are at the disposal of the employer exclusive of any interval for rest and meals and "hour worked" has a corresponding meaning. The use of the expression, "at the disposal of the employer" is not without any significance. It indicates that the person so employed must be available to work and to be under the control or supervision of the employer during the working hours and it seems to be immaterial whether the person so employed has worked during the entire working hours or not or whether the employer has taken any work from him. The only obligation appears to be that he must remain at the disposal of the employer throughout the working hours fixed under the Act, excluding of course the time allowed for rest and meals.
Sub-section (16)-"Leave"
The expressions 'leave means leave of absence, that is to say, the permission obtained by an employee from his employer relieving him from the duty of attending the work with or without pay. The dictionary meaning of the word 'leave' being permission, unless such permission is given or leave sought is granted, it cannot be said that the person seeking leave can absent himself from duty in an unauthorised manner; Industrial Tribunal v. Rabindra Nath Sen , 1963 I LLJ 582.
Sub-section (22)-"religious festival"
The expression, "religious festival" has been defined to mean any festival which the Government may, by notification in the Official Gazette, declare to be religious festival for the purpose of this Act. By Notification No. F 12 (54) I & L dated 31st January, 1956 published in the Delhi State Gazette Part V dated 9th February, 1976 at page 69, the Government has declared Holi, Dussehra, Janam Ashtami, Chet Shudi Parwa, Baisakhi, Guru Nanak's Birthday, Guru Govind Singh's Birthday, Id-ul-Zuha, Id-ul-Fitar, Christmas, Lord Mahavir's Birthday as the religious festivals in exercise of the powers conferred on it by this sub-section. The definition has been given in the context of sub-clause (ii) of sub-section (3) of section 16 of the Act which enables the occupier of a shop or commercial establishment to open his shop or commercial establishment on a close day in case such a day happens to coincide with a religious festival.
Sub-section (24)-"restaurant" or "eating house"
"Restaurant" or "eating house" as defined in this sub-section means any premises in which is carried on wholly or principally the business of the supply of meals or refreshments to the public or a class of the public for consumption on the premises. The Lt. Governor, Delhi issued a notification in exercise of the powers conferred on him by sub-section (9) of section 2 declaring all canteens and clubs which were not residential hotels, restaurants, eating houses or other places of public amusement or entertainments, to be "establishments" within the meaning of the Act; Notification No. F 2(11) 79, dated 23rd September, 1976, published in the Delhi Gazette Part IV, dated October, 1976.
Sub-section (27)-"Shops"
The word 'shop' has acquired an expanded meaning. Where in a premises any economic activity is carried on leading to sale or purchase, that premises will have to be held a 'shop' for the purpose of the Act, even though there is no actual giving or taking of goods in such premises. If the business carried on a premises results in having some nexus with the purchase or sale of goods. It is sufficient to be 'shop'; Southern Agencies, Rajamundry v. Andhra Pradesh Employees' State Insurance Corporation, 2001 LLR 93 (SC).
Sub-section (28)-"spread over"
The period between the commencement and the termination of the work of an employee on any day is called "spread over". The spread over in respect of shops is 12 hours and in respect of other establishments is 10 ½ hours.
An establishment can be both, i.e., a shop and an establishment
hile elaborating the scope and meaning of "Shops and Establishments", the Supreme Court has held that a Company having several offices engaged in import and export, clearing and forwarding of cargo, travel and tourism and courier services will be both a Shop and Commercial Establishment; Air Freight Ltd. v. State of Karnataka, 1999 LLR 1008 (SC).
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
3.
Rights and privileges under other law, etc. not affected
Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to at the date this Act comes into force or under any other law, contract, custom or usage applicable to such establishment or an 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.
Comments
A plain reading of this section would go to show that it has a limited operation confined to a particular date, i.e., the date on which this Act came into force. On that day if a right or privilege had accrued to any employee under any other law, contract, custom or usage, and if that right or privilege was more favourable or advantageous to him than those declared under this Act, the employee was entitled to retain that right or privilege.
4.
Exemptions
Notwithstanding anything contained in this Act, the provisions of this Act mentioned in the third column of the Schedule shall not apply to the establishment, employees and other persons mentioned against them in the second column of the said Schedule: Provided that the Government, may, by notification published in the Official Gazette, add to, omit or alter any of the entries of the said Schedule, and on the publication of such notification, the entries in either column of the said Schedule shall be deemed to be amended accordingly.
Comments
The provisions of this section shall be given effect to irrespective of the other provisions of the Act. The provisions of this Act mentioned in the third column of the Schedule shall not apply to the establishments, employees and other persons mentioned against them in the second column of the said Schedule. This section also empowers the Government by notification in the Official Gazette to add to, omit, or alter any of the entries in the Schedule.
*5.
Registration of Establishment
(1) Within the period specified in sub-section (5), the occupier of every establishment shall send to the Chief Inspector a statement in a prescribed form, together with such fees as may be prescribed, containing:
(a) the name of the employer and the manager, if any;
(b) the postal address of the establishment;
(c) the name, if any, of the establishment,
(d) the category of the establishment, i.e. , whether it is a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;
(e) the number of employees working about the business of the establishment; and
(f) such other particulars as may be prescribed.
(2) On receipt of the statement and the fees, the Chief Inspector shall, on being satisfied about the correctness of the statement, register the establishment in the Register of Establishments, in such manner as may be prescribed and shall issue, in a prescribed form a registration certificate to the occupier.
(3) The registration certificate shall be prominently displayed at the establishment and shall be renewed at such intervals as may be prescribed in this respect.
(4) In the event of any doubt or difference of opinion between an occupier and Chief Inspector as to the category to which an establishment should belong, the Chief Inspector shall refer the matter to the Government which shall, after such enquiry, as it may think proper, decide the category of the establishment and the decision thereof shall be final for the purpose of this Act.
(5) Within ninety days from the date mentioned in column 2 below in respect of any establishment mentioned in column 1, the statement together with fees shall be sent to the Chief Inspector under sub-section (1):
Establishments date from which the period of 90 days is to commence
1 2
(i) Establishments existing in municipal areas, notified areas, and cantonment limits of Delhi, New Delhi, Shahdara, Civil Lines, Mehrauli, Red Fort and Delhi Cantonment. The date on which this Act comes into force
(ii) Establishments existing in local areas in which this Act is brought into force by notification under sub-section (4) of section 1.
The date on which this Act comes into force in the local areas concerned
(iii) New establishments in areas mentioned in clauses (i) and (ii) of this sub-section.
The date on which the establishment commences the work
6.
Change to be communicated to the Chief Inspector
It shall be the duty of the occupier to notify to the Chief Inspector, on a prescribed form any change in respect of any information contained in his statement under sub-section (1) of section 5 within thirty days after the change has taken place. The Chief Inspector shall on the receipt of such notice and the prescribed fee and on being satisfied about its correctness make the change in the register of establishments in accordance with such notice and shall amend the registration certificate, or issue a fresh registration certificate, if necessary.
7.
Closing of establishment tobe communicated to the Chief Inspector
The occupier shall within fifteen days of his closing the establishment, notify to the Chief Inspector in writing accordingly. The Chief Inspector shall on receiving the information and being satisfied about the nature of closure remove such establishment from the register of establishments and cancel the registration certificate:
Provided that the Chief Inspector may not, if satisfied that the establishment is likely to re-start within a period of six months, remove it from the Register of Establishment and cancel the registration certificate.
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
8.
Employment of Adults, hours of work
No adult shall be employed or allowed to work about the business of an establishment for more than nine hours on any day or 48 hours in any week and the occupier shall fix the daily periods of work accordingly: Provided that during any period of stock taking or making of accounts or any other purpose as may be prescribed, any adult employee may be allowed or required to work for more than the hours fixed in this section, but not exceeding 54 hours in any week subject to the conditions that the aggregate hours so worked shall not exceed 150 hours in a year: Provided further that advance intimation of at least three days in this respect has been given in the prescribed manner to the Chief Inspector and that any person employed on overtime shall be entitled to remuneration for such overtime work at twice the rate of his normal remuneration calculated by the hour. Explanation.- For the purpose of calculating the normal hourly wage the day shall be reckoned as consisting of eight hours.
Comments
(a) Mode for calculation of overtime wages
For any work in excess of nine hours on any day or for more than 48 hours in any week, overtime wages are to be paid at the rate of double the wages. It is provided therein that where a worker is required to work beyond the normal hours of work or on any day of rest, he shall be entitled to wages at rate of twice his ordinary rate of wages in respect of the overtime work or work done on a day of rest, as the case may be.
The cases where a workman is paid a daily rate present no difficulty. However, when payment is made on monthly scale of pay, the daily rate of wages for a worker can be obtained only by dividing the amount of wages for 30 days by 26. This is done because the workman is entitled to four days as weekly rest during which period he does not work. The reason is that workman actually gets monthly wages for the work done only for 26 days. Thus for a workman, it is the actual receipt for 26 days which is his monthly scale of pay, i.e., 30 days wages. Therefore, a day's wage should mean the result obtained by dividing the monthly wages by actual number of working days, i.e., 26 days. This principle will, however, be applicable in case of such workers who get monthly wages only for the actual number of working days. The formula for calculation of the overtime wages for one hour is to divide the month's wages by 26 into the number of normal working hours and the result so obtained by them then multiplied by two to calculate one hour's overtime wages; P. Radhakrishnan Nair v. K.S.R.T.C., 1983 Lab. IC 276 (Ker. HC). Similarly, a day's wage should mean the result obtained by dividing the monthly wages by actual number of working days; K.S. Verma v. The Madhya Pradesh State Road Transport Corporation, 1979 Lab IC 107: 1979 LLR 150.
In one case before the Supreme Court, the management had prescribed 39 hours and had agreed to pay overtime wages for any work taken in excess of such normal working hours and upto the maximum, i.e., 48 hours at 1½ times the ordinary rate of wages and beyond the maximum, i.e., 48 hours and upto 54 hours at double the rate of ordinary wages and the question posed was where the employer prescribes working hours less than the maximum permissible in the statute, does he incur the obligation to pay overtime wages at the rates prescribed in the Tamil Nadu Shops & Establishments Act, 1947. The Supreme Court allowed the appeals filed by the management and reversed the decision of the High Court directing payment of overtime wages by twice the ordinary rates of wages for any work beyond the prescribed 39 hours and upto 48 hours; Philips India Ltd. v. Labour Court, Madras, AIR 1985 SC 1034: 1985 (1) LLN 633: 1985 (66) FJR 474.
However, the Allahabad High Court has held that if the workers are required to work for additional hours but if such additional hours will be less than 48 hours in a week, the employees will be entitled to wages and not overtime; New Victoria Mills, Unit of National Textile Corporation, Uttar Pradesh Ltd. v. Labour Court (1) Kanpur, 1990 LLR 113.
Claim for overtime should be made within reasonable time. It has been held by Delhi High Court that the claim for overtime by the employee when he was in Iraq or if he could not make his claim there, he should have served a notice in writing upto the employer as soon as he returned to India; Bhandari Builders v. M.K. Seth, 1988 (72) FJR 134: 1988 LLR 91: 1988(1) CLR 279.
It is, however clarified that the Delhi Shops & Establishments Act, 1954 is not exhaustive on all the rights and obligations of the employers and the employees as such the provisions of Industrial Disputes Act, 1947 being Central Act governs the matters.
For instance if an employer who proposes to effect any change prejudicial to the workmen, in respect of any matter specified in the fourth schedule to the Act, should give the workmen concerned twenty one days notice under section 9A of the Industrial Disputes Act. The real object and purpose of section 9A of the Act is to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common interest of the management and workmen in industrial progress, efficiency and increased productivity. This approach on the part of the employer would reflect his harmonious and sympathetic cooperation in improving the status and dignity of the employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence which strives to treat capital and labour as co-sharers and to break away from the tradition of labour's subservience to capital. In order to achieve the object underlying section 9A, it would be more appropriate to place on the fourth schedule read with section 9A of the Industrial Disputes Act, a construction liberal enough to include change of weekly rest days from Sundays to some other week day.
The Fourth Schedule as appended to the Industrial Disputes Act, 1947 provides as follows:
"Conditions of Service for Change of which Notice is to be given
(1) Wages, including the period and mode of payment;
(2) Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force;
(3) Compensatory and other allowances;
(4) Hours of work and rest intervals;
(5) Leave with wages and holidays;
(6) Starting alteration or discontinuance of shift working otherwise than in accordance with standing orders;
(7) Classification by grades;
(8) Withdrawal of any customary concession or privilege or change in usage;
(9) Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;
(10) Rationalisation, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;
(11) Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control."
For instance, in one case, it has been held that increasing of half an hour daily by the employees will amount to change in conditions of service hence notice under section 9A of the Industrial Disputes Act will be imperative; Director of Agriculture v. Dev Raj , 2006 LLR 1019 (HP HC).
9.
Restriction on double employment
No person shall work about the business of an establishment or two or more establishments or an establishment and a factory in excess of the period during which he may be lawfully employed under this Act.
10.
Interval for rest and meals
(1)
The period of work of an adult employee in an establishment each day shall be so fixed that no period of continuous work shall exceed five hours and that no employee shall be required or allowed to work for more than five hours before he had an interval for rest and meals of at least half an hour.
(2) The time for such interval shall be fixed by the employer and intimated to the Chief Inspector a week before such fixation and shall remain operative for a period of not less than three months.
11.
Spread-over
The periods of work on any day of an adult person shall be so arranged that inclusive of his interval for rest or meals as required under section 10, they shall not spread over for more than ten and a half hours in any commercial establishment or for more than twelve hours in any shop.
12.
Prohibition of employment of children
No child shall be required or allowed to work whether as an employee or otherwise, in any establishment notwithstanding that such child is a member of the family of the employer.
Comments
Although a child has been defined a person who has not completed his twelfth year of age but it is to be read as fourteen year. It is pertinent to state that the employment of children as domestic servants in dhabas (roadside eateries), restaurants, hotels, motels, teashops, resorts, spas or in other recreational centres has been banned from October 10, 2006 not only in Delhi but all over India . The ban, notified by the labour ministry has been imposed under the Child Labour (Prohibition & Regulation Act, 1986).
The decision has been taken on the recommendation of the Technical Advisory Committee on Child Labour.
The committee had stated that the occupations mentioned were hazardous for children and had recommended their inclusion in the occupations which are prohibited for persons below 14 years under the Child Labur (Prohibition & Regulation) Act, 1986.
13.
Employment in Young Persons-hours of work
(1) No young person shall be required or allowed to work about the business of an establishment for more than six hours a day.
(2) No young person shall be employed continuously for more than three and a half hours without an interval of at least half an hour for rest or meals and the spread over shall not exceed eight hours on any day.
Comments
The persons who have completed twelve years of age but are below eighteen years fall within the definition of "young persons" as given in section 2 (34) of the Act. The provisions of this section also apply to all kinds of establishments like the preceding section 12 of the Act. Read as a whole, this section contemplates that (i) no young person can be employed or allowed to work in any establishment for more than six hours a day; (ii) there must be an interval of at least half an hour for rest or meals after he has continuously worked for three and a half hours on any day; and (iii) the periods of work in respect of such persons including the time given for rest or meals should not exceed more than eight hours on any day. These restrictions are absolute and the violation of any of these restrictions is an offence punishable under the Act.
14.
Young persons and women to work during day time
No young person, or woman shall be allowed or required to work whether as an employee or otherwise in any establishment between 9 p.m. and 7 a.m. during the summer season and between 8 p.m. to 8 a.m. during the winter season.
Comments
Like preceding sections 12 and 13, this section puts restrictions on the employment of young persons and women during certain hours. It lays down that no young person or woman can be required or allowed to work, whether as an employee or otherwise, between 9 p.m. and 7 a.m. during summer and between 8 p.m. and 8 a.m. during winter. The summer season starts from 1st April and ends on 30th September while the winter season starts from 1st October and ends on 31st March of the following year. The Lt. Governor has withdrawn such exemptions available to: Akbar Hotel, Hotel Oberoi Intercontinental, Ashok Hotel, The Taj Mahal Hotel and Hotel Sidharth, New Delhi
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
15.
Opening and closing hours of shops and commercial establishment
(1)
No shop or commercial establishment on any day, be opened earlier than such hour or closed later than such hour, as may be fixed by the Government by general or special order made in that behalf:
Provided that any customer who was being served or was waiting to be served in any shop or commercial establishment at the closing hour so fixed may be served during the period of fifteen minutes immediately following such hour.
(2) Before making an order under sub-section (1), the Government shall hold an inquiry in such manner as may be prescribed.
(3) The Government may, for the purposes of this section, fix different opening hours and different closing hours for different classes of shops or commercial establishments or for different areas or for different times of the year.
Comments
Opening and closing hours
The opening and closing hours of all shops, within the urban, semi-urban and rural areas of the Union Territory of Delhi, whether comprised in the Municipal Corporation of Delhi, the New Delhi Municipal Committee or the Delhi Cantonment Board, are 9 a.m. and 7 p.m. respectively, while in respect of commercial establishments within such territory, the opening and closing hours are 8 a.m. and 6 p.m respectively, vide Notification No. F. 9(1)/79/LC (S), dated 19th July, 1979 . Same relexations have been given and as such. 1
16.
Close day
(1)
Every shop and commercial establishment shall remain closed on a close day.
(2) In addition to the close day every shop and commercial establishment shall remain closed on three of the National holidays each year as the Government may by notification in the Official Gazette specify.
(3)
(i)
The Government may, by notification in the Official Gazette, specify a close day for the purposes of this section and different days may be specified for different classes of shops or commercial establishments or for different areas.
(ii) Notwithstanding anything contained in sub-section (1), the occupier of any shop or a commercial establishment may, open his shop or commercial establishment on a close day, if such a day happens to coincide with a religious festival, "or the Mahurat day" , the day of the commencement of the financial year of the establishment concerned, provided a notice to this effect has been given to the Chief Inspector at least twenty-four hours before the close day and that in lieu thereof the shop or the commercial establishment is closed on either of the two days immediately preceding or following that close day.
Comments
Long overdue changes in section 15 & 16 of the Act were brought about in September 2004 by the Lieutenant Governor of Delhi. (Please see Schedule I, Item No. 249).
The closing of 11 P.M. is completely optional. Shops owner cannot be forced to keep their shops open till then, and no employee can be made to work till 11 P.M. against his will. The timings depend solely on the needs and wishes of they owners as long as they are within the stipulated time mentioned in the Act, i.e. 9 to 9.30 A.M.-11 P.M.
17.
Period of rest (weekly holiday)
Every employee shall be allowed at least twenty-four consecutive hours of rest (weekly holiday) in every week, which shall, in the case of shops and commercial establishments required by this Act to observe a close day, be on the close day.
18.
Wages for the holiday
No deduction shall be made from the wages of any employee on account of the close day under section 16 or a holiday granted under section 17 of this Act.
If an employee is employed on a daily wage, he shall nontheless be paid his daily wage for the holiday and where an employee is paid on piece rates, he shall receive the average of the wages received during the week.
Comments
It was held that the notification under Minimum Wages Act by Delhi Administration providing that the daily rates of wages include wages for weekly off days will not be attracted since no rates were fixed in respect of wages to be paid on the basis of piece rate; Co-operative Stores Ltd. v. K.S. Khurana, 1988 (1) Delhi Lawyers 452: 1988 (ii) CLR 670.
19.
Time and conditions of payment of wages
(1)
Every employer or his agent or the manager of any establishment shall fix periods in respect of which wages to the employee shall be payable and such person shall be responsible for the payment to persons employed by him of all wages required to be paid under this Act.
(2) No wage period, so fixed, shall exceed one month.
(3) The wages of every employee in any shop or establishment shall be paid on a working day before the expiry of the seventh day of the last day of the wage period in respect of which the wages are payable.
(4) All wages shall be paid in cash.
(5) Where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day after the day on which his employment is terminated.
20.
Deductions which may be made from wages
(1)
The wages of an employed person shall be paid to him without deduction of any kind except those specified in sub-section (2).
Explanation.- Every payment made by the employed person to the employer or his agent or the manager shall for the purpose of this Act be deemed to be a deduction from wages.
(2) Deductions from the wages of an employee shall be of one or more of the following kinds, namely
(i) Fines
(ii) Deductions for absence from duty;
(iii) Deductions for damage to or loss of goods expressly entrusted to the employed person for custody, or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;
(iv) Deductions for house accommodation supplied by the employer;
(v) Deductions for such amenities and services supplied by the employer as the Government may by general or special order authorise;
Explanation.- The words 'amenities and services' in this clause do not include the supply of tools and protective required for the purpose of employment.
(vi) Deductions for the recovery of advances or for adjustment of over-payments of wages, provided that such advances do not exceed an amount equal to wages for two calendar months of the employed person and; in no case, shall the monthly instalment of deduction exceed one-fourth of the wages earned in that month.
(vii) Deductions of income-tax payable by the employed person;
(viii) Deductions required to be made by order of a Court or other competent authority;
(ix) Deductions for subscription to, and for repayment of advances from, any provident fund to which the Provident Fund Act, 1952 (XIX of 1952) applies or any recognized provident fund as defined in section 2(38) of Income Tax Act, 1961 (43 of 1961) or any provident fund approved in this behalf by the Government during the continuance of such approval;
(x) Deductions for payment to co-operative societies or to a scheme of insurance approved by the Government.
(3) Any employer desiring to impose a fine on an employed person or to make a deduction for damage or loss caused by him shall explain to him personally and also in writing the act or omission or the damage or loss, in respect of which the fine or deduction is proposed to be imposed or made, and give him an opportunity to offer any explanation in the presence of another person. The amount of the said fine or deduction shall also be intimated to him.
(4) The amount of fine or deduction mentioned in sub-section (3) shall be such as may be specified by the Government. All such deductions and realizations thereof shall be recorded in a register maintained in a form as may be prescribed.
(5) The amount of fine imposed under sub-section (3) shall be utilised in accordance with the directions of the Government
(6) Nothing in this section shall be deemed to affect the provisions of the Payment of Wages Act, 1936 (IV of 1936).
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
21.
Claim related to wages
(1)
The Government may by notification in the Official Gazette, appoint any Commissioner for Workmen's Compensation Act or other officer with experience as a Judge of a Civil Court or as a Stipendiary Magistrate to be the authority to hear and decide all claims arising out of delayed payment or non-payment of earned wages of an employee employed in any establishment.
(2) Application for any such claim may be made to the authority appointed under sub-section (1) by the employee himself or any Official of a registered trade union authorised in writing to act on his behalf or any legal practitioner or the Chief Inspector for a direction under sub-section (3):
Provided that every such application should be presented within one year from the date the claim for such wages has become payable under this Act:
Provided further that an application may be admitted after the said period of one year when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer, or give them an opportunity of being heard and after such further enquiry, if any, as it may consider necessary may without prejudice to any other penalty to which employer may be liable under this Act, direct the payment to the employee of the amount due to him together with the payment of such compensation as the authority may think fit, not exceeding half the amount so due or Rs. 100, whichever is less.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding hundred rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered:
(a) if the authority is a magistrate, by the authority as if it was a fine imposed by the authority as a magistrate, or
(b) if the authority is not a magistrate, by any magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such magistrate.
(6) Every direction of the authority under this section shall be final.
(7)
Every authority appointed under sub-section (1) shall have all powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).
Comments
Jurisdiction of the Authority
If an employee works for extra hours voluntarily and without any direction by the management, the claim for overtime will not be admissible; Bhandari Builders Pvt. Ltd. v. M.K. Seth, 1988 (15) DRJ 77 (SN).
22.
Leave
(1)
Every person employed in an establishment shall be entitled :
(a) after every twelve months', continuous employment, to privilege leave for a total period of not less than fifteen days;
(b) in every year, to sickness or casual leave for a total period of not less than twelve days;
Provided that
(i)
an employee who has completed a period of four months in continuous employment, shall be entitled to not less than five days privilege leave for every such completed period; and
(ii) an employee who has completed a period of one month in continuous employment, shall be entitled to not less than one day's casual leave for every month.
Provided further that a watchman or caretaker who has completed a period of twelve months in continuous employment and to whom the provisions of Section 8, 10, 11, 13 and 17 do not apply by virtue of an exemption granted under Section 4, shall be entitled to not less than thirty days' privilege leave.
(1A)
(i)
Privilege leave to which an employee is entitled under clause (a) of sub-section (1) or under any such law, contract, custom or usage, award, settlement or agreement as is referred to in section 3, or any part of such leave, if not availed of by such employee, shall be added to the privilege leave in respect of any succeeding period to which he is so entitled, so however, the total period of such privilege leave which may be accumulated by such employee shall not at anyone time exceed three times the period of privilege leave to which he is entitled after every twelve months' employment under that clause or under such law, contract, custom or usage, award, settlement or agreement.
(ii) Leave admissible under clause (b) of sub-section (1) shall not be accumulated].
(2) If an employee entitled to leave under clause (a) of sub-section (1) of this section is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him full wages for the period of leave due to him.
23.
Wages 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 three months, exclusive of any earnings in respect of overtime but inclusive of dearness allowance.
24.
Contracting Out
Any contract or agreement, whether made before or after the commencement of the Delhi Shops and Establishments (Amendment) Act, 1970, whereby an employee relinquishes any right conferred by this Act, shall be null and void in so far as it purports to deprive him of such right.
Comments
Under section 24 no contract or agreement can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act and if such a contract or agreement is made, it would be null and void. In other words, this section makes a contract or agreement under which an employee relinquishes any right conferred by this Act, null and void to the extent it purports to deprive him of the right. A workman will not be legally bound by the contents of the receipt for full and final settlement executed by him if he is waiving any legal dues; Bhandari Builders Pvt. Ltd. v. M.K. Seth, 1988 (15) DRJ 77 (SN).
25
Cleanliness
The premises of every establishment shall be kept clean and free from effluvia arising from any drain or privy or other nuisance and shall be cleaned at such times and by such methods as may be prescribed. These methods may include lime washing, colour washing, painting and disinfecting.
26.
Lighting and ventilation
(1)
The premises of every establishment shall be kept sufficiently lighted and ventilated during all working hours.
(2) Suitable arrangements shall be made for supply of drinking water to the employees.
27.
Power to enforce cleanliness, etc.
If it appears to an Inspector that the premises of any establishment within his jurisdiction are not sufficiently lighted, cleaned or ventilated, he may serve on the employer an order in writing specifying the measures which in his opinion should be adopted and requiring them to be carried out before a date specified in the order.
The Government may prescribe standards in respect of any of these matters.
Dear Mamatha,
Is your organisation a factory or does it fall in Shop and Establishment?
Notice period is mentioned in the appointment letter.
I am attaching extract of Delhi Shops and Establishment Act.
for your information.
Best Wishes,
Col.Rathi
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
30.
Notice of dismissal
(1)
No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one months' notice in writing or wages in lieu of such notice :
Provided that such notice shall not be necessary where services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges against him in writing.
(2) No employee who has put in 3 months' continuous service shall terminate his employment unless he has given to his employer a notice, of at least one month, in writing. In case he fails to give one month's notice he will be released from his employment on payment of an amount equal to one month's pay.
(3) In any case instituted for a contravention of the provisions of sub-section (1), if a Magistrate is satisfied that an employee had been dismissed without any reasonable cause or discharged without proper notice or pay in lieu of notice, the Magistrate may, for reason to be recorded in writing, award, in addition to one month's salary, compensation to the employee as follows:
(a)
When immediately before his discharge or dismissal, the employee was in receipt of a salary not exceeding Rs. 100 per month, such amount of compensation not exceeding his month's salary, as the Magistrate may direct
(b) When immediately before his dismissal or discharge, the employee was in receipt of a salary exceeding hundred rupees per mensem, such amount of compensation not exceeding hundred rupees, as the Magistrate may direct.
(4) The amount payable as compensation under this section shall be in addition to any fine payable under section 40.
(5) No person who has been awarded compensation under this section shall be at liberty to bring a civil suit in respect of the same claim.
From India, Delhi
It is hereby enacted as follows:-
1.
Short title, extent, commencement and application.
(1) This Act may be called the Delhi Shops and Establishments Act, 1954.
(2) It extends to the whole of Union Territory of Delhi.
(3) It shall come into force on such date1 as Government may, by notification in the Official Gazette, appoint in this behalf.
(4) It shall apply in the first instance only to the Municipal Areas, Notified Areas and Cantonment limits of Delhi, New Delhi, Shahadra, Civil Lines, Mehrauli, Red Fort and Delhi Cantonment but Government may, by notification in the Official Gazette, direct that it shall come into force in any other local area or areas or shall apply to such shops or establishments or class of shops and establishments in such other areas as may be specified in the notification.
Comments
The Act, which received the assent of the President on 19th June, 1954, came into force with effect from the 1st of February, 1955, vide Notification No. F.5/51-1 & L, dated 17th January, 1955. The Act will apply only in Delhi and not outside Delhi. The provisions of the Act will apply to the shops and establishments located in Delhi and not to any establishment working outside Delhi. Thus, the office which the petitioner had in Iraq by itself cannot be termed as an establishment to be covered under the Act. Also it has been held by the Delhi High Court that the mere fact that the business of the petitioner is being carried on from that office so the petitioner's officer in Delhi could not be treated as an establishment to be covered under the Act; Bhandari Builders Pvt. Ltd. v. M.K. Seth, 1988 (15) DRJ 77 (SN).
The Supreme Court has observed that the preamble is a key to the enactment and it may legitimately be construed to solve any ambiguity or to fix the meaning of words which may have more than one, or to keep the effect of the statute within its real scope, whenever the enacting part is in any of these respects open to doubt. The scope of the Act is a progressive piece of legislation and design to settle the disputes on a new pattern hitherto intention to judicial machinery set in the country. The object of all labour legislation is to ensure fair wages and to prevent disputes so that production might not be adversely affected.
2.
Definitions.- In this Act, unless the context otherwise requires :-
(1) "adult" means a person who has completed his eighteenth year of age;
(1A) "apprentice" means a person, who is employed, whether on payment of wages or not, for the purpose of being trained in any trade, craft or employment in any establishment;
(2) "child" means a person who has not completed his twelfth year of age;
(3) "close day" means the day of the week on which a shop or establishment remains closed;
(4) "closing hour" means the hour at which the shop or commercial establishment closes;
(5) "commercial establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on and includes a society registered under the Societies Registration Act, 1860 (21 of 1860), and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with, or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments, quarries and mines not governed by the Mines Act, 1952 (35 of 1952), educational or other institutions run for private gain, and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (43 of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusements or entertainment;
(6) "day" means a period of twenty-four hours beginning at mid-night:
Provided that in the case of an employee whose hours of work extended beyond mid-night, day means the period of twenty-four hours beginning when such employment commences irrespective of mid-night;
(7) "employee" means a person wholly or principally employed, whether directly or otherwise, and whether for wages (payable on permanent, periodical, contract, piece-rate or commission basis) or other consideration, about the business of an establishment and includes an apprentice and any person employed in a factory but not governed by the Factories Act, 1948 (43 of 1948), and for the purpose of any matter regulated by this Act, also includes a person discharged or dismissed whose claims have not been settled in accordance with this Act;
(8) "employer" means the owner of any establishment about the business of which persons are employed, and where the business of such establishment is not directly managed by the owner, means the manager, agent or representative of such owner in the said business;
(9) "establishment" means a shop, a commercial establishment, residential hotel, restaurant, eating-house, theatre or other places of public amusement or entertainment to which this Act applies and includes such other establishment as Government may, by notification in the Official Gazette, declare to be an establishment for the purpose of this Act;
(10) "factory" means a factory as declared or registered under the Factories Act, 1948 (43 of 1948);
(11) "family" means the husband, wife, son, daughter, father, mother, brother, sister or grandson of an employee, living with and wholly dependent on such employee;
(12) "Government" means the *Chief Commissioner, Delhi ;
(13) "holiday" means a day on which an establishment shall remain closed or on which an employee be given a holiday under the provisions of the Act;
(14) "hours of work" or "working hours" means the time during which the persons employed are at the disposal of the employer exclusive of any interval allowed for rest and meals and "hours worked" has corresponding meaning;
(15) "inspector" means an Inspector appointed under section 36 of the Act;
(16) "leave" means leave as provided for under this Act;
(17) "occupier" means a person owning or having charge or control of establishment and includes the manager, agent or representative of such occupier;
(18) "opening hour" means the hour at which a shop or commercial establishment opens for the service of a customer;
(19) "prescribed" means prescribed by rules made under this Act;
(20) "register of establishments" means a register maintained for the registration of establishments under this Act;
(21) "registration certificate" means a certificate showing the registration of an establishment;
(22) "religious festival" means any festival which the Government may by notification in the Official Gazette declare to be a religious festival for the purposes of this Act;
(23) "residential hotel" means any premises in which business is carried on for the supply of dwelling accommodation and meals on payment of a sum of money by a traveller or any member of the public or a class of the public and includes a club;
(24) "restaurant" or "eating house" means any premises in which is carried on wholly or principally the business of the supply of meals or refreshment to the public or a class of the public for consumption on the premises;
(25) "retail trade or business" includes the business of a barber or hair-dresser, the sale of refreshment of intoxicating liquors, and retail sales by auction;
(26) "schedule" means a schedule appended to this Act;
(27) "shop" means any 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 workhouse or work place, whether in the same premises or otherwise, used in or in connection with such trade or business but does not include a factory or a commercial establishment;
(28) "spread-over" means the periods between the commencement and the termination of the work of an employee on any day;
(29) "summer" means the period covering the months of April, May, June, July, August and September;
(30) "wages" means wages as defined in section 2 of the Minimum Wages Act, 1948 (11 of 1948);
(31) "week" means the period of seven days beginning at mid-night on Saturday;
(32) "winter" means the period covering the months of October, November, December, January, February and March;
(33) "year" means the calendar year;
(34) "young person" means a person who is not a child and has not completed his eighteenth year of age.
Comments
Sub-section 2(2) "Child"
Although a child has been defined a person who has not completed his twelfth year of age but it is to be read as fourteen year. It is pertinent to state that the employment of children as domestic servants in dhabas (Roadside eateries), restaurants, hotels, motels, teashops, resorts, spas or in other recreational centres has been banned from October 10, 2006 not only in Delhi but all over India . The ban, notified by the labour ministry has been imposed under the Child Labour (Prohibition & Regulation Act, 1986. The decision has been taken on the recommendation of the Technical Advisory Committee on Child Labour.
The committee had stated that the occupations mentioned were hazardous for children and had recommended their inclusion in the occupations which are prohibited for persons below 14 years under the Child Labour (Prohibition & Regulation) Act, 1986.
Sub-section (5)-"Commercial Establishment"
(i) Name of employer. In the first instance a place in order to fall within the definition of "commercial establishments" must be "premises". Secondly, it should be premises wherein (a) any trade, business or profession is carried on, or (b) any work in connection with or incidental or ancillary thereto is carried on. Sub-clause (b) is only ancillary to (a); Chief Commissioner, Delhi v. Federation of Indian Chambers of Commerce and Industry, New Delhi, 1974 II LLJ 21 (SC): 45 FJR 306: (1974) Lab IC 1004.
(ii) A religious body is not an establishment within the meaning of the Act and, therefore, the Act does not apply to such a body; Sanatan Dharam Sabha v. Johri Mal, 1982 RLR 512 (Del. HC)
Since the definition of commercial establishment includes the institution run for private gain, obvious private educational institutions will be covered under the Act.
Sub-section 13-"Holiday"
Holidays are off days granted by the employer to the employees either voluntarily or compulsorily under the force of law. The Dictionary meaning of a 'Holiday' is 'A day on which ordinary occupations (of an individual or a community) are suspended; a day of festivity, recreation or amusement'. (Oxford English Dictionary, Vol. V). The introduction of paid holidays for workers, both in law, and in practice, is based on the one hand on the 'employees' right to leisure and to the opportunity of developing his personality and, on the other, on the necessity of preserving or restoring his health and strength in the interests of production and service to be rendered. Holidays with pay, if they are properly utilized, may provide a real and complete escape from the ideal means of relaxation and afford abundant opportunity of gaining material and social experience under different conditions and workers generally undertake factory work because of necessity.
Employees return to their jobs with fresh enthusiasm and renewed reserves of strength after spending their holidays under suitably restful conditions. This is confirmed by the conclusion reached in the many recent studies of the psychology or work, especially in the field of productivity. The quicker industrial rhythm and the monotony of the work caused by modern mechanization render it essential to grant regular rest periods if workers are not to succumb to physical overstrain and to the weakening of their morale and if their health and working capacity are to be preserved. However, there are no fixed holidays and/or prescribe under the Act.
Sub-section (14)-"working hours"
The phrase "working hours" or "hours of work" as defined in this sub-section means the time during which the persons employed are at the disposal of the employer exclusive of any interval for rest and meals and "hour worked" has a corresponding meaning. The use of the expression, "at the disposal of the employer" is not without any significance. It indicates that the person so employed must be available to work and to be under the control or supervision of the employer during the working hours and it seems to be immaterial whether the person so employed has worked during the entire working hours or not or whether the employer has taken any work from him. The only obligation appears to be that he must remain at the disposal of the employer throughout the working hours fixed under the Act, excluding of course the time allowed for rest and meals.
Sub-section (16)-"Leave"
The expressions 'leave means leave of absence, that is to say, the permission obtained by an employee from his employer relieving him from the duty of attending the work with or without pay. The dictionary meaning of the word 'leave' being permission, unless such permission is given or leave sought is granted, it cannot be said that the person seeking leave can absent himself from duty in an unauthorised manner; Industrial Tribunal v. Rabindra Nath Sen , 1963 I LLJ 582.
Sub-section (22)-"religious festival"
The expression, "religious festival" has been defined to mean any festival which the Government may, by notification in the Official Gazette, declare to be religious festival for the purpose of this Act. By Notification No. F 12 (54) I & L dated 31st January, 1956 published in the Delhi State Gazette Part V dated 9th February, 1976 at page 69, the Government has declared Holi, Dussehra, Janam Ashtami, Chet Shudi Parwa, Baisakhi, Guru Nanak's Birthday, Guru Govind Singh's Birthday, Id-ul-Zuha, Id-ul-Fitar, Christmas, Lord Mahavir's Birthday as the religious festivals in exercise of the powers conferred on it by this sub-section. The definition has been given in the context of sub-clause (ii) of sub-section (3) of section 16 of the Act which enables the occupier of a shop or commercial establishment to open his shop or commercial establishment on a close day in case such a day happens to coincide with a religious festival.
Sub-section (24)-"restaurant" or "eating house"
"Restaurant" or "eating house" as defined in this sub-section means any premises in which is carried on wholly or principally the business of the supply of meals or refreshments to the public or a class of the public for consumption on the premises. The Lt. Governor, Delhi issued a notification in exercise of the powers conferred on him by sub-section (9) of section 2 declaring all canteens and clubs which were not residential hotels, restaurants, eating houses or other places of public amusement or entertainments, to be "establishments" within the meaning of the Act; Notification No. F 2(11) 79, dated 23rd September, 1976, published in the Delhi Gazette Part IV, dated October, 1976.
Sub-section (27)-"Shops"
The word 'shop' has acquired an expanded meaning. Where in a premises any economic activity is carried on leading to sale or purchase, that premises will have to be held a 'shop' for the purpose of the Act, even though there is no actual giving or taking of goods in such premises. If the business carried on a premises results in having some nexus with the purchase or sale of goods. It is sufficient to be 'shop'; Southern Agencies, Rajamundry v. Andhra Pradesh Employees' State Insurance Corporation, 2001 LLR 93 (SC).
Sub-section (28)-"spread over"
The period between the commencement and the termination of the work of an employee on any day is called "spread over". The spread over in respect of shops is 12 hours and in respect of other establishments is 10 ½ hours.
An establishment can be both, i.e., a shop and an establishment
hile elaborating the scope and meaning of "Shops and Establishments", the Supreme Court has held that a Company having several offices engaged in import and export, clearing and forwarding of cargo, travel and tourism and courier services will be both a Shop and Commercial Establishment; Air Freight Ltd. v. State of Karnataka, 1999 LLR 1008 (SC).
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
3.
Rights and privileges under other law, etc. not affected
Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to at the date this Act comes into force or under any other law, contract, custom or usage applicable to such establishment or an 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.
Comments
A plain reading of this section would go to show that it has a limited operation confined to a particular date, i.e., the date on which this Act came into force. On that day if a right or privilege had accrued to any employee under any other law, contract, custom or usage, and if that right or privilege was more favourable or advantageous to him than those declared under this Act, the employee was entitled to retain that right or privilege.
4.
Exemptions
Notwithstanding anything contained in this Act, the provisions of this Act mentioned in the third column of the Schedule shall not apply to the establishment, employees and other persons mentioned against them in the second column of the said Schedule: Provided that the Government, may, by notification published in the Official Gazette, add to, omit or alter any of the entries of the said Schedule, and on the publication of such notification, the entries in either column of the said Schedule shall be deemed to be amended accordingly.
Comments
The provisions of this section shall be given effect to irrespective of the other provisions of the Act. The provisions of this Act mentioned in the third column of the Schedule shall not apply to the establishments, employees and other persons mentioned against them in the second column of the said Schedule. This section also empowers the Government by notification in the Official Gazette to add to, omit, or alter any of the entries in the Schedule.
*5.
Registration of Establishment
(1) Within the period specified in sub-section (5), the occupier of every establishment shall send to the Chief Inspector a statement in a prescribed form, together with such fees as may be prescribed, containing:
(a) the name of the employer and the manager, if any;
(b) the postal address of the establishment;
(c) the name, if any, of the establishment,
(d) the category of the establishment, i.e. , whether it is a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;
(e) the number of employees working about the business of the establishment; and
(f) such other particulars as may be prescribed.
(2) On receipt of the statement and the fees, the Chief Inspector shall, on being satisfied about the correctness of the statement, register the establishment in the Register of Establishments, in such manner as may be prescribed and shall issue, in a prescribed form a registration certificate to the occupier.
(3) The registration certificate shall be prominently displayed at the establishment and shall be renewed at such intervals as may be prescribed in this respect.
(4) In the event of any doubt or difference of opinion between an occupier and Chief Inspector as to the category to which an establishment should belong, the Chief Inspector shall refer the matter to the Government which shall, after such enquiry, as it may think proper, decide the category of the establishment and the decision thereof shall be final for the purpose of this Act.
(5) Within ninety days from the date mentioned in column 2 below in respect of any establishment mentioned in column 1, the statement together with fees shall be sent to the Chief Inspector under sub-section (1):
Establishments date from which the period of 90 days is to commence
1 2
(i) Establishments existing in municipal areas, notified areas, and cantonment limits of Delhi, New Delhi, Shahdara, Civil Lines, Mehrauli, Red Fort and Delhi Cantonment. The date on which this Act comes into force
(ii) Establishments existing in local areas in which this Act is brought into force by notification under sub-section (4) of section 1.
The date on which this Act comes into force in the local areas concerned
(iii) New establishments in areas mentioned in clauses (i) and (ii) of this sub-section.
The date on which the establishment commences the work
6.
Change to be communicated to the Chief Inspector
It shall be the duty of the occupier to notify to the Chief Inspector, on a prescribed form any change in respect of any information contained in his statement under sub-section (1) of section 5 within thirty days after the change has taken place. The Chief Inspector shall on the receipt of such notice and the prescribed fee and on being satisfied about its correctness make the change in the register of establishments in accordance with such notice and shall amend the registration certificate, or issue a fresh registration certificate, if necessary.
7.
Closing of establishment tobe communicated to the Chief Inspector
The occupier shall within fifteen days of his closing the establishment, notify to the Chief Inspector in writing accordingly. The Chief Inspector shall on receiving the information and being satisfied about the nature of closure remove such establishment from the register of establishments and cancel the registration certificate:
Provided that the Chief Inspector may not, if satisfied that the establishment is likely to re-start within a period of six months, remove it from the Register of Establishment and cancel the registration certificate.
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
8.
Employment of Adults, hours of work
No adult shall be employed or allowed to work about the business of an establishment for more than nine hours on any day or 48 hours in any week and the occupier shall fix the daily periods of work accordingly: Provided that during any period of stock taking or making of accounts or any other purpose as may be prescribed, any adult employee may be allowed or required to work for more than the hours fixed in this section, but not exceeding 54 hours in any week subject to the conditions that the aggregate hours so worked shall not exceed 150 hours in a year: Provided further that advance intimation of at least three days in this respect has been given in the prescribed manner to the Chief Inspector and that any person employed on overtime shall be entitled to remuneration for such overtime work at twice the rate of his normal remuneration calculated by the hour. Explanation.- For the purpose of calculating the normal hourly wage the day shall be reckoned as consisting of eight hours.
Comments
(a) Mode for calculation of overtime wages
For any work in excess of nine hours on any day or for more than 48 hours in any week, overtime wages are to be paid at the rate of double the wages. It is provided therein that where a worker is required to work beyond the normal hours of work or on any day of rest, he shall be entitled to wages at rate of twice his ordinary rate of wages in respect of the overtime work or work done on a day of rest, as the case may be.
The cases where a workman is paid a daily rate present no difficulty. However, when payment is made on monthly scale of pay, the daily rate of wages for a worker can be obtained only by dividing the amount of wages for 30 days by 26. This is done because the workman is entitled to four days as weekly rest during which period he does not work. The reason is that workman actually gets monthly wages for the work done only for 26 days. Thus for a workman, it is the actual receipt for 26 days which is his monthly scale of pay, i.e., 30 days wages. Therefore, a day's wage should mean the result obtained by dividing the monthly wages by actual number of working days, i.e., 26 days. This principle will, however, be applicable in case of such workers who get monthly wages only for the actual number of working days. The formula for calculation of the overtime wages for one hour is to divide the month's wages by 26 into the number of normal working hours and the result so obtained by them then multiplied by two to calculate one hour's overtime wages; P. Radhakrishnan Nair v. K.S.R.T.C., 1983 Lab. IC 276 (Ker. HC). Similarly, a day's wage should mean the result obtained by dividing the monthly wages by actual number of working days; K.S. Verma v. The Madhya Pradesh State Road Transport Corporation, 1979 Lab IC 107: 1979 LLR 150.
In one case before the Supreme Court, the management had prescribed 39 hours and had agreed to pay overtime wages for any work taken in excess of such normal working hours and upto the maximum, i.e., 48 hours at 1½ times the ordinary rate of wages and beyond the maximum, i.e., 48 hours and upto 54 hours at double the rate of ordinary wages and the question posed was where the employer prescribes working hours less than the maximum permissible in the statute, does he incur the obligation to pay overtime wages at the rates prescribed in the Tamil Nadu Shops & Establishments Act, 1947. The Supreme Court allowed the appeals filed by the management and reversed the decision of the High Court directing payment of overtime wages by twice the ordinary rates of wages for any work beyond the prescribed 39 hours and upto 48 hours; Philips India Ltd. v. Labour Court, Madras, AIR 1985 SC 1034: 1985 (1) LLN 633: 1985 (66) FJR 474.
However, the Allahabad High Court has held that if the workers are required to work for additional hours but if such additional hours will be less than 48 hours in a week, the employees will be entitled to wages and not overtime; New Victoria Mills, Unit of National Textile Corporation, Uttar Pradesh Ltd. v. Labour Court (1) Kanpur, 1990 LLR 113.
Claim for overtime should be made within reasonable time. It has been held by Delhi High Court that the claim for overtime by the employee when he was in Iraq or if he could not make his claim there, he should have served a notice in writing upto the employer as soon as he returned to India; Bhandari Builders v. M.K. Seth, 1988 (72) FJR 134: 1988 LLR 91: 1988(1) CLR 279.
It is, however clarified that the Delhi Shops & Establishments Act, 1954 is not exhaustive on all the rights and obligations of the employers and the employees as such the provisions of Industrial Disputes Act, 1947 being Central Act governs the matters.
For instance if an employer who proposes to effect any change prejudicial to the workmen, in respect of any matter specified in the fourth schedule to the Act, should give the workmen concerned twenty one days notice under section 9A of the Industrial Disputes Act. The real object and purpose of section 9A of the Act is to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common interest of the management and workmen in industrial progress, efficiency and increased productivity. This approach on the part of the employer would reflect his harmonious and sympathetic cooperation in improving the status and dignity of the employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence which strives to treat capital and labour as co-sharers and to break away from the tradition of labour's subservience to capital. In order to achieve the object underlying section 9A, it would be more appropriate to place on the fourth schedule read with section 9A of the Industrial Disputes Act, a construction liberal enough to include change of weekly rest days from Sundays to some other week day.
The Fourth Schedule as appended to the Industrial Disputes Act, 1947 provides as follows:
"Conditions of Service for Change of which Notice is to be given
(1) Wages, including the period and mode of payment;
(2) Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force;
(3) Compensatory and other allowances;
(4) Hours of work and rest intervals;
(5) Leave with wages and holidays;
(6) Starting alteration or discontinuance of shift working otherwise than in accordance with standing orders;
(7) Classification by grades;
(8) Withdrawal of any customary concession or privilege or change in usage;
(9) Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;
(10) Rationalisation, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;
(11) Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control."
For instance, in one case, it has been held that increasing of half an hour daily by the employees will amount to change in conditions of service hence notice under section 9A of the Industrial Disputes Act will be imperative; Director of Agriculture v. Dev Raj , 2006 LLR 1019 (HP HC).
9.
Restriction on double employment
No person shall work about the business of an establishment or two or more establishments or an establishment and a factory in excess of the period during which he may be lawfully employed under this Act.
10.
Interval for rest and meals
(1)
The period of work of an adult employee in an establishment each day shall be so fixed that no period of continuous work shall exceed five hours and that no employee shall be required or allowed to work for more than five hours before he had an interval for rest and meals of at least half an hour.
(2) The time for such interval shall be fixed by the employer and intimated to the Chief Inspector a week before such fixation and shall remain operative for a period of not less than three months.
11.
Spread-over
The periods of work on any day of an adult person shall be so arranged that inclusive of his interval for rest or meals as required under section 10, they shall not spread over for more than ten and a half hours in any commercial establishment or for more than twelve hours in any shop.
12.
Prohibition of employment of children
No child shall be required or allowed to work whether as an employee or otherwise, in any establishment notwithstanding that such child is a member of the family of the employer.
Comments
Although a child has been defined a person who has not completed his twelfth year of age but it is to be read as fourteen year. It is pertinent to state that the employment of children as domestic servants in dhabas (roadside eateries), restaurants, hotels, motels, teashops, resorts, spas or in other recreational centres has been banned from October 10, 2006 not only in Delhi but all over India . The ban, notified by the labour ministry has been imposed under the Child Labour (Prohibition & Regulation Act, 1986).
The decision has been taken on the recommendation of the Technical Advisory Committee on Child Labour.
The committee had stated that the occupations mentioned were hazardous for children and had recommended their inclusion in the occupations which are prohibited for persons below 14 years under the Child Labur (Prohibition & Regulation) Act, 1986.
13.
Employment in Young Persons-hours of work
(1) No young person shall be required or allowed to work about the business of an establishment for more than six hours a day.
(2) No young person shall be employed continuously for more than three and a half hours without an interval of at least half an hour for rest or meals and the spread over shall not exceed eight hours on any day.
Comments
The persons who have completed twelve years of age but are below eighteen years fall within the definition of "young persons" as given in section 2 (34) of the Act. The provisions of this section also apply to all kinds of establishments like the preceding section 12 of the Act. Read as a whole, this section contemplates that (i) no young person can be employed or allowed to work in any establishment for more than six hours a day; (ii) there must be an interval of at least half an hour for rest or meals after he has continuously worked for three and a half hours on any day; and (iii) the periods of work in respect of such persons including the time given for rest or meals should not exceed more than eight hours on any day. These restrictions are absolute and the violation of any of these restrictions is an offence punishable under the Act.
14.
Young persons and women to work during day time
No young person, or woman shall be allowed or required to work whether as an employee or otherwise in any establishment between 9 p.m. and 7 a.m. during the summer season and between 8 p.m. to 8 a.m. during the winter season.
Comments
Like preceding sections 12 and 13, this section puts restrictions on the employment of young persons and women during certain hours. It lays down that no young person or woman can be required or allowed to work, whether as an employee or otherwise, between 9 p.m. and 7 a.m. during summer and between 8 p.m. and 8 a.m. during winter. The summer season starts from 1st April and ends on 30th September while the winter season starts from 1st October and ends on 31st March of the following year. The Lt. Governor has withdrawn such exemptions available to: Akbar Hotel, Hotel Oberoi Intercontinental, Ashok Hotel, The Taj Mahal Hotel and Hotel Sidharth, New Delhi
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
15.
Opening and closing hours of shops and commercial establishment
(1)
No shop or commercial establishment on any day, be opened earlier than such hour or closed later than such hour, as may be fixed by the Government by general or special order made in that behalf:
Provided that any customer who was being served or was waiting to be served in any shop or commercial establishment at the closing hour so fixed may be served during the period of fifteen minutes immediately following such hour.
(2) Before making an order under sub-section (1), the Government shall hold an inquiry in such manner as may be prescribed.
(3) The Government may, for the purposes of this section, fix different opening hours and different closing hours for different classes of shops or commercial establishments or for different areas or for different times of the year.
Comments
Opening and closing hours
The opening and closing hours of all shops, within the urban, semi-urban and rural areas of the Union Territory of Delhi, whether comprised in the Municipal Corporation of Delhi, the New Delhi Municipal Committee or the Delhi Cantonment Board, are 9 a.m. and 7 p.m. respectively, while in respect of commercial establishments within such territory, the opening and closing hours are 8 a.m. and 6 p.m respectively, vide Notification No. F. 9(1)/79/LC (S), dated 19th July, 1979 . Same relexations have been given and as such. 1
16.
Close day
(1)
Every shop and commercial establishment shall remain closed on a close day.
(2) In addition to the close day every shop and commercial establishment shall remain closed on three of the National holidays each year as the Government may by notification in the Official Gazette specify.
(3)
(i)
The Government may, by notification in the Official Gazette, specify a close day for the purposes of this section and different days may be specified for different classes of shops or commercial establishments or for different areas.
(ii) Notwithstanding anything contained in sub-section (1), the occupier of any shop or a commercial establishment may, open his shop or commercial establishment on a close day, if such a day happens to coincide with a religious festival, "or the Mahurat day" , the day of the commencement of the financial year of the establishment concerned, provided a notice to this effect has been given to the Chief Inspector at least twenty-four hours before the close day and that in lieu thereof the shop or the commercial establishment is closed on either of the two days immediately preceding or following that close day.
Comments
Long overdue changes in section 15 & 16 of the Act were brought about in September 2004 by the Lieutenant Governor of Delhi. (Please see Schedule I, Item No. 249).
The closing of 11 P.M. is completely optional. Shops owner cannot be forced to keep their shops open till then, and no employee can be made to work till 11 P.M. against his will. The timings depend solely on the needs and wishes of they owners as long as they are within the stipulated time mentioned in the Act, i.e. 9 to 9.30 A.M.-11 P.M.
17.
Period of rest (weekly holiday)
Every employee shall be allowed at least twenty-four consecutive hours of rest (weekly holiday) in every week, which shall, in the case of shops and commercial establishments required by this Act to observe a close day, be on the close day.
18.
Wages for the holiday
No deduction shall be made from the wages of any employee on account of the close day under section 16 or a holiday granted under section 17 of this Act.
If an employee is employed on a daily wage, he shall nontheless be paid his daily wage for the holiday and where an employee is paid on piece rates, he shall receive the average of the wages received during the week.
Comments
It was held that the notification under Minimum Wages Act by Delhi Administration providing that the daily rates of wages include wages for weekly off days will not be attracted since no rates were fixed in respect of wages to be paid on the basis of piece rate; Co-operative Stores Ltd. v. K.S. Khurana, 1988 (1) Delhi Lawyers 452: 1988 (ii) CLR 670.
19.
Time and conditions of payment of wages
(1)
Every employer or his agent or the manager of any establishment shall fix periods in respect of which wages to the employee shall be payable and such person shall be responsible for the payment to persons employed by him of all wages required to be paid under this Act.
(2) No wage period, so fixed, shall exceed one month.
(3) The wages of every employee in any shop or establishment shall be paid on a working day before the expiry of the seventh day of the last day of the wage period in respect of which the wages are payable.
(4) All wages shall be paid in cash.
(5) Where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day after the day on which his employment is terminated.
20.
Deductions which may be made from wages
(1)
The wages of an employed person shall be paid to him without deduction of any kind except those specified in sub-section (2).
Explanation.- Every payment made by the employed person to the employer or his agent or the manager shall for the purpose of this Act be deemed to be a deduction from wages.
(2) Deductions from the wages of an employee shall be of one or more of the following kinds, namely
(i) Fines
(ii) Deductions for absence from duty;
(iii) Deductions for damage to or loss of goods expressly entrusted to the employed person for custody, or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;
(iv) Deductions for house accommodation supplied by the employer;
(v) Deductions for such amenities and services supplied by the employer as the Government may by general or special order authorise;
Explanation.- The words 'amenities and services' in this clause do not include the supply of tools and protective required for the purpose of employment.
(vi) Deductions for the recovery of advances or for adjustment of over-payments of wages, provided that such advances do not exceed an amount equal to wages for two calendar months of the employed person and; in no case, shall the monthly instalment of deduction exceed one-fourth of the wages earned in that month.
(vii) Deductions of income-tax payable by the employed person;
(viii) Deductions required to be made by order of a Court or other competent authority;
(ix) Deductions for subscription to, and for repayment of advances from, any provident fund to which the Provident Fund Act, 1952 (XIX of 1952) applies or any recognized provident fund as defined in section 2(38) of Income Tax Act, 1961 (43 of 1961) or any provident fund approved in this behalf by the Government during the continuance of such approval;
(x) Deductions for payment to co-operative societies or to a scheme of insurance approved by the Government.
(3) Any employer desiring to impose a fine on an employed person or to make a deduction for damage or loss caused by him shall explain to him personally and also in writing the act or omission or the damage or loss, in respect of which the fine or deduction is proposed to be imposed or made, and give him an opportunity to offer any explanation in the presence of another person. The amount of the said fine or deduction shall also be intimated to him.
(4) The amount of fine or deduction mentioned in sub-section (3) shall be such as may be specified by the Government. All such deductions and realizations thereof shall be recorded in a register maintained in a form as may be prescribed.
(5) The amount of fine imposed under sub-section (3) shall be utilised in accordance with the directions of the Government
(6) Nothing in this section shall be deemed to affect the provisions of the Payment of Wages Act, 1936 (IV of 1936).
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
21.
Claim related to wages
(1)
The Government may by notification in the Official Gazette, appoint any Commissioner for Workmen's Compensation Act or other officer with experience as a Judge of a Civil Court or as a Stipendiary Magistrate to be the authority to hear and decide all claims arising out of delayed payment or non-payment of earned wages of an employee employed in any establishment.
(2) Application for any such claim may be made to the authority appointed under sub-section (1) by the employee himself or any Official of a registered trade union authorised in writing to act on his behalf or any legal practitioner or the Chief Inspector for a direction under sub-section (3):
Provided that every such application should be presented within one year from the date the claim for such wages has become payable under this Act:
Provided further that an application may be admitted after the said period of one year when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer, or give them an opportunity of being heard and after such further enquiry, if any, as it may consider necessary may without prejudice to any other penalty to which employer may be liable under this Act, direct the payment to the employee of the amount due to him together with the payment of such compensation as the authority may think fit, not exceeding half the amount so due or Rs. 100, whichever is less.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding hundred rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered:
(a) if the authority is a magistrate, by the authority as if it was a fine imposed by the authority as a magistrate, or
(b) if the authority is not a magistrate, by any magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such magistrate.
(6) Every direction of the authority under this section shall be final.
(7)
Every authority appointed under sub-section (1) shall have all powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).
Comments
Jurisdiction of the Authority
If an employee works for extra hours voluntarily and without any direction by the management, the claim for overtime will not be admissible; Bhandari Builders Pvt. Ltd. v. M.K. Seth, 1988 (15) DRJ 77 (SN).
22.
Leave
(1)
Every person employed in an establishment shall be entitled :
(a) after every twelve months', continuous employment, to privilege leave for a total period of not less than fifteen days;
(b) in every year, to sickness or casual leave for a total period of not less than twelve days;
Provided that
(i)
an employee who has completed a period of four months in continuous employment, shall be entitled to not less than five days privilege leave for every such completed period; and
(ii) an employee who has completed a period of one month in continuous employment, shall be entitled to not less than one day's casual leave for every month.
Provided further that a watchman or caretaker who has completed a period of twelve months in continuous employment and to whom the provisions of Section 8, 10, 11, 13 and 17 do not apply by virtue of an exemption granted under Section 4, shall be entitled to not less than thirty days' privilege leave.
(1A)
(i)
Privilege leave to which an employee is entitled under clause (a) of sub-section (1) or under any such law, contract, custom or usage, award, settlement or agreement as is referred to in section 3, or any part of such leave, if not availed of by such employee, shall be added to the privilege leave in respect of any succeeding period to which he is so entitled, so however, the total period of such privilege leave which may be accumulated by such employee shall not at anyone time exceed three times the period of privilege leave to which he is entitled after every twelve months' employment under that clause or under such law, contract, custom or usage, award, settlement or agreement.
(ii) Leave admissible under clause (b) of sub-section (1) shall not be accumulated].
(2) If an employee entitled to leave under clause (a) of sub-section (1) of this section is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him full wages for the period of leave due to him.
23.
Wages 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 three months, exclusive of any earnings in respect of overtime but inclusive of dearness allowance.
24.
Contracting Out
Any contract or agreement, whether made before or after the commencement of the Delhi Shops and Establishments (Amendment) Act, 1970, whereby an employee relinquishes any right conferred by this Act, shall be null and void in so far as it purports to deprive him of such right.
Comments
Under section 24 no contract or agreement can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act and if such a contract or agreement is made, it would be null and void. In other words, this section makes a contract or agreement under which an employee relinquishes any right conferred by this Act, null and void to the extent it purports to deprive him of the right. A workman will not be legally bound by the contents of the receipt for full and final settlement executed by him if he is waiving any legal dues; Bhandari Builders Pvt. Ltd. v. M.K. Seth, 1988 (15) DRJ 77 (SN).
25
Cleanliness
The premises of every establishment shall be kept clean and free from effluvia arising from any drain or privy or other nuisance and shall be cleaned at such times and by such methods as may be prescribed. These methods may include lime washing, colour washing, painting and disinfecting.
26.
Lighting and ventilation
(1)
The premises of every establishment shall be kept sufficiently lighted and ventilated during all working hours.
(2) Suitable arrangements shall be made for supply of drinking water to the employees.
27.
Power to enforce cleanliness, etc.
If it appears to an Inspector that the premises of any establishment within his jurisdiction are not sufficiently lighted, cleaned or ventilated, he may serve on the employer an order in writing specifying the measures which in his opinion should be adopted and requiring them to be carried out before a date specified in the order.
The Government may prescribe standards in respect of any of these matters.
Dear Mamatha,
Is your organisation a factory or does it fall in Shop and Establishment?
Notice period is mentioned in the appointment letter.
I am attaching extract of Delhi Shops and Establishment Act.
for your information.
Best Wishes,
Col.Rathi
THE DELHI SHOPS & ESTABLISHMENT ACT, 1954
30.
Notice of dismissal
(1)
No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one months' notice in writing or wages in lieu of such notice :
Provided that such notice shall not be necessary where services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges against him in writing.
(2) No employee who has put in 3 months' continuous service shall terminate his employment unless he has given to his employer a notice, of at least one month, in writing. In case he fails to give one month's notice he will be released from his employment on payment of an amount equal to one month's pay.
(3) In any case instituted for a contravention of the provisions of sub-section (1), if a Magistrate is satisfied that an employee had been dismissed without any reasonable cause or discharged without proper notice or pay in lieu of notice, the Magistrate may, for reason to be recorded in writing, award, in addition to one month's salary, compensation to the employee as follows:
(a)
When immediately before his discharge or dismissal, the employee was in receipt of a salary not exceeding Rs. 100 per month, such amount of compensation not exceeding his month's salary, as the Magistrate may direct
(b) When immediately before his dismissal or discharge, the employee was in receipt of a salary exceeding hundred rupees per mensem, such amount of compensation not exceeding hundred rupees, as the Magistrate may direct.
(4) The amount payable as compensation under this section shall be in addition to any fine payable under section 40.
(5) No person who has been awarded compensation under this section shall be at liberty to bring a civil suit in respect of the same claim.
From India, Delhi
Hi Mamatha, You need to serve one month notice if it is a term in your appointment letter. For an early release, you need to pay basic+da for the days, which falls short of month. If you are serving a private organisation, the condition may be waived off depending upon your relations with the employer.
From India, Delhi
From India, Delhi
Hi Mamatha,
Please check your appointment letter, which should normally contain a stipulation, it may be one month or three months. You have to submit your resignation accordingly and serve for one month or three months, as the case may be, or pay in lieu thereof. If the management relieve you early, they have to pay you.
It is of course discretion of the management to relieve you early without being asked you to pay.
BS Kalsi,
Member since August, 2011
From India, Mumbai
Please check your appointment letter, which should normally contain a stipulation, it may be one month or three months. You have to submit your resignation accordingly and serve for one month or three months, as the case may be, or pay in lieu thereof. If the management relieve you early, they have to pay you.
It is of course discretion of the management to relieve you early without being asked you to pay.
BS Kalsi,
Member since August, 2011
From India, Mumbai
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Employee Appraisal Form new.doc