This article is written by Shukla Dutta, a B.A. LL.B. student from the University of Calcutta, Kolkata. This article discusses every aspect of the Maharashtra Shops and Establishment Act of 1948 and how this Act regulated the shops and commercial establishments in Maharashtra when it was in force.
It has been published by Rachit Garg.
Table of Contents
Introduction
The labour class dominates the Indian economy. In the past, the labour class was often discriminated against and exploited for a long time. Due to their poor and weak bargaining power, they were constantly being humiliated by the upper classes in society. So securing their lives and establishing a better lifestyle was necessary. To accomplish the same goal, the central government has enacted a number of laws.
Similarly, states have acts that are only applicable within the boundaries of those states and apply to their labour. One such Act was the Maharashtra Shops and Establishments Act, 1948, of the State of Maharashtra. This Act was introduced after repealing the Bombay Shops and Establishments Act of 1939. The principal reason for introducing the Act of 1948 was to regulate, control, and provide conditions for the employment of workers in shops, residential hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment, and other establishments in Maharashtra.
The Maharashtra Shops and Establishments Act, 1948, was introduced in the year 1948 on January 11, 1948, by the Government of Maharashtra. However, on December 19, 2017, the above-mentioned Act was revoked and replaced with a new Act, namely the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, because of the introduction of the Model Shops and Establishments (Regulation of Employment and Conditions of Service) Bill, 2016, by the Government of India in 2016. According to this Act, the states were free to adopt it with any necessary state-specific modifications. Hence, the State of Maharashtra, being the first State to adopt the Model Shops and Establishments (Regulation of Employment and Conditions of Service) Bill, 2016, introduced the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, with some state-specific amendments to continue to stay at the forefront of industrial development and reforms.
Objective and applicability of the Act
This Act was applicable to all shops, residential hotels, restaurants, eating houses, theatres, other public amusement or entertainment places, and other establishments in the State of Maharashtra. At first, this Act came into force in the local areas mentioned in Schedule I. This Act was also applicable to the areas where the Central Provinces and Berar Shops and Establishments Act, 1947, and the Hyderabad Shops and Establishments Act, 1951, were in force.
At that time, if any citizen wished to open a new shop or a commercial establishment and thus wanted to start a new business within the jurisdiction where this Act was applicable, he had to register himself under this Act.
The main objectives of the Act were to protect the rights of both employer and employee and to convert the unorganised sector into an organised one. The payment of wages, hours of work, terms of service, wages for holidays, leave policy, work conditions, overtime work, intervals for meals and rest, prohibition for employment of children, employment of young persons or women, maternity leave, and benefits thereof, opening and closing hours, closed days, weekly holiday, dismissal, cleanliness, lighting and ventilation, fire safety and precautions, accidents, record keeping, etc.
Important definitions in the Maharashtra Shops and Establishments Act, 1948
Section 2 of the Maharashtra Shops and Establishments Act, 1948, defined the terms used in the Act. Among them are the following important definitions:
Apprentice [Section 2 (1)]
“Apprentice” meant a person who was employed as an employee or who was taking training in an establishment.
Child [Section 2 (2)]
A “child” was defined as someone under the age of 15. But, before the Bombay Shops and Establishments (Amendment) Act, 1977, commenced, if a person was 12 to 15 years old, he was not considered a “child.”
Commercial establishment [Section 2 (4)]
“Commercial establishment” meant an establishment that was involved in or related to any business, trade, profession, or work. The establishment where any legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant, or any other person, or a registered society, or charitable or other trusts (even if it was not registered) used to carry on its business was also considered a “commercial establishment,” irrespective of whether any monetary transaction was involved there or not.
Relevant case law
D.B. Khade vs. Ramsingh Jaysing (1985)
In this case, “Khanna Construction” was a construction house that put up a building. Some parts of the building had been let out for rent, and the total amount of rent was Rs. 88, 000 per month. The residents were tenants of the firm. The firm engaged some workers to provide various household facilities to the residents. The Labour Court held that the business carried out by the firm should have amounted to industry. The size of the establishment and the amount of rent implied that the firm was in the business of providing accommodations for rent. So, the building was a “commercial establishment” within the meaning of Section 2(4) of the Act.
State of Maharashtra vs. Dhanalaxmi V. Meisheri (1981)
In this case, it was held that a maternity home run by a medical practitioner was beyond the powers conferred by the Maharashtra Shops and Establishments Act, 1948, and therefore invalid.
Employee [Section 2(6)]
“Employee” meant any person who was directly or indirectly (through any agency) employed in an establishment, whether for wages or other considerations. Under the purview of this section, an apprentice was also known as an “employee.” However, a member of the employer’s family was not an “employee.”
Employer [Section 2(7)]
“Employer” meant the person who possessed ultimate control over the business of an establishment.
Establishment [Section 2(8)]
“Establishment” meant a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other places of public amusement or entertainment within the jurisdiction of this Act.
Period of work [Section 2(19)]
“Period of work” meant the time duration for which an employee had to work in any establishment to get wages.
Register of establishment [Section 2(22)]
“Register of establishment” meant a register in which all the registrations of establishments under this Act were enlisted.
Registration certificate [Section 2(23)]
“Registration certificate” meant a certificate that was the proof of the registration of an establishment.
Residential hotel [Section 2(24)]
“Residential hotel” meant the premises used for the reception of guests and travellers desirous of dwelling or sleeping therein and included “residential club.”
Restaurant or eating house [Section 2(25)]
“Restaurant or eating house” meant any premises in which the business of supplying meals or refreshments to the public or a class of the public for consumption on the premises was carried on.
Shop [Section 2(27)]
“Shop” meant any premises where goods were sold and where services were rendered to the customers, either by the retailer or wholesaler. An office, a storeroom, a godown, a warehouse, or a workplace mainly used for trade or business, whether on the same premises or not, is also included under this definition.
Relevant case law
Kalidas Dhanjibhai vs. The State Of Bombay (1954)
The fact of this case was that the accused owned a small workshop in which he employed three employees. He used to go to the local mills and collect orders for small parts of machinery in order to manufacture those parts in his workshop. He would deliver them to mills after they were made and thus collect money from the mills. On the premises of his workshop, no transactions used to happen. A question arose about whether the workshop was a shop.
The Bombay High Court held that the workshop was not a shop under the purview of Section 2(27) of the Maharashtra Shops and Establishments Act, 1948.
Homi J. Bhajiwala vs. The State (1960)
In this case, a workplace was used to carry on the business of rendering services to customers. It falls within the inclusive part of the definition of the word “shop” in Section 2(27) of the Act.
Spread over [Section 2(28)]
“Spread over” meant the period between the commencement and the termination of the work of an employee on a given day.
Theatre [Section 2(29)]
“Theatre” meant any premises used for exhibitions of pictures or other optical effects using a cinematograph or other suitable apparatus or for dramatic performances or any other public amusement or entertainment.
Wages [Section 2(30)]
“Wages” meant wages as defined in the Payment of Wages Act, 1936.
Young person [Section 2(33)]
“Young person” meant a person who was not a child and was less than 17 years old.
Registration process
Anyone wishing to open a new shop or commercial establishment to conduct business within the jurisdiction of the Government of Maharashtra was required to register under Section 7 of this Act. The step-by-step procedures for registration are mentioned hereunder:
Step 1
The employer of a new establishment was required to send the following information with the prescribed fee to the inspector of the area concerned within 30 days from the date of the establishment’s commencement of work:
- the name of the employer and the manager (if any);
- the postal address of the establishment;
- the name of the establishment (if any);
- the category of the establishment, i.e., whether it is a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other places of public amusement or entertainment; and
- any additional information so required.
Step 2
After receiving the documents mentioned above and the fee, if the inspector was satisfied with the authenticity of the submissions, the inspector had to register the establishment and issue a registration certificate to the employer, which was proof of the registration. After the registration was complete, the registration certificate needed to be displayed in a conspicuous place in the establishment.
Points to be noted
- The registration certificate was valid for 12 months from the day it was granted or renewed. Before 15 days of the expiry of the registration certificate, the employer was required to apply for the renewal of the registration certificate with the prescribed fee.
- If the employer failed to apply for renewal of the registration certificate within the prescribed time, i.e., 15 days before the expiry date of the registration certificate, and submitted it after the period expired but within 30 days after the expiry date of the registration certificate, he was required to pay an additional fee as a fine (equal to half the fee payable for renewal).
Relevant case law on registration under the Maharashtra Shops and Establishment Act, 1948
Lipton India Ltd. and Ors vs. State of Maharashtra (1996)
In this case, the appellant was a tea dealer. In 1968, he used to store tea in his godowns. One salesman used to go door to door with tea pockets on a manually operated pushcart. But the appellant didn’t register his godowns under this Act. Hence, he was prosecuted.
The challenge was regarding the constitutional validity of the order bringing the appellant within the Act. Dismissal of the writ petition by the High Court led to this appeal.
Without deciding on the challenge, the Supreme Court closed the matter and opined that about three decades would be over shortly. The practice of selling tea from door to door on push carts had ceased. The prosecution was also stale. So, the learned counsel for the State had a chance to state that the appellant would not be prosecuted for the alleged lapses. Hence, the appeal was disposed of.
Some important provisions related to the Maharashtra Shops and Establishment Act
Opening hours
Shops [Sections 10 (1) (a) and (b)]
- The shops selling milk, vegetables, fruits, fish, meat, bread, or any other goods were not permitted to commence their businesses before 5 a.m. every day.
- Other shops were prohibited from commencing their businesses before 7 a.m. daily.
Commercial establishments [Section 13 (1)]
No commercial establishment was permitted to commence business before 8:30 a.m. each day.
Restaurants and eating houses [Section 19 (1)]
The restaurants and eating houses were not permitted to commence their businesses before 5 a.m. No employee was allowed to commence his work before 4:30 a.m. at a restaurant or eating house.
Closing hours
Shops [Section 11 (1)]
The shops dealing with pan bidi, cigarettes, matches, and other ancillary articles were not permitted to continue their businesses before or at 11 p.m. on any day, and other shops were required to close before 8:30 p.m. every day.
Commercial establishments [Section 13 (1)]
No commercial establishments were permitted to remain open after 9:30 p.m.
Restaurants and eating houses [Section 19 (1)]
Every restaurant and eating house had to close before midnight on any given day.
Theatres or other places of public amusement or entertainment [Section 26]
Every theatre or other place of public amusement or entertainment had to close its doors by 12:30 a.m. every day.
Daily and weekly hours of work
Shops and commercial establishments [Sections 14(1) and 14(2)]
No employer could force or require any employee to work more than 9 hours in a day and 48 hours in a week in any shop or commercial establishment. If under any circumstance, an employee was needed to work more than the prescribed time, he was not allowed or required to work more than 6 hours extra in a week.
Residential hotels, restaurants, and eating Houses [Sections 21(1) and 21(2)]
No employer could force or require any employee to work more than 9 hours a day and 48 hours a week in any residential hotel, restaurant, or eating house. If an employee had to work more than the prescribed time, he was not required to work more than 3 hours extra in a day.
Theatres or other places of public amusement or entertainment [Sections 28 (1) and 28 (2)]
No employer could force or require any employee to work more than 9 hours a day and 48 hours a week in any theatre or other place of public amusement or entertainment. If such a situation arose and an employee needed to work more than the prescribed time, such time duration could not exceed 6 hours per week.
Point to be noted: The opening hours, closing hours, and daily and weekly hours of work were subject to change in accordance with the notification of the State Government in their official gazette.
Interval for rest
Shops and commercial establishments [Section 15]
The length of an employee’s workday was fixed in a shop or commercial establishment. Such a duration was not more than 5 hours when the employee worked continuously before taking an interval to rest for at least 1 hour.
Residential hotels, restaurants, and eating houses [Section 22]
An employee was not forced or required to work for more than 5 hours a day in a residential hotel, restaurant, or eating house before he took a minimum 1-hour interval for rest. An employer was not permitted to compel or require his employee to work continuously on any day for more than the time specified in this Act.
Theatres or other places of public amusement or entertainment [Section 29]
An employer was not permitted to compel or require his employee to work continuously on any day for more than the time specified in this Act. Such a period could not have lasted more than 5 hours before he took a 1-hour break.
Spread-over
Shops [Section 16]
- In a shop, the spread-over of an employee was not more than 11 hours a day.
- If in a day, a shop remained closed for a continuous period of 3 hours or more, the spread-over should not have exceeded 12 hours on that day.
Commercial establishments [Section 17]
The spread-over of an employee in a commercial establishment was not more than 11 hours a day.
Residential hotels, restaurants, and eating houses [Section 23]
The spread-over of the employees at residential hotels, restaurants, or eating houses was no more than 12 hours.
Theatres or other places of public amusement or entertainment [Section 30]
An employee in a theatre or other public amusement or entertainment worked no more than 11 hours per day.
Holidays
Shops and commercial establishments [Section 18]
According to Section 18(1),
- Every shop and commercial establishment needed to be closed one day every week.
- At the beginning of each year, the employer was required to prepare a calendar or list mentioning the dates on which the shop or commercial establishment will be closed and send the same to the inspector. Such a calendar or list was required to necessarily be displayed at a conspicuous place in the shop or commercial establishment.
- However if any year, the employer did not make any change to the calendar or list, he was not required to notify such dates again.
- If any shop or commercial establishment was established after the year already began, the employer was required to prepare such a calendar or list as well for the remaining part of the year and notify the inspector within a month of the date on which the shop or establishment comes within the purview of this Act.
According to Section 18(1)(1-A),
- in such circumstances when the employer had to keep his shop or commercial establishment open on a day but the day had already been notified as closed, except where the day was fixed under sub-Section (1-B), a shop or commercial establishment should have remained open if:
- It was closed on any other day of the week;
- If the employer notified the inspector about the closure of the shop or the commercial establishment at least seven days before the substituted day or the day notified as a closed day.
According to Section 18(1)(1-B),
After due discussion with the concerned authority, a local authority was permitted to order the closing of a shop or commercial establishment on a particular day within its jurisdiction. Such a day could have been the same for all shops or establishments or different for-
- Different classes of shops or establishments,
- Different parts of the area or local area, or
- Different periods of the year.
On that day, the concerned shops or commercial establishments had to remain closed.
According to Section 18 (2),
An employer couldn’t call an employee to his shop or commercial establishment or any other place for work on a day on which the shop or commercial establishment remained closed.
According to Section 18(3),
If on any day a shop or commercial establishment remained closed, no deduction from the wages of any employee should have been made for that day.
However, if any employee was used to getting his wages daily, he did not get paid for the days on which such shops or commercial establishments remained closed.
Section 18(3) did not apply to an employee whose total work week was less than six days per week.
Residential hotels, restaurants, and eating houses [Section 24]
Every employee in a residential hotel, restaurant, or eating establishment was entitled to at least one weekly holiday [Section 24 (1)].
If the total work period of an employee was less than 6 days a week, Section 24 (1) did not apply to him.
An employer was not permitted to call an employee at his residential hotel, restaurant, or eating house on a day on which the employee had a holiday [Section 24 (2)].
If any employee was used to get his wages daily, he would not get paid for the days that a residential hotel, restaurant, or eating house remained closed [Section 24 (3)].
Theatres or other places of public amusement or entertainment [Section 31]
Every employee in a theatre or other place of public amusement or entertainment was entitled to at least one day off per week. [Section 31 (1)]
Section 31 (1) did not apply to an employee whose total week of employment was less than 6 days.
An employee of a theatre or other place of public amusement or entertainment or any other place was not considered an employer for work on a holiday [Section 31 (2)].
The employer was not permitted to deduct the wages for a holiday of an employee who was working in a theatre or other place of public amusement or entertainment. However, if the employee was employed based on daily wages, he was not permitted to get paid for the holiday [Section 31 (3)].
Employment of children, young persons, and women
According to Section 32, a child was not permitted to work as an employer or otherwise.
According to Section 33 (2), no employer could force a young person or a young person was required to work in any establishment after 7.00 p.m.
According to Section 33 (3), no woman was required or allowed to work in any establishment after 9.30 p.m.
According to Section 34(1), in any establishment, a young employee was strictly prohibited from working for more than 6 hours a day.
Section 34 (2) stated that a young person could not work as an employee or otherwise in any establishment for more than three hours on any given day unless he took at least 30 minutes for rest.
As Section 34A said, no young person or woman was allowed or required to do work that is dangerous for life, health, or morals.
Leave of the employee
According to Section 35(1)(a), an employee was allowed to take a leave of not more than 5 days for every 60 days if he worked as an employee for at least 3 months. Such leaves were either consecutive or otherwise.
As per Section 35(1)(b), if an employee who had worked for at least 240 days a year was allowed to take a leave for at least 21 days, that leave could have been consecutive or otherwise. Such leave could accumulate for a maximum of 42 days.
Section 35(2) directed that if an employee was allowed leave under sub-section (1) or (1)(a) and was discharged by the employer before he was granted leave, or if he had applied for and been refused the leave and quit the job before getting the leave, the employer was required to pay him the amount payable under Section 36 for the leave.
Section 35(3) granted an employee the right to sue if his employer refused to grant him the leave to which he was entitled. In such circumstances, the employee had a right to give an intimation to the inspector regarding the same.
Wages of the employee on leave
Every employee was allowed to get paid for the duration of his leave. The rate of the wage was equivalent to the daily average of his wages for the days on which he had worked during the preceding three months. Such payment was excluded from the earnings for overtime (if any), as Section 36 of the Act directed. Before a leave begins, the employee is required to be paid half of the total amount for the period of such leave, according to Section 37.
Wages for overtime work
According to Section 63, if at any time such a situation arose when an employee had to work for more time than his usual work time, he was entitled to get more wages at a rate twice his usual rate of wages. The maximum limit for overtime work was not more than 3 hours.
Relevant case law
Panambur Vishnumurti Narayan vs. C.P. Fernandes And Anr. on 19 June 1956
In this case, the appellant was an employee of a bakery. He worked as a delivery man, delivering bread and loaves prepared by the bakery to customers. He claimed that he had worked more than 48 hours every week and was entitled to get more wages for the overtime work under Section 63 of the Bombay Shops and Establishments Act, 1948. The question was whether he was entitled to get the claimed wages. As per Schedule II, Item 8 of the Act, the prohibition contained in Section 14 of the Act prohibiting the employer from making the employee work beyond the limit of work prescribed therein is removed as regards delivery men. It was held that if the employee could provide relevant information proving that he had worked overtime in a particular week, he was entitled to overtime wages as provided in Section 63 of the Act.
The Court also held that the time limit for work under Section 14 of the Act is entirely different from the limit specified in Section 63 of the Act.
Health and safety
This Act mandated safety measures in Chapter VIII establishments.
Cleanliness [Section 39]
The premises of every establishment were required to be kept clean and free from effluvia arising from any drain or privy or other nuisance and needed to be cleaned regularly by prescribed methods, including lime washing, colour washing, painting, varnishing, disinfecting, deodorising, or any other method.
Ventilation [Section 40]
The premises of every establishment needed to be ventilated according to the prescribed standards and methods.
Lighting [Section 41]
For the purpose of working efficiently and productively, the establishments were required to be kept lit when used to run their businesses. If an employer violated this section, the inspector had the authority to serve him with a written order specifying the measures that, in his opinion, should be implemented and ordering them to do so by a certain date.
Precautions against fire [Section 42]
Except in such establishments or classes of establishments as may be prescribed, such fire precautions as may be prescribed were required to be taken in all establishments.
First-aid [Section 42-A]
If in an establishment, a manufacturing process was carried on, a first-aid was required to be kept there.
Powers and duties of the Government authorities
Section 43 of the Act entitles a local authority to enforce the provisions of this Act within its jurisdiction through its Chief Executive Officer or any other officer subordinate to him.
However, in such circumstances, where an area was not under the jurisdiction of any local authority, the State Government was responsible for enforcing the provisions of this Act in that area.
Section 44A laid down that the State Government was entitled to cease the performance of any local authority without giving any further notice stating the reasons for doing so. The state government was then responsible for carrying out the duties and obligations of the defunct local authority within its jurisdiction.
According to Section 45, a local authority was entitled to carry out the duties as ordered by the State Government.
Appointment of inspectors
Under Section 48(1) of the Act, the local authorities were entitled to appoint the required number of inspectors who met the criteria for their jurisdiction.
Further, according to Section 48(2) of the Act, if any area was not under the jurisdiction of any local authority, the State Government could appoint the inspectors. The State Government was also allowed to appoint inspectors for such areas that were under the jurisdiction of any local authority.
Powers and duties of inspectors
Section 49 under the said Act had empowered the officers to –
- Enter any establishment within his jurisdiction at any time, whenever they want to carry out an inspection.
- Seize any establishment if he had proof that the place was being used for carrying out illegal activities.
Punishments for contravention of the provisions of this Act
- According to Section 52, if any employer failed to notify the inspector about a change or the closing of his establishment within the specified time, if any establishment contravened the provisions or rules made under this Act, or if an employee was required to work extra time, or during spread overs and holidays, or a child was required to work in any establishment, or young person or woman was required to work after or before the specified time, or employer and manager refused to produce registers, records, and other required documents during the inspection, the employer and manager were convicted for each offence with a fine of a minimum of Rs. 1000/- to Rs. 5000/-.
- If an employer or manager willfully made any false entry in any register or record, and or willfully omits any entry from the register or record and sent to an inspector, then the employer or manager was punished with a fine of a minimum of Rs. 1000/- to Rs. 5000/-.
- According to Section 57, if a person wilfully interrupted an inspector from exercising any of his powers or resisted an employee from appearing before or being examined by an inspector, then the person was punished with a fine of a minimum of Rs. 1000/- to Rs. 5000/-.
Maintenance of registers and records and display of notices
According to Section 62, an employer had to maintain registers and records as necessary and keep them in the establishment itself. He was also required to display relevant notices as ordered by the State Government in his establishment.
Termination of service
According to Section 66, no employer could dispense with the services of an employee who had been continuously working for at least one year without serving him a minimum of 30 days’ written notice, or wages instead of such notice. On the other hand, if an employee was working for less than a year but a minimum of three months, the employer had to serve him a written notice of a minimum of 14 days’ notice, or wages instead of such notice, before dispensing with his service.
However, if an employer wanted to dispense with the service of an employee due to any misconduct, he was not required to serve him such notice.
Submission of annual report
According to Section 71, within two months after the close of a year, every local authority was required to submit a report showing how this Act worked in the last year within its jurisdiction to the Commissioner of Labour, Bombay.
Was the Maternity Benefit Act of 1961 applicable to women employees in such establishments?
All or any of the provisions of the Maternity Benefit Act, 1961, referred to in the order of the state Government were applicable to women employed for wages in all such establishments, irrespective of what has been said in the said Act.
Judicial Pronouncements on the Maharashtra Shops and Establishment Act, 1948
Vasudev Anant Kulkarni vs Executive Engineer, M. S. E. B. (1994)
In this case, the appellant was a clerk in an establishment of the Maharashtra State Electricity Board, in which the Maharashtra Shops and Establishments Act was applicable. He claimed compensation under the Workmen’s Compensation Act, 1923, for the accidental injury sustained by him during the course of his employment. The question was whether he was entitled to make such a claim.
Their Lordships considered the scope and extent of Section 38-A of the Maharashtra Shops and Establishments Act and held that the claim was quite legally maintainable.
C.N. Bhaskaran vs. Sri S.A. Patil And Others (1985)
In this case, the appellant was a stenographer who got suspended on March 20, 1978, due to a disciplinary inquiry against him. He demanded his entire back wages. Based on the Industrial Employment (Standing Order) Act, 1946, the Labour Court held that the appellant was entitled to 50% of his wages for three months from May 1978, 75% of his wages for the subsequent three months, and full wages for the balance of the period, minus lawful deduction.
The appellant was dissatisfied with that order and filed a writ petition, which was dismissed by the Bombay High Court, and the order of the Labour Court remained valid.
The new Act
The Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017
As we have discussed earlier, the Maharashtra Shops and Establishments Act, 1948, was repealed by the Act of 2017, namely, the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017. We have also discussed that this Act came into existence as a result of the Central Government’s Model Shops and Establishment (Regulation of Employment and Conditions of Service) Bill, 2016, and Maharashtra became the first State to adopt the Model Bill with a few state-specific amendments.
Differences between the two Acts
The Act of 1948 and the Act of 2017 differ in many ways, as the 2017 Act made new changes. Now, we will discuss the differences between the two Acts.
Applicability
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| This Act was applicable to all establishments, irrespective of the number of employees employed. | There is no mention of a section. | Except Sections 7 and 3, this Act is applicable to all establishments where 10 or more workers are employed throughout the State of Maharashtra. | 1(3) and 3 |
Change in terms
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| This Act used and defined the terms “apprentice,” “child,” and “young person.” | 2(1), 2(2), 2(27), and 2(33) | This Act does not talk about these terms. | |
| This Act used and defined the terms “commercial establishment” and “establishment.” | 2(4) and 2(8) | The Act does not use or define the term “commercial establishment.” It only talks about and defines the term “establishment.” | 2(4) |
| This Act used and defined the term “inspector” as the supervisor of a local area. | 2(12) | The Act does not use the term “inspector” and adds a new term, “facilitator,” who works as the local supervisor of a particular area. | 2(5) |
| This Act used and defined the term “employee” as a person who was directly or indirectly (through any agency) employed in an establishment, whether for wages or other considerations. An apprentice was also called an “employee.” However, a member of the employer’s family was not considered an “employee.” | 2(6) | This Act does not use the term “employee,” but uses the term “worker,” which indicates any person (except an apprentice under the Apprentices Act, 1961) employed to do any manual, unskilled, skilled technical, operational, or clerical work for hire or reward, whether the terms of employment are express or implied. | 2(26) |
Change in definitions
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| Defined “commercial establishment” as an establishment involved in or related to any business, trade, profession, or work, including the business premises of a legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant, or any other person, or a registered society, or charitable or other trusts, irrespective of whether any monetary transaction was involved there or not. | 2(4) | Defines “commercial establishment” as an establishment which carries on, any business, trade, manufacture or any journalistic or printing work, or business of banking, insurance, stocks and shares, brokerage or produce exchange or profession or any work relating to, or incidental or ancillary to, any business, trade or profession or manufacture; and includes the establishment of any medical practitioner (including hospital, dispensary, clinic, polyclinic, maternity home and such others), architect, engineer, accountant, tax consultant or any other technical or professional consultant; and also includes a registered society, and a charitable or other trusts, which carries on, whether for purposes of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto; and includes a shop, residential hotel, restaurant, eating house, theatre or other places of public amusement or entertainment, to whom the provisions of the Factories Act, 1948, do not apply, and includes such other establishment as the State Government may specify. | 2(4) |
| Defined that “employer” was the person who was the owner of or had ultimate control over the affairs of an establishment. | 2(7) | Defines that “employer” is the one who owns or possesses ultimate control over the affairs of an establishment, including a partner or members of the firm or association if the establishment is a firm or association of individuals, a director of the company if the establishment is a company, or the person or persons appointed to manage the affairs of the Central Government or the State Government or the local authority owned establishments, as the case may be. | 2(3) |
| Defines “local authority” as a body stated in Schedule I-A and includes any other body that the State Government may specify. | 2(15) | Mentions “local authority” as the Municipal Corporation of Brihan Mumbai constituted or deemed to have been constituted under the Mumbai Municipal Corporation Act and the Maharashtra Municipal Corporations Act and the Municipal Councils constituted, or the Maharashtra Municipal Councils, Nagar Panchayats, and Industrial Townships Act, 1965, and includes any other body which the State Government may specify. | 2(15) |
Registration of establishment
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| It was necessary to register all establishments throughout the State of Maharashtra, irrespective of the number of employees employed.The application for registration was required to be made within 30 days as per Section 7(4). | 7(1) | Establishments with 10 or more workers are required to submit a registration application within 60 days of the establishment’s start date.Establishments with fewer than ten workers are exempt from registration. They are only required to give an intimation that they have commenced their business to the facilitator within 60 days of the commencement of their business. | 6(1) and 7(1) |
Validity of registration certificate
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| The registration certificate of an establishment was valid up to the end of the year for which it was granted.The renewal application for the registration certificate was required to be submitted not less than 15 days before the expiration date of the registration certificate. | 7(2-A) | The registration certificates of the establishments are valid for such a period as the applicant requests, and the maximum period is 10 years.The renewal application is required to be submitted online not less than 30 days before the expiration date of the registration certificate. | 6(3) |
Closing of establishment
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| No particular period was mentioned to notify the inspector regarding the closing of an establishment. It was different for each establishment. | 9 | It is required to notify the facilitator about the closing of an establishment within 30 days after the establishment has closed its business. | 10 |
Opening hours and closing Hours
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| This Act prescribed different opening hours and closing hours for different kinds of establishments. | 10(1), 11(1), 13(1), 19(1) and 26 | Does not prescribe any particular time for the opening and closing of the establishments. It is at the discretion of the State Government which can declare the same for different kinds of establishments. | 11 |
Daily and weekly hours of work
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| Except for young persons, the other employees in the establishments were required to work more than 9 hours a day and 48 hours a week.No young person was required to work more than 6 hours a day. | 14(1), 21(1), 28(1), and 34(1) | No adult worker is required to work more than 9 hours a day and 48 hours in a week.Does not talk about the ‘young persons’. | 12 |
| Women employees were not allowed to work after 9:30 p.m. | 33(3) | Women workers are allowed to work only between 7 a.m. and 9 p.m.However, they might work at any time other than the prescribed time ifthey have consented;the employer provides them with adequate safety and protection of honor & dignity; enough protection from instances of sexual harassment at the workplace; and proper transportation facility from their workplace to their doorstep.However, the State Government can restrict women workers from working at other times than the prescribed period if it is in the public interest. | 13 |
Spread-over
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| Spread-over in shops, commercial establishments, theatres or other places of public amusement or entertainment was not more than 11 hours in a day.In the case of residential hotels, restaurants, or eating houses, it was not more than 6 hours a day. | 16, 17, 30, and 23 | Spread over does not exceed 10 and a half hour in the establishments. | 14 |
Weekly holiday
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| Employees in every establishment were entitled to one holiday a week. | 18(1), 24(1), and 31(1) | Establishments are permitted to continue their business without closing for a full day throughout the week. They are only required to provide their workers with at least 24 hours of holiday each week. | 16(1)(b) |
| Not provided any provision for compensatory off in the cases when the weekly holiday was not given. | If, at any time, an employer fails to provide a holiday to his workers in a week, compensatory off shall be given to him in lieu of the weekly holiday. | 16(1)(c) |
Leave with pay and payment of wages
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| This Act does not mention casual leave. | Every worker is entitled to get 8 days of casual leave in a calendar year. | 18(2) | |
| An employee who had worked for at least 240 days in a year, could get a total of 21 days of paid leave annually. | 35(1)(b) | 1 day of paid annual leave is allowed for every 20 workdays if he has worked for at least 240 days in the preceding calendar year. | 18(3) |
| Annual leave could be accumulated for up to 42 days. | Proviso of 35(1)(b) | Annual leave can be accumulated up to 45 days. | 18(5) |
| If an employer refused to grant leave to his employee, the employee had the right to give an intimation to the concerned inspector regarding the same. | 35(3) | A worker who is denied leave by his employer for which he applied 15 days before has the right to encash the leave for a period of more than 45 days. | 18(6) |
| Every year, 26 January, 1 May, 15 August and 2 October were the paid additional holidays for every employee. | 35(4) | The workers are entitled to get paid festival holidays on 26th January, 1st May, 15th August and 2nd October and four such days as agreed between him and the employer. | 18(7) |
Enforcement and inspection
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| There is no provision for any government official who was appointed to implement the provisions of this Act throughout the State. | The State appoints a chief facilitator who works to implement the provisions of this Act throughout the State. | 28(1) | |
| Local authorities had the right to appoint an inspector for a local area to implement the provisions of this Act within the jurisdiction of that particular area. | 48(1) | The State Government can appoint facilitators for a local area to implement the provisions of this Act within the jurisdiction of that particular area. | 28(2) |
Offences and penalties
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| In the case of contravention of the provisions of this act, the penalties were between Rs.1000/- and Rs.15000/-. | 52 to 57 | Anyone who violates any provision of the Act faces a fine of between Rs. 1,00,000 and Rs. 5,00,000/-. If he continues to violate the provisions, he must pay an additional fine of Rs. 2000/-. However, the total amount does not exceed Rs. 2000/- per worker employed. | 29 to 31 |
| This Act does not mention this. | If an employer violates the provisions of this Act and is found guilty, and the act committed by him causes bodily harm or death to a worker, the employer shall be imprisoned for 6 months or fined a minimum of Rs. 2,00,000/- and a maximum of Rs. 5,00,000/-, or both. | 30 |
Double employment
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| Double employment on a holiday or during leave was not allowed. | 65 | This Act has no provision for double employment. |
Termination of employment
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| If, at any time, an employer wanted to terminate the employment of any employee, he was required to provide:30 days notice period or payment in lieu of the same to employees who had been continuously working for a minimum of 1 year.14 days notice period or payment in lieu of the same to employees who had been working continuously for less than 1 year but more than 3 months. | 66(a) and 66(b) | This Act does not mention termination of employment. |
Identity card of the employees
| Maharashtra Shops and Establishments Act, 1948 | Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 | ||
| Provision | Section | Provision | Section |
| It was necessary that every employer of residential hotels, restaurants, or eating houses provide an identity card to each of his employees. | 25 | The employer must provide an identity card to his workers working at any establishment. It must contain the worker’s blood group and Aadhaar card number, along with the basic details of the employer and worker. | 17 |
New Provisions
The new provisions introduced by the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, have been mentioned hereunder:
- When a worker is working for any confidential position, such as manager or any other supervisory character in an establishment, a list of which is required to be displayed on the website of establishments or at a conspicuous place in the establishment in absence of the website. A copy of the same shall necessarily be sent to the Facilitator thereafter. [Section 3(11)]
- In pursuant to the Equal Remuneration Act 1976, the Act of 2017 introduced a provision regarding no discrimination for women workers in recruitment, promotion, wage, training or transfer. [Section 13(1)]
- Employers shall decide whether to run any department or any section of an establishment in more than one shift. In which shift the workers shall work, shall be decided by the employer. [Section 16(1)]
- The women workers shall get maternity leave according to the Maternity Benefits Act, 1961. [Section 18(8)(b)]
- The establishments employing 50 or more workers necessarily keep crèche facility at the establishments. A group of establishments may also operate a common crèche within 1 km. radius after taking permission from the chief facilitator. [Section 23]
- In the establishments where a minimum of 100 workers work are required to maintain canteen facilities at their establishments. A group of establishments can operate a common canteen if so permitted by the chief facilitator [Section 24].
- Employers can keep records in electronic format and must submit duly signed hard copies of the same to the Facilitators during inspection [Section 25(2)].
Conclusion
The Maharashtra government took a significant step in introducing the Maharashtra Shops and Establishments Act of 1948, with the goal of securing and paving the way for the working class to live a better life. This Act made their lives easier by clearly stating the times to open and close the establishments, the time period for employees to work, spread-overs, rest intervals, and holidays. As provided in this Act, their wages were secured. Children, young people, and women were also shielded from being misused. No employer could contravene the provisions of this Act, and punishments for such contravention were also provided. Thus, this Act protected the lives of the working class before it was revoked in 2017, introducing a new Act, namely, the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, to adapt to the changes of the new era and make the lifestyles of the working class more secure.
Frequently Asked Questions (FAQs)
Is registration of establishments compulsory in Maharashtra?
According to the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017, establishments employing 10 or more workers are required to apply for registration within 60 days after commencing business. However, establishments employing less than 10 workers just need to give an intimation that they have commenced their business
What is the gumasta licence mandatory in Maharashtra?
In Maharashtra, the gumasta licence is a registration that the Municipal Corporation of Mumbai governs according to the Maharashtra Shops and Establishment Act. It is required for doing any kind of business in the state of Maharashtra. It is normally valid for 1 year and could be granted for up to 10 years. Renewal application for this licence shall be submitted a minimum of 30 days before its expiry date.
What is Form ‘F’ under the Shops and Establishment Act, Maharashtra?
The employers of such establishments employing less than 10 workers are required to submit an online intimation in Form ‘F’ informing the commencement of the business.
What is Form ‘G’ in Maharashtra Shops and Establishment Act?
After the employer submits the intimation along with all the required documents, a receipt of the intimation shall be given to him online in Form ‘G’.
How much does gumasta licence cost in Mumbai?
In Mumbai, the cost for the gumasta licence differs based on the number of employees:
| Number of Employees | Fees |
| No employee | Rs. 680/- |
| 1-5 | Rs. 1640/- |
| 6-10 | Rs. 3080/- |
| 11-20 | Rs. 5000/- |
| 21-50 | Rs. 9800/- |
| 51-100 | Rs. 17000/- |
| More than 100 | Rs. 21800/- |
What are the documents required to register shops and establishments in Maharashtra?
The following documents are necessary to register shops and establishments in Maharashtra:
PAN/Aadhar card/driving license/ voter ID, photo of the owner, photo of the shop along with the owner, rent agreement (if rented), electricity bill, and any additional information if required.
Reference
- https://blog.ipleaders.in/new-shops-and-establishments-act-maharashtra/
- http://www.bareactslive.com/MAH/MH253.HTM
- https://lj.maharashtra.gov.in/Site/Upload/Acts/H%20693.pdf
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
