This article was written by Satyanshu Kumari. This article provides an overview of the Act, its important definitions, the procedures for the registrations, how appointments of the inspectors are made under this Act, what kinds of sectors or offices are exempted under this Act, and what penalties have to be given in case of violation of the provisions of this Act. 

Introduction

Every state in the country has formulated its own laws to regulate shops and establishments; one such state is the state of West Bengal, which has enacted its own Shops and Establishment Act, 1963, (hereinafter ‘Act’) which aims to regulate every shop and establishment present in the state to protect the customers and the owners as well. The Act is a state-specific Act which deals with the regulation of the employees’ working conditions in establishments like shops, offices, and other commercial establishments. The Act levied conditions on the employers like they have to provide wages, leave and other benefits to their employees and in case they violate the provisions of the Act they have to pay the penalty. 

The West Bengal Shops and Establishment Act, 1963 was enacted on 2nd April 1963 and became effective from 15th August 1964. The Act covers the whole state of West Bengal. The objective of enacting this Act was social welfare, to regulate terms and conditions of the service of employment, and to preserve the rights of the employees, particularly the unorganised sectors.  The Act contains 25 Sections and is read along with the West Bengal Shops and Establishment Rules, 1964 which was formulated after utilizing the rule-making powers conferred to the State government under Section 25 of the Act. 

Section 1 of this Act delta with the Short title, extent, commencement, and application of this Act. It states that the Act extends to the whole of the state of West Bengal, and applies to the area and classes of shops and establishments to which the Bengal Shops And Establishments Act, 1940 applies, just before the commencement of the 1963 Act, and it also applicable to the areas or classes of shops and establishments as the State Government may, by notification, specify. 

This Act was enacted to regulate the payment of wages, terms of service, working hours, overtime work, opening and closing hours, holidays, leaves, maternity benefits, working conditions of children, rules to regulate child employment, and record maintenance. 

Objective of West Bengal Shops and Establishment Act, 1963

The objective of the West Bengal Shops and Establishment Act, 1963 is to have a law to regulate the shops and establishments, to improve the management of the working conditions and employment in shops commercial establishments, restaurants, theatres, hotels, amusement parks and other public places of amusement. It was to be utilized to maintain the working conditions for the welfare of the labourers like to regulate the leave, paid leaves, holidays, work hours, maternity benefits, conditions of the women and children etc.

This Act was implemented to control workplace conditions and provide statutory rights to employers as well as to employees in the unorganised sectors. The Act incorporates and amends the law governing the working and employment conditions regulations in commercial establishments, shops and other establishments. 

The major objectives of the Act are highlighted in the following pointers- 

• To encourage the state to impose the rules and regulations based on the social culture of the state;
• To properly impose Central laws related to wages, bonuses, working hours and other labour laws in these unorganised sectors;
• To regulate fixed weekly holidays, work conditions, hours of work, overtime work;
• To stop child labour and exploitation of children below the age of 14; 
• To provide a separate set of regulations for young people employed in shops and establishments; and
• To provide benefits to women working in these shops and establishments, such as maternity leave.

Application of West Bengal Shops and Establishment Act, 1963

Sub-section (4) of Section 1 of the Act, states that this Act shall apply to the areas and classes of shops and establishments to which Bengal Shops and Establishment Act, 1940 applied immediately before the commencement of this Act.  Further, this Act shall also apply to such other areas or to such other classes of shops and establishments as the state government of West Bengal may notify on this behalf. 

Section 26 of the Act mentions that the previous Act i.e. The Bengal Shops And Establishments Act, 1940, governing the shops and establishments in the state of West Bengal has been repealed.

When is West Bengal Shops and Establishment Act, 1963 not applicable 

Though the West Bengal Shops and Establishment Act, of 1963 applies to shops and establishments situated under the territory of West Bengal, there are certain institutions to which this Act is not applicable. The following is the list of sectors or offices as mentioned in Section 4 of the Act, to which this West Bengal Shops and Establishment Act, 1963 does not apply:

• Institution made for the care and treatment of infirm, sick, poor or mentally challenged persons;
• Reserve Bank of India, or railway, or any local administration, office of or under the Central or State Government;
• Airline, water transport, tramway, automobile service, postal service, telephone, public sanitation or conservation, or any industry, business, or activity which provides electricity, light, or water to the public;
• Refreshment stalls or rooms at the airport, railway station, dock;
• Stalls or shops at any public bazaar (market) or fair held for charity purposes.

Sub-section (2) of Section 4 of the Act, states that the State Government can specify a certain class of people or a certain class of shops and establishments to which certain provisions of this Act will not be applicable. The state government has the authority to grant exemptions to certain persons or shops and establishments. If the state government thinks fit that it is in the public interest to provide an exemption to those classes of people or classes of shops and establishments, then it may issue a notification to that effect. In that notification, the state government may also specify certain conditions, upon fulfilling which, the exemption can be granted. It should be noted that such an exemption cannot be granted from the provisions of Section 8 and Section 9 which relate to ‘Special provisions of a young person’ and ‘Restriction on employment of children’, respectively. 

The following class of person or shops and establishments can be exempted by the state government of West Bengal by issuing a notification to that effect- 

• Any class(s) of shops and establishments either generally or on such occasion(s), in such area(s) and of such period as may be specified in the notification,
• Any class(s) of a person employed in shops and establishments: 

• in the post of managerial or confidential capacity;
• as a traveller, canvasser, messenger, watchman, or caretaker; or 
• in exclusive connection with the customs examination, collection, despatch, and delivery of goods from or to the booking office for transport by rail, road, air, dock, or airport. 

Important definitions in West Bengal Shops and Establishment Act, 1963

• Establishment: Section 2(5) provides for the definition of the word ‘establishment’, which means any establishment established for public amusement or entertainment, including theatres, restaurants, hotels, cinemas, etc., and includes such other class or classes of concern or undertaking as the state government may, after taking into consideration the nature of their work, by notification, declare to be, for this Act, establishment for public entertainment or amusement, but does not include a shop or a commercial establishment. 
• Commercial Establishment: Section 2(2) defines what a commercial establishment is. It means an advertising, commission, forwarding or commercial agency, or a clerical department of a factory or any industrial or commercial undertaking, an insurance company, or any business, trade or profession with or incidental or ancillary to, any business, medical practitioner, architect, engineer, and includes such other class or classes of concerns or undertaking as the state government may, after taking into consideration the nature of their work, by notification, declare to be commercial establishment, for this Act, but does not include a shop and establishment for the public entertainment or amusement. 
• Shops: Section 2(13) provides for the definition of shops. Shop as per the Act means that any premise used wholly or in parts for the sale of service to the customers or the wholesale or retail sale of the commodities or article, either in cash or on credit, and also includes any office, storeroom, godowns or the warehouses, whether in the same premises or elsewhere used in connection with such sale or with the storage of the commodities or articles for sale or storage of the commodities or articles, such other class or classes of premises as the state government may, after taking into consideration the nature of the work carried out there, by the notification, declare to shop for this Act, but it does not include an establishment. 
• Shopkeeper: Section 2(14) provides for the meaning of shopkeeper. It means that a person owing or in charge of the business of a shop, including an agent or the manager of, and any other person acting on behalf of such person in the general management or control of a shop. 
• Women Workers: Any woman under Section 10 of the Act, other than those working in cinema or theatre, shall not work after 6 p.m. in any place for public amusement or entertainment and after 8 P.M. at shops and establishments. Maternity benefits are to be provided to the women. Paid sick leave with a medical certificate should be provided for 14 days at half pay. In total, the maximum accumulation is 56 days.
• Wages: Under Section 2(15), wages under this Act are defined as per the definition provided in the Payment of Wages Act, 1936. Apart from the applicability of the Payment of Wages Act of 1936, other points to be noted are: if overtime work has been performed by any workers, they are required to be paid double the rates of the regular wages they receive. In case, there is non-payment of the wages within the specified time or improper deduction, such a person can file a complaint with the component authority within 6 months. 

Registrations of shops and establishment

Every shopkeeper or employer is required to forward an application for registration of shop and establishment. 

• During the period as notified by the state government in the event of shops and establishments that came into operation on the date this Act takes effect;
• In case there is any new establishment or shop, the shopkeeper or the employee applies for registration under this Act to the registering authority with requisite fees to the registering authority. 

The application sent by the shopkeepers or the employers shall contain the following points:

• Name of the shopkeeper or the employer;
• Postal address of such shop and establishment;
• Name of the shop and establishment;
• The declaration has to be given of weekly closing days in the case of shops;
• Such other particulars as may be prescribed.

If the registration authority is satisfied by the correctness of particulars provided by the shopkeeper or the employers, it shall register the shop or the establishment in such manner as may be prescribed and issue a certificate of registration in the prescribed form to the shopkeeper or the employer. 

Every shopkeeper and employer must show this registration certificate. For any kind of extension registration concerning the certificate of registration, a shopkeeper or the employer must fill out the required form and pay the relevant fee to the registering authority. This has to be done within 30 days of the certificate’s expiration date, which is 3 years from the date of issue. If there is a liquidation, the shopkeeper, or the employer, needs to inform the relevant authority in a specified format within 15 days. 

Application for registration

Rule 4 states about the application for registration of shops and establishments. If the shops and establishments are not in existence on the date of commencement of the Act, then the shopkeeper or the employer shall under sub-section (1) of Section 16, appeal for the registration within 30 days from the date on which the shop or establishment commences its business. 

Rule 4 is a complimentary provision about the application for registration. It provides that, the shopkeeper or the employer shall apply for the registration within 30 days from the date on which the shops or the establishments commences its business. The Rule further states that the application under Section 16(1) shall make triplicate of Form B, and should be accompanied by a requisite fee. Upon satisfaction by the registering authority on the correctness of the application, shall register the shops and establishments. 

Inquiry on the application for registration

Rule 10 states that the registering authority may satisfy himself about the correctness of any information furnished in any application notice, and can hold an inquiry as he deems necessary for his satisfaction in such manner as he considers fit. Sub-Rule (2) further provided that all fees payable under these rules shall be paid in revenue stamps of a required value affixed on the application or the notice, and each stamp shall be cancelled by the registering authority by punching a hole in the middle. 

Employment under West Bengal Shops and Establishment Act, 1963 

To maintain and run either a shop or a commercial establishment, employers need to hire people for the same, but there are certain restrictions as he cannot employ children, has to provide maternity benefits to female employees, and others. Section 17, Section 18 and under rules 52 to 55 of the West Bengal Shops and Establishment Rule, 1964 contains the provision related to employment in shops and the establishment and maintenance of records of such employment. 

Records of employment 

Section 17 states that the shopkeeper or the employees need to keep and maintain a register of the employees in a prescribed form, and such register, record or documents on notice shall be produced before the inspector on demand. It is also mentioned that such a register shall be signed by a person employed in such a shop or establishment. Rule 52 prescribe ‘Form W’ for the maintenance of record of the employees. It also mandates that records of employees must be kept up to date 

Further, Rule 55 also constrain a corresponding provision related to special register and records in respect of persons employed in shops and establishments which shall be presented by employers if so required by government order in writing. 

Letter of appointment

Section 18 of the West Bengal Shops and Establishment Act, 1963, mentions that the shopkeeper or the employer shall furnish a letter of appointment to every employee in such form as may be prescribed (Form X). Rule 53 constrain additional provision related to the letter of appointment, The Rule prescribes that in case the person is already an employee of the shops or the establishment, the employer has 60 days to provide the letter of appointment. 

Further, this Rule states that if employer shall not be required to issue a letter of appointment to an already employed person if he has been provided with a letter that constrains all particulars as Form X contains. 

Particulars of the letter of appointment 

As per Form X, a letter of appointment to a prospective employee of a shop and establishment must contain the following particulars- 

• Name of shop/establishment
• Name of shopkeeper/employer
• Registration No.
• Name of employee
• Employment type- (temporary, permanent, casual basis etc.) 
• Pay scale- Wages per month, per week or per day. Pay would include (i) Basic pay; (ii) Dearness allowance; and (iii) Other allowances
• Signature of shopkeeper/employer

Employment of young people and children 

Under Section 2(17), a young person means a person who has completed his 12th year but has yet to complete his 15th year. As per the Act, a young person cannot work more than 7 hours per day or 14 hours per week. Section 8 provides special provisions for young persons’ employment. It states that any young person shall not work for more than seven hours in a day or for more than forty hours in any one week, in any shop or establishment. Further, it provides that the work so done by them shall fixed in such a manner that no young person shall work for more than four hours before he has an interval for rest for at least one hour. 

Please Note: There are certain restrictions under Section 10 of the Act that, no young person shall be required or permitted to work in any shop or establishment after 8 P.M. 

Benefits to the young person 

Section 8A of the West Bengal Shops and Establishment Act, 1963 provides that young persons employed in shops and establishments shall be entitled to benefits provided to them in any other statute for the time being in force. It should be noted that these benefits are in addition to benefits given under this Act and not interrogation of the same. 

Examples of benefits include school education, residency in place of work, etc.

Prohibition on the employment of children 

Section 9 of the Act provides for a complete ban on the employment of children in shops and establishments situated in West Bengal. It states that no employers shall employ children who have not completed the age of 12 in any shops or establishments.  

Employment of women 

Section 10 of the West Bengal Shops and Establishment Act. 1963 states that no women shall be allowed to work in any establishment of public amusement or entertainment, except in cinema or theatre after 6 PM. Further, the women are also not allowed to work in any shops and establishments after 8 P.M. 

There are certain rules mentioned under the West Bengal Shops and Establishment Rules, 1964, concerning the employment of women, providing them with benefits such as maternity benefits. 

Prohibition on employment of pregnant women during a certain period

Rule 22 of the West Bengal Shops And Establishments Act, of 1964, prohibits the employment of pregnant women during certain periods.  It states that shopkeepers or employers knowingly cannot employ pregnant women, especially 6 weeks after the delivery of the child or miscarriage. Further, no pregnant woman shall be required by the shopkeeper or employer concerned to do any work which hampers the pregnancy in the following way- 

• The Act is arduous or involves long hours of standing, or 
• Act is of such a nature which is likely to interfere with the pregnancy or the normal development of the foetus, or 
• The Act is likely to cause miscarriage or otherwise adversely affect her health.

The period for such specific prohibition would be 1 month immediately preceding 6 weeks, before the date of her expected delivery; or any period during the said ‘6 weeks’ for which the pregnant woman does not claim the maternity leave under Rule 24.

Maternity benefit

Rule 23 provides maternity benefits to women employed in shops and establishments in West Bengal. It states that every woman is entitled to maternity benefits for the period of her actual absence from work for six weeks immediately preceding the day she is delivering the child, which includes that day and the six weeks immediately following the delivery day.

The shopkeeper or the employer employing pregnant women will be liable to pay a sum of money for the benefit of such a woman, which would be calculated at the rate of average daily wages, for a period specified above. It should be noted that the average daily wage would be the same amount as was payable to her in the past 3 months, i.e. 3 months before she took maternity leave. 

She is entitled to such benefits only if she has worked for 160 days in an establishment in the last 12 months immediately preceding the date of delivery of the child. For calculation of these 160 days, the period for which she had been laid off under the meaning of Section 2 (kkk) of the Industrial Dispute Act, 1946 shall also be taken into account. 

Maternity benefit in case of death of mother

The maximum period for which a pregnant woman will be entitled to maternity benefits is 12 weeks, i.e. 6 weeks before the delivery date and 6 weeks after the delivery date. However, if the pregnant woman dies during this period, then the maternity benefit would be payable till that day only, which shall also include the day on which she died.

Further, It should be noted that while calculating the number of days for maternity benefit when the child also dies, the date on which the child dies shall also be taken into account. 

In case, a woman dies before receiving her maternity benefits, and she is entitled to the same, the shopkeeper or the employer has to give it to the person nominated by the woman or the legal representative of the woman in case there is no such nominee.  

Payment of maternity benefit 

And under Rule 24 she has to give notice to her place of work to receive the maternity benefits. Such notice should mention the date the woman will be absent from work and what will be the expected date for her delivery. If such notice is not provided by the woman, she won’t be disentitled from the benefits. Further, she is also entitled to be absent during her pregnancy and is entitled to maternity benefits under this rule, certified by a registered medical practitioner as the case may be. 

It is provided that, if a woman suffers a miscarriage, she has to produce a certificate from a qualified medical practitioner or midwife, after that she is entitled to leave with wages at the rate of maternity benefits for six weeks immediately following the date of her miscarriage 

Recovery of maternity benefit

In cases where the maternity benefits are withheld by a shopkeeper or an employer, the provision of Section 14 and corresponding provisions in these rules relating to the recovery of wages shall mutais mutandis apply to the recovery of such maternity benefits. 

Leave of absence during pregnancy

The leave taken by a pregnant woman during the period she is entitled to claim maternity benefits would be seen as authorized leave. However, it must be shown that leave was taken due to illness arising out of pregnancy or confinement. 

No dismissal during such absence 

Rule 28 states that the shopkeeper or the employer can not discharge or dismiss any woman employee during or on account of such absence or to give her such notice of discharge or dismissal as will expire during such absence or any of the conditions of her service to the disadvantages, it is unlawful for the shopkeeper or the employers to do so. 

Further, Sub-Rule 2(a) states that any discharge or dismissal of the woman at any time during her pregnancy except by the order in writing communicated to her and on the grounds of misconduct, shall not have any effect of depriving her of any maternity benefits if, but for discharge or dismissal, she would be entitled to such benefits. 

Sub-Rule 2(b) explains that any woman deprived of the maternity benefits, may within 60 days from the date on which the order of such deprivation is communicated to her, appeal to the officer or the authority appointed under Sub-Section (2) of Section 14, within whose jurisdiction the shops or the establishment is there, any decision made by such officer or the authority shall be final, whether the woman should be deprived of the maternity benefits or not. 

Termination of service under West Bengal Shops and Establishment Act, 1963

Sub-section (1) of Section 15 of the Act states that if the person is employed in any shop or establishment for not less than one year in such shop or establishment, then he shall not be terminated without giving him one month’s notice in writing. In case of termination of service, the worker so terminated shall be entitled to wages for the period the worker was on privileged leave. This provision is given in Section 12. 

Notice for the termination of the service

Section 15 provides for the notice of termination of service, under which it is provided that the employer has to provide one month’s notice and has to provide the reasons if the employee has been working continuously for not less than one year. 

The notice must state the reason for such termination. The employed person shall not be terminated until the period of notice has expired or until he has been paid, in lieu of such notice, wages for the period of such notice.

Appeal against termination of the service

Section 15(2) of the Act states that the person has the right to appeal to such authority within a prescribed period. He shall have the right to appeal if the ground of termination of the worker was either unreasonable or he has not been guilty of any misconduct, provided that his termination is on such ground. Section 15(3) states that the decision of the Appellate Authority on such ground will be final.

Hours of work under West Bengal Shops and Establishment Act, 1963 

Any workers or employees can work up to a certain time only, for instance for up to 8 hours in any corporate horse or office (establishments) or up to 12 hours in any factory, shop etc. With the same reasoning, the Act has provided time duration till when an employer or the shopkeeper can make an employee work. If they make them work overtime, then how their wages will be calculated? It is provided under Sections 5, 6 and 7 of the Act. 

In shops 

Section 6 of the West Bengal Shops and Establishment Act specifies the provision for definite hours of work to be done in a shop. It states that the shops shall open at 8 A.M. and the closing time shall not be later than 8 P.M. However, this time limit is not absolute. It means that the state government is authorized to alter this time frame if is it in the public interest to do so. It should be noted that to change the hours of work in shops, the state government has to issue a notification to that effect. The state government may change the limits of the hours of opening and closing of the shop, either generally or for any particular area, or can fix uniform hours of opening and closing of all or any class or classes of shops in any particular area.

Overtime in shops in exceptional circumstances

Section 6(2) states no person is allowed to work for more than eight and a half in a day and a total of forty hours in a week or after the hour of the closing of such shop. However, when there is stock-taking, making up the account or any such business operation takes place in the shop or the establishment, the person employed in the shop may be required to work overtime in such shop. While doing overtime in exceptional circumstances, the total number of hours of work including the overtime work shall not exceed 10 hours in any day and the total number of hours worked by him shall not exceed 120 hours in any one year. 

Provision of intervals in shops

Sub-Section (3) states that no person shall be required or permitted to work in such shops for more than five hours and a half in one day unless he has been allowed an interval for the rest of one hour. Sub-section (4) of the Act states that the period for work and interval for the rest of every person who is employed in the shop shall be arranged by the shopkeeper so that they do not extend over more than 10 hours and a half in any one day. 

In establishment 

Section 7 of the West Bengal Shops and Establishment Act, deals with the hours of work in an establishment. It states that in any commercial establishment like a hotel, restaurant, eating house or café, the closing hour shall not be later than 11 P.M. 

A person employed in an establishment shall not be required or permitted to work in such establishment for more than eight hours and a half in any one day or more than forty hours in one week or after the hour of the closing of such establishment. 

Overtime in establishment in exceptional circumstances

It is provided in Section 7 that an employer person shall not be required to work more than 48 hours a week. However, in some exceptional circumstances, any person employed in any establishment may be required or permitted to work overtime in such establishment. It is provided that the total number of hours of his work which includes overtime work shall not exceed 10 hours in one day, and the total number of hours worked overtime by him shall not exceed 120 hours in any one year. 

Provision of Intervals in the establishment

Sub-section (3) of the Act states that no person in the shop or establishment shall be permitted to work in such establishment for more than five hours and a half in any one day unless he has been allowed an interval to take rest for one hour during the day.

Sub-Section (4) of the Act states that the period of work and interval for the rest of every person employed in any establishment shall be arranged by the employer of such person so that together they do not extend more than ten hours and half any day. 

Holidays under West Bengal Shops and Establishment Act, 1963 

Section 5 of the Act states about the holiday in any shop or establishment. It provides that in each week, every shop or establishment shall remain closed entirely for one day. Every employee in a shop or an establishment shall be allowed a holiday, at least one day and a half day preceding or next following such day.  

Wages in holidays

Sub-section (2) of the Act provides that there will be no deduction on account of any holiday and the wages of any person employed in a shop or an establishment, and even if such person is employed based on no work, no pay, then he shall be paid for such holiday the wages which he would have been entitled to had he not been allowed the holiday. 

Determining the day of the holiday

The day and a half during which a shop or an establishment is entirely closed each week shall be determined from time to time by the shopkeeper or the employer, and it shall be specified by them in the notice, and it should be displayed in a conspicuous place in the shop or the establishment. Provided that the day and a half which so determined shall not be altered more than once in any year. 

Sub-Section (4) states that, as the state government thinks fits in the public interest by notification, specify any particular area and a day or both the day and the half-day during which all the class or classes of shops or establishments in such area shall be closed entirely and thereupon the day or both day and half day, as the case may be, so specified, shall be deemed to have been determined under the sub-section (3) by the shopkeeper or the employer of every shop or establishment of such class(s) in such area, and the provision of the Act shall apply accordingly. 

Notice for weekly closure

Rule 11 states that it is required by the shopkeeper or the employer to display the notice under sub-section (3) of Section 5 and a copy of such notice and the changes in such notice shall be sent immediately, where the shop or the establishment is situated, if in Calcutta then to the Chief Inspector and any other area to the inspector having the jurisdiction over such area.

Notice for weekly holiday

Rule 12 provides that a shopkeeper or an employer shall display in his shop or establishment, specifying the day of the week on which the person employed shall allow a full holiday and half holiday, and shall preserve it for one year for inspection. It further states that the notice shall be displayed before the cessation of work by the employees affected thereby on the Saturday immediately preceding the first week in which the notice is to have effect. Sub-rule (3) provides that a copy of the notice shall be provided to the chief inspector if the shop and establishment are in Calcutta and to the inspector having jurisdiction over such other area. 

Leave under West Bengal Shops and Establishment Act, 1963

Section 11 of the Act and Rules 14 to 19 state how employees can take leave in any shop or establishment. There are various kinds of leave which can be granted, namely, privileged, sick, casual, and leave for female employees. For all such leaves, employers of shops and establishments have to maintain a register under Rule 22. It states that every employer shall maintain a leave register and every case of application for leave, whether granted or refused, shall be entered in the corresponding part of the register immediately after a decision is taken on the application. 

Type of leave in shops and establishment

Following are the types of leave which are granted under the West Bengal Shops and Establishment Act, of 1963. 

Privilege leave 

Section 11 of the Act states that an employee is entitled to take leave with full payment for 14 days if he has done continuous service in a year.

Rule 14 of the Rules states the procedure for the application of privileged leave. Under Rule 14, the employee has to provide in writing an application to the shopkeeper or employers, as the case may, at least 10 days before he intends to take leave, and such shopkeeper or the employer shall issue the order on the application within a week of such application.

Provided that the shopkeeper or the employers, may, if satisfied that the leave is required for the urgent matter, waive 10 days notice which is ordinarily required and pass order accordingly. 

Sick leave 

Section 11(b) specifies the provision of sick leave. It states that an employee can take sick leave for up to 14 days with half-payment, but he has to submit a medical certificate from a registered practitioner under the Bengal Medical Act, of 1914 or any other law for the time being in force. 

Sick leave can be granted and extended when an application for the same is presented in writing along with the medical certificate from the registered practitioner, he has to inform as soon as possible in writing.  The employer may require the worker to be examined by another registered medical practitioner nominated by him. If the worker seeking sick refuses to submit to such examination or is certified on such examination to be fit for duty, then the shopkeeper or the employer concerned may refuse to give leave or extension thereof, as the case may be.

Casual leave

Apart from privileged leave and sick leave, employees of shops and establishments are also entitled to take casual leave under Section 11(c). An employee can take casual leave for up to 10 days. Under casual and sick leave Rules 16 states that, for casual leave, the employee cannot be absent for more than 3 days except in case of sickness. For casual leave, previous permission of the shopkeeper or employer is necessary to be obtained. 

However, when it is not possible to obtain previous permission from the employer for casual leave, then the worker may just inform the employer of the reason and duration of leave in writing. 

Leave for female workers

Section 11(d) provides that female employees are eligible for maternity leave as may be prescribed by the Act as well as the Rule. 

For maternity benefits, please refer

Refusal of leave 

Rule 18 states that in case the employees have asked or prayed for leave it shall not ordinarily be refused, and no part of privilege leave by a person employed in a shop or an establishment shall be allowed to lapse by the refusal of the shopkeeper or the employer. 

Provided that the shopkeeper or the employer may regulate the privilege of leave according to the convenience of work of the shop or the establishment concerned and such leave shall be granted in case the employee concerned wants to avail the leave and does not want to accumulate the leave within first 12 months or 18 months following 12 months during which the leave has been granted. 

Leave pass

Rule 17 states that if any leave other than casual leave, asked for, is granted, then a leave pass which shows the nature and period of leave granted shall be issued to the applicant. It further states that every person employed praying for the leave shall intimate it to the shopkeeper or the employer concerned his address during the period of leave and if there is any change in the address, the shopkeeper or the employer shall be informed within 3 days of such changes.  

Extension of leave 

If an employee wants to extend his leave, he shall apply in writing to the shopkeeper or the employer concerned, and they shall send in writing their reply either granting or refusing the extension of the leave prayed for the applicant at the address given by the employee under Rule 17 before proceeding to the leave.

Unauthorized absence

Rule 20 states about unauthorised absence. If an employee remains absent without leave or beyond the period his leave was originally granted or subsequently extended, the shopkeeper or the employer can take disciplinary action against the employee, by issuing him notice requiring him to explain the reasons in writing within 15 days of issue of the notice. 

Sub-Rule (2) (i) states that if the shopkeeper or the employer is satisfied with the reasons provided by the employee, regularised the period of unauthorised absence by the grant of such leave as may be due to the person employed and treat the remaining period of absence, if any, as absence without wages. It further provides that if the employer is not satisfied with the reason provided by the employee, the latter may treat the period of unauthorised absence of the person as absence without wages even though leave with wages may be due to him or terminated his lien on his appointment, depending on the gravity of the case. In case the employee does not submit any explanation to the shopkeeper or the employer, within the required period, the latter may terminate the employment of such person. 

Sub-Rule 3 provides that the notice under sub-rule(1) shall be served by the registered post to the address given under Rule 17, or in the absence, to the address last given by the person employed to the shopkeeper or the employer. 

Payment and recovery of wages of person employed under West Bengal Shops and Establishment Act, 1963 

‘Wages’, as we all know, is an amount that is payable to any worker or employee for their hard work and dedication they have put into working in a particular job. Wages under the Minimum Wages Act, of 1948 means ‘all remunerations, capable of being expressed in terms of money, which would, if the term of contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or work done in such employment.’

Payment of wages for overtime work

Overtime work means the work done in hours which is not generally scheduled as working hours. Section 6 and Section 7 of the Act specify the working hours for shops and establishments, respectively. If any work is done by any employed person beyond that prescribed working hour, it would be constituted as overtime work. 

An explanation attached to Section 13 also specifies the meaning of ‘overtime work’, It states that overtime work shall also include work done on the day which is declared as a national holiday by the state government by issuing a notification to that effect. 

Under Section 13 of the Act, employers have to pay their employees for overtime work, as the case may be. In such cases, the payable wages shall be calculated at twice the ordinary rate of wages payable to him, and such ordinary rate of wages shall be calculated in such manner as may be prescribed. Further, if any higher rate for overtime is fixed in any agreement, award, custom, or convention then that higher wages would be applicable and not the conventional concept of twice the normal wage. 

Rule 40 requires the employer to maintain a register in which he will mention the details of overtime work done in a month by each employed person.

Occasions when overtime work is required

Rules 37 provides that every person working in any shop may be required to work overtime if there is any such requirement at his workplace. Every employed person may be required to work overtime during the few specials. The period of such overtime shall be as prescribed, and it will end on the day of that occasion. Following are the occasions in which overtime is required because of a sudden increase in workload- 

• Durga Puja: A period not exceeding 28 days 
• Dewali: A period not exceeding 7 days 
• X’mas: A period not exceeding 7 days.
• Id-ul-Fitr: A period not exceeding 7 days 
• Any other occasions as the State Government may, after taking into consideration their nature and importance, specify on this behalf by notification, for such period as notified.

Notice for overtime requirement

Under Rule 38 it is provided that the employer has to give notice if he has an intention to employ a person for overtime on any day at least twenty-four hours before such day. He has to inform the chief inspector in case his shop is in Calcutta and if it is outside Calcutta, then to the Inspector.  However, the requirement of 24-hour prior notice is overruled when due to urgency such an employer is unable to give notice of Chief Inspector or Inspector, as the case may be. In such an urgent matter, employers are obligated to give notice within 24 hours after completion of overtime work. 

Recovery of wages

Section 14 of the Act provides for the payment and recovery of wages. It states that the shopkeeper or the employer has to pay his employee his wage by the tenth day of a given month. It further provides that if any deduction is made while paying the wages or if the employer is not paying by the tenth of the month, then such person can make an application to the officer or the authority appointed by the state government on that behalf. Such an application must be made within 6 months from the date on which the deduction from the wages was made. An application against unauthorised deduction may be accepted after 6 months if the authorities are satisfied that there is sufficient and reasonable cause for the delay. 

Application for recovery of wages

In case of recovery of the wages, Rule 31 provides for the application for the recovery of wages and Rule 32 deals with the procedure for dealing with the application for recovery of wages. Rule 31 provides that an application under Sub-section (2) of Section 14 shall be made and shall be accompanied by a fee of 10 paise for every twenty rupees or part thereof claimed in the application.  After such an application is submitted to the authority concerned, such authority- 

• Give the opportunity of hearing to both parties i.e. the employer and the worker
• Inquire into the matter 

Payment of compensation

After inquiry, if it satisfies the authorities, they may order the employer to pay the employed person the amount deducted from the wages or of the wages due, together with such compensation. Compensation will not exceed ten times the amount deducted. Also, in case of non-payment of wages, the compensation will not exceed ten rupees.

It is further provided that if the officer or the authority is satisfied that such an act of the employer is malicious or in vexation, the officer may impose a fine not exceeding Rs. 50. 

It should be noted that the compensation or the fine imposed by the authority concerned will be recoverable through the Magistrate as if he has ordered for such compensation or fine to be imposed.  

When no compensation will be given

It is provided that no direction for the payment of compensation shall be made in case of delay in the payment of the wages. No compensation will be awarded if there is a delay because of the following reasons- 

• A bona fide error or bona fide dispute as to the amount payable to the applicant or,
• In case of an emergency or the existence of exceptional circumstances, the shopkeeper or the employers were unable to exercise reasonable diligence to make prompt payment, or,
• The failure of the applicant to apply for or accept payment.

Appeal against dismissal of wage-recovery application

Sub-section (6) of the Act states that an appeal shall lie from an order or authority dismissing any application made under sub-section (2) or any direction given under sub-section (3) or (4), if within 30 days of the date on which the order was made:

• Where the shop or establishment is situated in Calcutta as defined under the Calcutta Police Act, 1866, to the Court of Small Causes, Calcutta.  
• It is situated in any other area, to the Munsif having jurisdiction over other area.

Inspector for shops and establishment under West Bengal Shops and Establishment Act, 1963

Section 19 contains the provision for appointment of the Inspectors. Under Section 19(1) of the Act, the state government may designate any person as Inspectors for this Act by issuing notification. Section 19(2) states that inspectors must be employed to be considered to be public servants under Section 21 of the Indian Penal Code, 1860. 

Powers of Inspector

Section 20 enumerates certain powers of the Inspector appointed for this Act. 

• An inspector has the authority to enter the shops or establishments for investigation or inspection of certificate of registration, records, registers, documents, or notices required to be displayed under this Act or Rules made thereunder. He must enter into a shop or establishment in reasonable hours. Further, he can enter with his assistants who are in service of the state government.  
• The inspector has the power to seize under the authorised order of the superior officers. He can also take copies of registers, records, documents notices or portions thereof as he may be considered relevant in respect of an offence committed by the shopkeeper or the employer. It should be noted that the ‘offence’ mentioned above only means offences under this Act. 
• He can examine any person whom he finds in any such premises or places and who, he thinks, is a person employed in the shop or the establishment. 

The shopkeeper or employer needs to keep the certification, documents, letters or any report issued by the inspector for at least 12 months and shall provide the same if asked during an investigation or inspection. 

Duties of Inspector 

Rule 41 provides the duties of the inspector appointed under Section 19 as mentioned above. He shall inspect as may appear to him to be necessary for satisfying himself that the provision of the Act and the rules or any other issue has been duly observed by the shopkeeper or the employers. Along with that, he must ascertain whether within the local area for which he is appointed: 

• shops and establishments are duly registered under the Act;
• The register, records, and notice are required to be maintained and to be displayed under the Act or these rules are properly maintained and displayed;
• The rest or leave granted to the employee on a timely basis;
• Shops and establishments closed every week as provided under sub-section (3) or sub-section (5) of Section 5;
• Opening and closing of the shops and establishment are duly followed;
• Leave and maternity benefits are duly observed; 
• To check that every person appointed in shops and establishments has a letter of appointment;
• To observe that the payment of wages is done under the Act;
• To check that the woman is not employed in any establishment for public entertainment or amusement other than cinema or theatre after 6 P.M. or in shops or establishments after 8 P.M.;
• To check that any young person is not required or permitted to work after 8 P.M; and
• Any child isn’t employed who has not completed the age of 12 years is not employed in any shops or establishments. 

Sub-rule (2) provides that for making such an inspection, the inspector may interrogate such a person at any premises or place where he has a reason to believe that the shops or establishment is there and provided that no such person shall be required under this rule to answer any question that might tend to incriminate him.

Sub-Rule (3) provides that the inspector within his local area needs to inspect the shops or establishments at least once every three months.

Ascertaining the age of employees 

Rule 43 states that the shopkeeper or the employer needs to produce to inspectors in his jurisdiction at his own cost within 15 days documents showing the age of such person in the form of a certificated copy of an extract from the record of any school, a certified copy of an extract from the birth register of a local authority. 

Supervising other Inspectors or Chief Inspector

Rule 45 provides that the state government may appoint supervising inspectors and direct them to supervise the work of the inspector or inspectors. Further, it is provided that the state government can appoint one of the other inspectors to direct and supervise the work of all other inspectors, including the supervising inspector and shall be termed as Chief Inspector.

The Chief Inspector can ask for information from the shops or establishments for the necessary admission of the Act or the rules.

Submission of record diary to supervisor 

Every inspector is required to keep a file of the records of his inspection and maintain a diary in respect of the work done by him every month and has to submit it by the 15th of every such month showing the work done in every preceding month. A copy of such diary shall be retained by the inspector.

Methods of inspection

Rule 46 provides for the methods of inspection. Under this, sub-rule (1) states that when doing inspection, there will be no suspension of the business. Sub-Rule (2) states that no inspections will be conducted in the shops and establishments. Provided that notwithstanding anything hereinbefore mentioned an inspection may be held: 

• To ascertain the position if any shop or establishment is found open on any day of weekly closure notification in respect thereof or
• To ensure that all the provisions of the Act have not been exempted and are duly observed.

Sub-rule (3) provides that if the inspector during his inspection finds any defects in the matter related to the maintenance of the form, register, records, and documents he shall pass an order or make a recommendation for remedying or removing such deviation from the form. It should be mentioned in the visit book which is maintained by the shopkeeper or the employer under rule 48 or he shall send a copy of his inspection note to the shop or the establishment within 14 days from the inspection. 

Role of an employer in the inspection process 

Maintenance of visit book

Rule 48 provides for the maintenance of the visit book. Every shopkeeper and the employer have to maintain a visit book in which the inspector will make his remarks during his visit to the shop or establishment of any defect that came up to him while inspecting the shop and establishment or giving directions to the production of the document under the provisions of the Act and rules. 

Provided that if he has no remarks to make, he can merely enter the day and time of the visit and sign the visit book.

The visit book should be a bound book of more or less than 7 inches x 6 inches consisting of 100 pages and every second page thereof shall be consecutively numbered and unnumbered pages between each two, the consecutively numbered pages shall have the vertical perforated straight line at the margins of about 1 inch. Each page shall contain the following:

• Name of the shops and establishment or the name of shopkeepers or the employer.
• Address in full
• Registration number 
• Date 
• Time 
• Signature of the shopkeeper or the employer

It further provides that in case the visit book is lost, destroyed or defaced, then the shopkeeper or the employer has to provide in writing the loss of such a visit book to the inspector of the area where the shop or establishment is situated and immediately start and maintain another visit book.

Form of cooperation with an inspector

Rule 49 provides for cooperation with the inspector. It states that all the letters, documents, reports or any other documents provided by the inspector shall be properly filled and preserved by the shopkeeper or the employer for up to 12 months. And should be made available when asked during the examination. 

It further provides that any documents or information relating to the Act, if made during the investigation shall be complied with by the shopkeeper or employer concerned forthwith, if the information is easily made available or in case not so available then within 15 days of the receipt thereof. 

Appeal from Inspector’s order

Rule 50 states about appeal from the Inspector’s order or the recommendation. Sub-Rule(2) provides that shopkeepers or the employer may, within 15 days of the date on which an inspector initiate an order or recommendation under sub-rule (3) or rule 46 in the visit book or of the receipt of the copy, an appeal against the order or recommendation on such authority as the government may appoint in this behalf or until such authority is appointed to the government and such authority or the government may confirm, modify or reverse the orders or the recommendation appealed against rule 46(3).

Sub-rule(2) states that the notice of appeal should be in the form of a memorandum, setting the grounds for the objections to the order or the recommendations against which the appeal is preferred, bearing the court fee stamp of fifty paise and should have a copy of the order or the recommendations appealed against it.

Fees and penalty under West Bengal Shops and Establishment Act, 1963

If any shopkeeper or employer tries to contravene any provision of this Act, it shall be punishable with a fine, which may extend to Rs. 500/- or imprisonment of up to 3 months, or both if the offence is for the first time. If the violation is committed again (within 2 years of the first violation), the penalty is either a fine of Rs. 5000/- or imprisonment up to 6 months or both (provided under Section 21).

Section 21(2) provides that if any shopkeeper or employer tries to make causes or allows to be made in any register, record, or document to be kept or displayed under the provisions of the Act that, under his knowledge, is false in any material facts or wilfully omits or allows to be omitted, he shall be convicted with imprisonment of 3 months or a fine of Rs. 1000/- or both.  

Further, Rule 51 states about penalties. Whoever contravenes any provisions of this Act or rule, shall on conviction be punished with a fine which may be Rs. 100 and where the breach is a continuing one with a further fine of 25 for every day, after the first, during which the breach continues.

Judicial pronouncement

Hong Kong Bank, Hong Kong and Shanghai Banking Corporation v. Additional Chief Inspector, Shops and Establishments, Government of West Bengal and Ors. (1988)

Facts of the case

In this case, the petitioner challenged the notice dated 24th May 1988, issued by the Inspector, Shops and Establishment Directorate, West Bengal. It was mentioned in the notice that while inspecting on 22nd May 1988 at 11 A.M. at a commercial establishment of the Hong Kong Bank, the inspector found that there was an infringement of Section 5(1)(9) and Section 17 of the Shops and Establishment Act, 1963 and Rule 48 of the West Bengal Shops and Establishments Rules, 1964, respectively, by rendering service to the customers on a full closing day, i.e., on Sunday, by automatic machine and by not producing the visit book on demand.   

Held

Section 5 of the West Bengal Shops and Establishment Act, 1963, enjoins that every shop or commercial establishment shall remain entirely closed for the holiday of the employees and all the persons working there. In other words, it means that shops and establishments may remain closed, and the employees must get the holidays. In this case, the court also held that the establishment of the bank remains closed, except that the machine that is outside the bank premises may be operated upon by the customers themselves for their requirements. The bank does not remain open. This does not really come under the definition of “closed,” as no service is provided by the bank or its staff members to the customer, but the customers themselves obtain the service. 

Conclusion

The major reason for the enactment of this Act was to preserve the rights of employees and promote social welfare. This Act also protects child labour as it is mentioned that young persons below 14 years cannot work in shops and establishments, and one of the major plus points of this Act is that it provides that it protects the rights and provides certain benefits to the female employees working in shops or establishments across the state of West Bengal. Furthermore, every state of India has its own Shops and Establishments Act, keeping in view the cultural differences between every state, which is an important reason why India can’t have one common Shops and Establishments Act. 

Frequently Asked Questions (FAQs)

Whether the Payment of Bonus Act, 1965 applicable to shops and establishments?

Yes, the said Act applies to shops and establishments where 20 or more people are employed on any day during an accounting year. 

What are the eligibility criteria for renewing the registration of the shops and establishments? 

The shopkeeper or employer has to have a valid registration number, which they received when they first registered their shops.

How many hours of overtime is permissible under the Act?

A worker can work overtime for up to 10 hours, including the normal hours of work in a day, or 120 hours of total overtime in a year. 

References

• https://wblc.gov.in/sites/default/files/upload/content_act_rule_pdf/The%20West%20Bengal%20Shops%20&%20Estt.%20Act,%201963.pdf 
• https://wblc.gov.in/sites/default/files/upload/content_act_rule_pdf/The%20West%20Bengal%20Shops%20&%20Establishments%20Rule,%201964.compressed.pdf 
• https://www.deskera.com/blog/form-b/ 

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