Legal rights and status

This article is written by Sachin Verma (Pen name: Lawrd Commander). This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Introduction

Have you ever imagined why many salesmen/saleswomen in malls, big retail stores, showrooms, shops do not sit, or why there are no seating facilities in most of these shops for their workers?

The reason is that they are not “entitled” to have a seat, nor do they have a right to sit during their working hours even when there is no customer present in the shop. Due to the absence of any statutory provision and out of the fear of losing their jobs,  they are often forced to work under these conditions. The issues related to working conditions in the shop and establishments are regulated by the Shop and Establishment Act in India.

The Shop and Establishment Act

The Shop and Establishment Act deals with the regulation of working conditions in shops, commercial establishments, restaurants, theatres, and other similar establishments in a state. It regulates many aspects of work-life including wages, working hours, leaves, child labour and women’s rights. In India, almost every state has its own local Shop and Establishment Act, eg- Tamil Nadu Shops & Establishment Act, 1947, The Delhi Shop Act, 1954, The Punjab Shops and Commercial Establishments Act, 1958, etc. 

In total there are 19 Shop and Establishment Acts that are presently in force in India. It is compulsory for every Shop and establishment to comply with the requirements of the Acts in order to run its business.

Scope of the Act 

The scope of the act is very wide and the term “shop” includes any premises where goods and services are rendered to the customers(includes both retail shops and wholesale shops).  For example- Jewellery shops, Book Shops, etc. Whereas the word “Commercial establishment” means any premises where any trade, business, profession, or any work is undertaken. For eg- Banks, restaurants, hotels, clubs, theatres, charitable trusts, etc. Hence, the Act is applicable to almost all commercial, recreational places and regulates the working conditions of workers in such premises. The definition of shops and establishments does not include the term “Factory” under the act.

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Introduction to the Amendment in Tamil Nadu Shops and Establishment Act, 1947

The Tamil Nadu Assembly in September 2021, passed the amended Tamil Nadu Shops and Establishment Act, 1947, making it mandatory under Section 22-A to provide a seating Facility to the Salesman and working staff at the Shops, store-fronts, and commercial establishments. 

Section 22 A of the Act states that “The premises of every establishment shall have suitable seating arrangements for all workers so that they may take advantage of any opportunity to sit which may occur in the course of their work and thereby avoid ‘on their toes’ situation throughout the working hours.” Now, it will be mandatory for the Traders/Owners of the shops and commercial establishments to provide seating facilities to their staff during the working hours and they cannot force their staff and workers to stand for long hours, or when there is no customer in shops.

It is pertinent to mention here that the said amendment in the Tamil Nadu Shops and Establishment Act, 1947 was inspired by a similar previous Amendment of 2018 in Kerala’s Shop and Establishment Act namely The Kerala Shops & Commercial Establishments Act, 1960. 

Unlike Tamil Nadu, the road to the above-mentioned amendment was not easy in the case of Kerala, but it was a result of regular protest by the workers in shops and commercial establishments and organisations since 2010. The lady behind this struggle is Mrs. Palithodi Viji, a textile worker from Kerala, who began the protest against the working conditions in the Textile Industry in 2007 when her employer refused her request to use the toilet. There was no toilet facility in the shops and the women workers had to use the toilets inside the nearby malls. To tackle such situations,  Mrs. Palithodi Viji founded women workers groups like “Penkottu ” and later “Asanghaditha Mekhela Thozhilali Union” (Workers Union of Unorganised Sector) and staged several protests across the state. 

The struggle for ‘right to sit” grew intense in 2012, when the salary of a Saleswoman was cut by a textile unit in Kozhikode(Kerala) for leaning against the wall when a group of customers were shopping in the showroom. The protest received support from workers across the State and received national attention in 2016, when the National Human Rights Commission(NHRC) pressurised the Kerala Government to submit a report on this issue and also directed the Kerala Government to take necessary steps in this regard. As a result, the Kerala Government amended the Kerala Shops & Commercial Establishments Act, 1960 in December 2018, guaranteeing a more secure environment for working women and preventing their sexual exploitation in the workplace.

Highlights of Kerala Amendment Bill, 2018

The draft Bill brought out by the Kerala Government in 2017, proposing amendments to the 1960 Act, included several provisions that shop owners are bound to make for the safety of women workers. It also included other women-friendly initiatives, including providing seating arrangements for saleswomen during working hours as well as arrangements to ensure women’s safety during night shifts.

As per the amended Section 20 of the Act, an employer can now employ any women worker between 9 P.M and 6 A.M only after obtaining the consent of the women worker. The Employer needs to ensure that in a group working between 9 P.M and 6 A.M,  adequate no. of women are part of that group. The employer is under an obligation to make a proper arrangement with respect to the prevention of women from sexual harassment and also for providing transport facilities to all such women from the shop or establishment to their house. 

The newly introduced Section 21B in Kerala Shop and establishment Act mandates that in every shop and establishment, suitable arrangements for sitting shall be provided for all workers so as to avoid ‘on the toes’ situation throughout the duty time, so that they may take advantage of any opportunity to sit which may occur during the course of their work. 

Denial of Rights

It is very unfortunate that even after 74 years of Independence, we as a nation have failed to recognise the “Right to Sit”  and other basic rights like toilet facilities, the safety of women workers in the Workplace as a basic right and there is still a need for an amendment to make this mandatory during working hours. We often see that in Malls, shops, the Salespersons are not provided with chairs and they have to stand for 10-12 hours daily throughout their working hours. These workers are not allowed to sit even when there are no customers in the shops, which has no direct or remote relation with their performance. These workers are not allowed to sit or even take toilet breaks, and due to such pathetic working conditions, many workers develop serious health issues like- kidney-related issues, varicose veins, swollen feet, and back pain. 

Response of the Traders on the Amendment

While the Workers, Media and NGOs appreciated the Bill, the Traders as expected and evident were unhappy with this Amendment. According to the Traders, this amendment will not only make the workers less active and less efficient but it will also bring down the business. There is no doubt that there is no merit in these arguments and it shows how Traders focus only on their profit, even if it comes at the cost of their worker’s physical and mental health. 

Strict punishments violation of this rule will bring the required changes in the working environment in Shops and Commercial Establishments, which is only possible by regular inspection of these Shops and Commercial Establishments by the concerned Officers and also taking necessary and timely actions on the complaints received against the Employer/Traders by the Workers and also by the Customers.

Amendments in other States so far 

It is very disappointing that so far only Kerala and Tamil Nadu Government have introduced the “right to sit” through amendment in their respective local Shops and Establishment Acts, but other states have taken no such steps in this direction even though the situation is similar in almost every state like- No seating facility, no fixed working hours, no weekly off, no toilets in the shops. 

As the Shops and Establishment Acts are state-specific acts,  it will be a great step if other states can also appreciate/adopt the steps taken by Kerala and Tamil Nadu Government and amend their respective Shop and Establishment acts in order to ensure more humanly treatment to the workers by the Owners of the shops and establishments in the unorganised sectors. 

As per the Directive Principle of State Policy (DPSPs) under Article 42 of the Constitution of India, the State Governments are under an obligation to make provisions/ Policies for Just and Humane conditions at Workplace for the workers in the unorganised sectors.

The Amendment by State Governments in their existing respective Shops and Establishment Acts can ensure the safe and secure work environment in the workplace which falls under the definition of term “Shops” and “Commercial establishments”, where the workers are forced to work under the inhuman conditions at the cost of their physical and mental health due to lack of any statutory provision in this regard.  

Conclusion

The amendment in the Act is a historical win for the underprivileged women workers and it will provide the much-required relief, respect and dignity to all the workers. This amendment is definitely not an end to all the problems of workers but it will encourage more workers to raise their voice against the injustice they face in daily life from their employers.

For the time being, we must congratulate Mrs. Palithodi Viji and Kerala’s Women Workers for their long and relentless struggle which forced the Kerala Government to amend its Shops and Establishment Act. We must appreciate the Tamil Nadu Government for appreciating and adopting this amendment in their state which also proves the commitment of the Government towards the “proletariat” class. These amendments have paved the way for the Workers in other States to demand similar amendments from their State Governments in the future. This historical victory also establishes the fact that a dedicated movement for a social cause can force the Governments to discharge their duties mentioned under the Constitution of India.

References


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