9th June 2009 From India, Bangalore
10th June 2009 From India, Delhi
Pls find below Records Section in Shops and Extablishment Act:
The occupier of every shop or commercial establishment shall, in the prescribed form and in the prescribed manner, keep exhibited in the shop or establishment a notice setting forth the close day.
The occupier of any shop or establishment, about the business of which persons are employed, shall in the prescribed form and in the prescribed manner keep a record of the hours worked and the amount of leave taken by, and of the intervals allowed for rest and meals to, every person employed about the business of the shop or establishment, and particulars of all employment overtime shall be separately entered in the record.
The occupier of any shop or establishment, about the business of which persons are employed, shall in the prescribed form and in the prescribed manner keep exhibited in the shop or establishment notices setting forth the number of hours in the week during which persons may in accordance with the provisions of this Act be employed about the business of a shop or establishment and such other particulars as may be prescribed.
The occupier of every shop or establishment shall for the purpose of this Act maintain such other records and registers and display such other notices as may be prescribed.
Particulars and forms of the records required to be maintained under section 33
Failure to maintain the records in the prescribed form and in the prescribed manner, i.e., not keeping exhibited a notice setting-forth the close day or a record of the hours worked and the amount of leave taken by end of the intervals allowed for rest and meals or not entering the particulars of all employment overtime, amounts to contravention of the provisions of section 33 of the Act and the proprietor, employer or the manager of such an establishment is liable to be punished on conviction to a fine of Rs. 5 for every day on which the contravention occurs or continues.
The register of employment and wages is required to be kept in Form 'G' duly bound and pages serially numbered. Where, however, the opening and closing hours are ordinarily uniform, the employer may maintain such register in Form 'H' alongwith a separate register of wages and record of leave in Form 'I' but the entries relating to a particular date on which an employee if called upon earlier or detained later than the usual working hours are required to be made immediately in the remarks column of Form 'H' before such early or late working commences. In the case of an establishment which is not required to observe a close day under section 16 of the Act, the occupier has to exhibit in a conspicuous place in his establishment a notice in Form 'J' specifying the day or days of the week on which his employees shall be given weekly holidays; the notice should be exhibited before the employees, to whom it relates, before they cease work on the Saturday immediately preceding the first week during which it is to have effect. In any register or record which an employer is required to maintain, the entries relating to any day should be made on the mid-day of the following day provided that in the attendance register the entries relating to any day should be made on the same day. The entries in respect of actual commencement of work should be made immediately where the employee has been called earlier than the hour at which he is ordinarily required to report.
All such registers and records are required to be exhibited at the place of work. Any notice required to be exhibited under the provisions of this section should be exhibited in such a manner that it can be readily seen and read by any person whom it affects and should be renewed, whenever it becomes defaced or otherwise ceases to be clearly legible and such registers, records and notices relating to any calendar year have to be preserved till the end of the following year. This section also requires every occupier to exhibit in his establishment another notice showing the close day, the daily working hours and usual period of the rest, interval fixed for employees in Form 'K'; (Rule 14 and 14A of the Delhi Shops and Establishments Rules, 1954).
Grant of exemption from maintenance of prescribed records
Under rule (14A) of the Rules if on an application made by the employer in writing the Government is satisfied that any register or record maintained by such employer gives in respect of the person employed by him the necessary particulars required to be shown in Form G/H/I to be maintained, the Government may, by order in writing direct that the register or record so maintained by such employer should, to the corresponding extent, be deemed to be a register or record maintained under the Rules framed under this Act.
Failure to maintain records-if single offence
Under sub-sections (2) and (3) of section 33 of the Act read with the rules framed thereunder, the occupier of any shop or establishment is under an obligation to keep a record of the hours worked, the amount of leave taken by end of the intervals allowed for rest and meals to every person and particulars of all employment overtime as also to keep exhibited notices setting forth the number of hours in the week and such other records and registers as may be prescribed and display such other notices as may be prescribed. The attendance registers, wages registers, record of leave registers as well as the form of notices required to be displayed have been prescribed by the Government for this purpose. The failure to maintain a register of attendance or of the hours worked or the amount of leave taken and of the intervals allowed for rest and meals or not entering the particulars of all overtime employment constitutes an offence punishable under sub-section (2) of section 40 of the Act. A separate and distinct offence is not committed in respect of each particular which is omitted to be shown in the register or other records but it is the failure to maintain a particular prescribed register showing the various particulars that constitutes the offence, whether the particulars be one, two or several.
Can an Inspector require an employer to produce the record in his office for inspection?
Under section 33 of the Delhi Shops and Establishments Act, 1954, the occupier of every shop or commercial establishment is required to maintain certain registers, records and notices prescribed under rule 14 of the Delhi Shops and Establishments Rules, 1954. Section 35 of the Act casts an obligation on every occupier of a shop or establishment to produce for inspection of an Inspector, all accounts or records required to be kept for the purpose of this Act and to give any other information in connection therewith as may be required. Under rule 17 of the Rules, it is the duty of an Inspector to make such examination of the premises and of the registers, records or notices as may appear to him to be necessary for satisfying himself that the provisions of the Act and of the Rules and of any order or notification issued by the Government under the Act, or the Rules made thereunder are being properly observed and in particular shall satisfy himself that the establishment is duly registered under the Act; that the registers, records and notices required to be maintained or displayed under the Act or the Rules are properly maintained or displayed; that the interval of rest and holidays required to be granted or observed under the Act are granted and observed and the limits of hours of work and spread-over laid down under the Act are not exceeded and that the provisions of the Act relating to the opening and closing hours are duly observed; the provisions of the Act and the Rules relating to leave, cleanliness, precautions against fire, payment for overtime, wages and other dues and the ones for dispensing with the services are being observed and complied with.
Clauses (a) and (b) of section 37 empower an Inspector to enter any place which is, or which is being used as a shop or a commercial establishment and to make such examination of the premises and of any prescribed registers, records and notice and take on the spot or otherwise evidence of any person as he may deem necessary of carrying out the purposes of the Act. Reading clauses (a) and (b) of the section it becomes clear that the powers contained in clause (b) are to be exercised when the Inspector visits any shop or establishment and that they do not contemplate an exercise of the powers outside the shop or establishment premises. Under clause (b), he may examine the premises and so far as the prescribed registers, records and notices are concerned the only power he has is to require their production for examination on the spot. In other words, the examination of the prescribed records, registers and notices, etc. , is to be made on the premises and this inference is supported by the context. Evidently, the examination of the premises as to opening and closing hours, displaying of prescribed notices, cleanliness, precautions against fire, etc. , is to be made on the spot and the production of the other records too, therefore, is intended to be made on the spot, that is, on the premises. So far as the taking of the statements of any person is concerned, they can be taken on the spot or otherwise, that is, even outside the premises, which also indicates that where something was required to be done outside the premises, it was so stated specifically in the section. It is reasonable to infer, therefore, that so far as the production of the registers is concerned, the same is to be done in the premises and not outside, for else there would have been a similar provision in that regard also.
Now apart from section 37 and having regard to section 35 and rule 14 themselves, the demand for production of registers and other records is evidently not a demand for information as contemplated by section 37 read with rule 14 and the said provisions do not empower the Inspector to require the occupier of any shop or establishment to produce them in his office.
For the foregoing reasons, it seems to be clear that a Labour Inspector has no power to call upon the occupier of any shop or commercial establishment to produce the registers and other documents at his office and thus the failure of an employer or occupier to comply with the notice of the Inspector requiring him to produce the records in his office, shall not expose him to any penalty.
Principles to be applied for passing orders of sentence for breach of section 33 of the Act
In passing orders of sentence for breach of the conditions laid down by Delhi Shops and Establishments Act, criminal courts must bear in mind the beneficient purposes which the provisions of the Act are intended to serve. In other words, the sentence of fine to be imposed by the Metropolitan Magistrate should not be unduly lenient. In one case, the sentence of fine of Rs. 10 imposed by the Magistrate was held to be unduly lenient and so, the sentence of fine was enhanced to Rs. 30, i.e., three times of the punishment imposed by the trial courts; The State v. Jamnadas Vasanji, AIR 1962 Guj. 234.
10th June 2009 From India, New Delhi