BIHAR SHOPS AND ESTABLISHMENTS (AMENDMENT) ACT, 1961 THE BIHAR SHOPS AND ESTABLISHMENTS (AMENDMENT) ACT, 1961 [Act No. 12 of 1961] [06th May, 1961] An Act To Amend The Bihar Shops And Establishments Act, 1953. Be it enacted by the Legislature of the State of Bihar in the Eleventh Year of the Republic of India as follows:- (1) This Act may be called the Bihar Shops and Establishments (Amendment) Act, 1961. (2) It shall come into force at once. In section 2 of the Bihar Shops and Establishments Act, 1953 (Bihar Act VIII of 1954) (hereinafter referred to as the said Act),- (i) the following clause shall be inserted in the beginning, namely:- "(1) 'Apprentice' means a person, aged not less than twelve years, who is employed, whether on payment of wages or not, for the purpose of being trained in any, trade, craft or employment in any establishment"; and clause (1) shall be renumbered as clause (1A); (ii) for clause (4), the following clause shall be substituted, namely:- "(4) 'employee' means a person wholly or partially employed for hire, wages including salary, reward, or commission in, and in connection with, any establishment and includes 'apprentice', but does not include a member of the employer's family. It also includes persons employed in a factory who are not workers within the meaning of the Factories Act, 1948 (LXIII of 1948) and who are not working in managerial capacity, and for the purposes of any proceeding under this Act, includes an employee who has been dismissed, discharged or retrenched for any reason whatsoever;" (iii) after clause (10), the following clauses shall be inserted, namely:- "(10A) 'opened' means opened for the service of any customer or for any business connected with the establishment;" and (10B) 'period of work' means the time during which an employee is at the disposal of the employer;" (iv) for clause (20), the following clause shall be substituted, namely:- "(20) 'wages' means wages as defined in the Payment of Wages Act, 1936 (IV of 1936) and includes the dearness allowance as the workman is for the time being entitled to;" and (v) the word "and" occurring at the end of clause (21) shall be omitted and after the clause as so amended the following clause shall be inserted, namely:- "(21A) 'year' means a year commencing on the first day of January; and" In sub-section (1) of section 4 of the said Act, the words, figures, letter and brackets "or to any premises which is a factory within the meaning of clause (m) of section 2 of the Factories Act, 1948 (LXIII of 1918)", shall be omitted. For the second proviso to section 9 of the said Act, the following proviso shall be substituted, namely:- "Provided further that the total number of hours of work including overtime shall not exceed ten hours in any day except on days of stock-taking and preparation of accounts and the total number of hours of work shall not exceed sixty during any week". For section 14 of the said Act, the following section shall be substituted, namely:- "14. Children, young persons and women to work only between 7 a.m. and 10 p.m.-No child, young person or women shall be required or allowed to work whether as an employee or otherwise in any establishment to which this Act applies before 7 a.m. or after 10 p.m." In section 16 of the said Act,- (i) in sub-section (1), for the words "two hundred", the words "two hundred and forty" shall be substituted; and to the said sub-section as so amended, the following explanation shall be added, namely:- "Explanation.-For the purpose of this sub-section- (a) any days of lay-off, by agreement or contract or as permissible under the standing orders and any days of lock-out; (b) in the case of a female employee, maternity leave for any number of days not exceeding twelve weeks; and (c) the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the employees has worked in an establishment for the purpose of computation of the period of 240 days or more, but he shall not earn leave for those days"; (ii) for sub-section (2), the following sub-section shall be substituted, namely:- "(2) (i) the leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave. (ii) An employee whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid down in clause (i) or as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calendar year"; (iii) in sub-section (3) for the figures "200", the figures "240" shall be substituted; (iv) for the first proviso to sub-section (5), the following proviso shall be substituted, namely:- "Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed forty in the case of a child and thirty in any other case"; and (v) after sub-section (8), the following sub-sections shall be added, namely:- "(9) If an employee wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section (6) and in such a case wages as admissible under section 16 shall be paid not later than fifteen days. (10) The unavailed leave of an employee shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal." After section 18 of the said Act, the following section shall be inserted, namely:- "18A. Power to exempt establishment.-Where the State Government is satisfied that the leave rules applicable to employees in an establishment provide benefits which in its opinion are not less favorable than those for which this Chapter makes provision, it may, by written order, exempt the establishment from all or any of the provisions of this Chapter subject to such conditions as may be specified in the order." At the end of sub-section (3) of section 23 of the said Act, the words "at or near the place of work and during working hours" shall be added. After section 28 of the said Act, the following sections shall be inserted, namely:- "28A. Appearance by legal practitioner.-A legal practitioner may, in any proceeding under this Act, appear, plead or act on behalf of any party on such conditions as may be prescribed. 28B. Power of the State Government to make rules for regulation of business and transfer of case.-Where the authority prescribed under sub-section (2) of section 26, or sub-section (1) or sub-section (7) of section 28, is more than one, the State Government may make rules- "(i) to regulate the distribution of business between them; and (ii) for the transfer of a case or an appeal, from one authority to the other." After the words "any evidence" occurring at the end of the proviso to clause (c) of sub-section (1) of section 30 of the said Act, the words "ending to incriminate himself" shall be inserted. To section 36 of the said Act, the following proviso shall be added, namely:- "Provided that the Court may for reasons to be recorded in writing take cognizance of the offences for the breach of the provisions of sections 16, 26 and 28 after the expiry of the said period of six months, if it is satisfied that the complainant was prevented by sufficient cause from filing the complaint within the said period." After section 39 of the said Act, the following section shall be inserted, namely:- "39A. Bihar Maternity Benefit Act, 1947 (Bihar Act XXIV of 1947) to apply to persons employed in establishments to which this Act applies.-The provisions of the Bihar Maternity Benefit Act, 1947 (Bihar Act XXIV of 1947), and rules made there under shall mutatis mutandis apply to every establishment under this Act." (1) In sub-section (2) of section 40 of the said Act,- (i) for clause (f), the following clause shall be substituted, namely:- "(f) the manner in which any amount referred to in sub-section (4) of section 28 or any compensation awarded under sub-section (7) of section 16 or sub-section (5) of section 26 shall be recovered;" and (ii) the word "and" occurring at the end of clause (I) shall be omitted and after the clause as so amended, the following clause shall be inserted, namely:- "(ll) the conditions subject to which parties may be represented by legal practitioners in proceedings under this Act before the prescribed authority; and" (2) In section 40 of the said Act, after sub-section (4), the following sub-section shall be added, namely:- "(5) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or in the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." To section 41 of the said Act, the following proviso shall be added namely:- "Provided that anything done under the said enactment which could have been done under this Act if it had then been in force shall be deemed to have been done under this Act."
Preamble - BIHAR SHOPS AND ESTABLISHMENTS (AMENDMENT) ACT, 1961PREAMBLE
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