BIHAR SHOPS AND ESTABLISHMENTS (AMENDMENT) ACT, 1974 THE BIHAR SHOPS AND ESTABLISHMENTS (AMENDMENT) ACT, 1974 [Act No. 2 of 1975] An Act to Amend Further The Bihar Shops and Establishments Act, 1953. Be it enacted by the Legislature of the State of Bihar in the Twenty-fifth year of the Republic of India as follows-- This Act may be called the Bihar Shops and Establishment, (Amendment) Act, 1974. In section 2 of the Bihar Shops and Establishments Act, 1953 (Bihar Act 8 of 1954) (hereinafter referred to as the said Act)-- (i) for sub-section (1) the following sub-section 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 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 (63 of 1948), and for, the purpose of any proceeding under this Act, include an employee, who has been dismissed discharged or retrenched for any reason whatsoever;"; (ii) for sub-section (6), the following sub-section shall be substituted, namely:-- "(6) 'establishment' means an establishment which carries on any business, trade or profession or any work in connection with or incidental or ancillary to any business, trade or profession and includes-- (i) administrative or clerical services appertaining to such establishment; (ii) a shop restaurant residential hotel eating house, theatre or any other place of public amusement or entertainment; and (iii) such other establishment as the State Government may, by notification, declare to be an establishment to which the Act applies; but does not include a 'motor transport undertaking' as defined in clause (g) of section 2 of the Motor Transport Workers Act, 1961., (27 of 1961). For section 6 of the said Act, the following section shall be substituted, namely:-- "6. Registration, of establishments and renewal thereof.-- The State Government may make rules requiring the registration of establishments or any class of establishments or renewal thereof and prescribing the manner and the fees payable for such registration or renewal." For sub-section (1) of section 7 of the said Act the following sub-section shall be substituted; namely:-- "(1) No establishment shall on any day be opened earlier than 9 A.M. and closed later than 9 P.M.: Provided that any customer who was being served or was waiting to be served at such closing hour, in any establishment may be serve in such establishment during the quarter of an hour, immediately following such hour." For section 8 of the said Act, the following section shall be substituted, namely:-- "8. Prohibition of sales before opening and after closing Hours.-- Save as otherwise provided in this Act or by or under any other enactment, no person shall carry on the sale of any goods in any place, whether a shop or not before the opening or after the closing hours fixed under section 7: Provided that nothing in this section shall apply to hawkers on footpath or market street up to 11 P.M.: Provided further that nothing in this section shall apply to the hawking of the newspapers." For section 9 of the said Act, the following section shall be substituted, namely:-- "9. Hours of work in establishments.-- No employee in any establishment shall be required or allowed to work in such establishment for more than 9 hours in a day and for more than 48 hours in any week, exclusive of interval allowed for rest or for meals which together shall not be less than one hour in any day: Provided that during any period of stock taking or making of accounts or any other purpose as may be prescribed any person, other than a child or a young person, may be allowed or required to work in such establishment for any period in excess of the hours fixed under this section subject to payment of overtime wages at the rate fixed in section 21 but the total number of hours of work, including overtime, shall not exceed 10 hours in any day and 54 hours in any week and the aggregate hours of overtime work shall not exceed 150 hours in a year: Provided further that advance intimation of at least 3 days in this respect has been given in the prescribed manner to the Chief Inspector or any other officer authorised by the State Government." For section 10 of the said Act, the following section shall be substituted, namely:-- "10. Interval for rest.-- No employee in any establishment shall be required or allowed to work in such establishment for more than five hours continuously in any day unless he has" had an interval for rest of at least half an hour: Provided that there shall not be more than one such interval for rest during the whole of the working period of any employee on any day." In section 11 of the said Act, for clause (iii), the following clause shall be substituted, namely:-- "(iii) in the case of any other employee, twelve hours in any day." For section 12 of the said Act, the following section shall be substituted, namely:-- "12. Weekly holidays in establishments.-- (1) Every establishment shall remain entirely closed on one day of the week: Provided that an employer may keep the establishment open on weekly holiday if it falls on the opening day of the financial year. (2) The day on which an establishment shall remain entirely closed in each week shall, subject to the provisions of sun-section (3), he specified by the employer in a notice (in Hindi in Devanagri Script and, if necessary, in a language and script understood by the majority of the employee) displayed at some conspicuous and convenient place at or near the main entrance of the establishment and shall be mentioned in a clean and legible condition and the day so specified shall not be altered more often than once in three months, and a copy of such notice shall be delivered at the office of the Inspecting Officer and the day specified in the notice shall not be altered without the prior approval of the Inspecting Officer. (3) Subject to such directions as may be issued by the State Government in this connection from time to time, the Chief Inspecting Officer may if the thinks fit so to do in the public interest by notification, specify the day on which all or any class or classes of establishments in a particular area shall remain entirely closed under sub-section (1) and thereupon, the day so specified shall be deemed, to be the day specified under sub-section (2) by the employer. (4) (Every employee in an establishment shall be allowed in each week a holiday of one whole days: Provided that nothing in this sub section shall apply to any employee whose total period of employment in the week, including any day spent in authorised leave is less than six days or shall entitle such employee who has been allowed a whole holiday on the day on which the establishment has remained closed in pursuance of sub-section (1) to any additional holiday. (5) No deduction shall be made from the wages of any employee in an establishment on account of any day on which it has remained closed as a holiday under sub-section (1) or on which an employee has been on his weekly holiday under sub-section (2) and if an employee, is employed on daily wages, he shall nonetheless he paid the daily wages of the day on which such establishment remains closed or on which the employee is on his weekly holiday unless he is absent on the day preceding such day" Section 12A of the said Act, shall be re-numbered as section 12B and before the section as so re-numbered, the following section shall be inserted, namely:-- "12A. Other holidays.-- Every employee in an establishment shall be allowed-- (a) a holiday on full pay on the Independence Day, the Republic Day and Mahatma Gandhi's Birthday reach year; and (b) such other holidays on full pay up to five days in a year, in connection with such festivals as the State Government may declare from time to time under this Act: Provided that an employee required to work on any such holiday shall be paid remuneration as double the rate of his normal wages calculated by the hour". In section 16 of the said Act-- (i) 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 five days". (ii) the second proviso to sub-section (5) shall be omitted. (iii) after sub-section (7), the following sub-section shall be inserted, namely:-- "(8) When earned leave is refused to an employee having to his credit such leave for forty-five days he shall be entitled, in respect of the period covered by the refusal, to an amount which would have been payable to him as wages for the period in case he had been on leave during that period. The amount payable under this sub-section shall be in addition to the normal wages payable for the period. On an employee receiving the said amount the leave to his credit shall be reduced by the number of days in respect of which such amount is received; and (iv) sub-sections (8), (9) and (10) shall be renumbered as sub-sections (9), (10) and (11) respectively. After section 16 of the said Act, the following section shall be inserted, namely:-- "16A. Other kinds of leave.-- (1) Every employee in an establishment shall in addition to the leave, admissible under section 16, be entitled to-- (a) Casual leave with full pay for 12 days in a Calendar year; and (b) Sick leave on half pay for 12 days in a Calendar year on production of a medical certificate; Provided that the casual leave or the sick leave shall not be accumulative. (2) Care-takers, guards and watch men, who have been in continuous employment for a period of 12 months or more shall, beside being entitled to leave provided for in section 16, and sub-section (1) of this section, be entitled to 45 days leave with full pay for every completed 12 months of continuous service". In section 17 of the said Act, after sub-section (2), the following sub-section shall be inserted, namely:-- "(3) An employee proceeding on earned leave shall on demand be given advance payment of the wages for half of period of leave and the wages for the wage period immediately proceeding such leave. The wages for the remaining half period of such leave shall he payable to him along with wages for the first wage period after he resumes duty. The wages for the period of sick leave shall be payable to the employee along with his wages for the first wage period after he resumed duty. For section 18 of the said Act, the following section shall be substituted, namely:-- "18. Power to increase the amount of leave.-- Notwithstanding anything contained in sections 16 and 16A, the State Government may by notification increase the total amount of leave and the minimum number of days up to which such leave may be accumulated in respect of such establishments or class of establishments as may be specified in the notification" In section 26 of the said Act, for sub-sections (1) and (2) the following sub-sections shall be substituted, namely:-- "(1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months, except for a reasonable cause and after giving such employee at least one month's notice or one month's wages in lieu of such notice: Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose: Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above. (2) Every employee, dismissed or discharged of whose employment is otherwise terminated, may make a complaint in writing, in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on one or more of the following grounds, namely:-- (i) there was no reasonable cause for dispensing with his services; or (ii) no notice was served on him as required by sub section (1); or (iii) he had not been guilty of any misconduct as held by the employer; or (iv) no compensation as prescribed in sub-section (1) was paid to him before dispensing with his service". In section 30 of the said Act, for clause (b) of sub-section (1), the following clause shall be substituted, namely:-- "(b) inspect, or take extracts from any prescribed registers records and notices maintained under this Act or the rules made there under or seize such records, registers or notices as he may consider relevant in respect of an offence under this Act which he has reason to believe to have been committed by an employer" For section 36 of the said Act, the following section shall be substituted, namely:-- "86. Cognizance of offences:-- (1) No court Bhall take cognizance of any offence punishable under this Act or any rule or order mane there under except on a complaint in writing of the facts constituting such offence made by Inspecting Officer or any person authorised in this behalf by the State Government within six months of the date on which the offence is alleged to have been committed: 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, 16A, 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. (2) No court inferior to that of & Magistrate of the first class shall take cognizance or try an offence punishable, under the Act". After section 37 of the said Act, the following section shall be inserted, namely:-- "37A. Presumption.-- Whenever an establishment is found open it shall be presumed that it is open for the service of customers or for the business, trade or profession normally carried on in the establishment." For sections 39 and 39A of the said Act, the following sections shall be substituted, namely:-- "39. Workmen's Compensation Act, 1923 to apply to an employer and an employee to whom this Act applied.-- The provisions of the Workmen's Compensation Act, 1923 (VIII of 1923), and of rules made there under, shall, mutatis mutandis, apply to every employer or employee to whom the provisions of this Act apply. 39A. Maternity Benefits Act, 1961 (53 of 1961) to apply to establishment and Persons to whom this Act applies.-- The provisions of the Maternity Benefits Act, 1961 (53 of 1961) and of rules made there under shall mutatis mutandis apply to every establishment and every person to whom the provisions of the Act apply" In section 40 of the said Act in sub section (2), for clause (a) the following clause shall be substituted namely:-- (a) the registration and renewal of establishments and the amount and manner of payment of fees under section 6. In the schedule to the said Act, for entries numbers 7, 8, 9, 10, 11, 12, 13, 15, 16, 17 and 18, the following entries shall be substituted, namely:-- "7. Establishments dealing wholly in newspapers and periodicals, medicines, medical and surgical appliances, vegetables flowers, pan (betel) leaves and not biri, cigarettes and other ancillary articles meat poultry, game, eggs, ice and fresh fruits--Sections 7, 8 and 12(1). 8. Cinemas theatres and other places of public amusement or entertainment--Section 7, 8 and 12(1) and in case of a young person or women also section 14. Sections 7, 8 and 12(1) and in case of a young person or women, also section 14. 9. Clubs, restaurants, eating houses, boarding houses, residential hotels establishments dealing in meals, refreshment, sweetmeats, milk and cooked food--Sections 7, 8 and 12(1). 10. Stalls and refreshment rooms of railway stations.-- Sections 7, 8, and 12(1). 11. Shops for the sale of motor spirit and motor or aircraft spares and accessories--Sections 7, 8 and 12(1). 12. Government licensed establishments dealing in spirituous liquor or narcotic drugs--Sections 7, 8 and 12(1). 18. Shops dealing in articles, required for funeral, burial or cremation so far as the sale of these articles in concerned--Sections 7, 8 and 12(1). 15. Circus and Exhibitions--Sections 7, 8 and 12(1). 16. Shops of barbers and hair dressers--Sections 7 and 12(1). 17. Establishments of the factories engaged in manufacture of iron and steel--All provisions except sections 6, 26 and 28 and Chapters VI and "VII. All provisions except sections 6, 26 and 28 and Chapters VI and VII. 18. Establishments of country oil-ghanees--Sections 7 and 8. (1) The Bihar Shops and Establishments (Third Amendment) Ordinance, 1974 (Bihar Ordinance no. 165 of 1974), is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken in exercise of any power conferred by or under the said Ordinance shall be deemed to have been done or taken in the exercise of powers conferred by or under this Act, as if this Act were in force on the day on which such thing or action was done or taken.
Preamble - BIHAR SHOPS AND ESTABLISHMENT, (AMENDMENT) ACT, 1974PREAMBLE
Section 4 - A Amendment of' section 7 of Bihar Act 8 of 1954
Print Judgement
