MAHARASHTRA SHOPS AND ESTABLISHMENTS RULES, 1961

PREAMBLE

In exercise of the powers conferred by section 67 of the Bombay Shops and Establishments Act, 1948 (Bom. LXXIX of 1948), and in supersession of the Bombay Shops and Establishments Rules, 1949, the Central Provinces and Berar Shops and Establishments Rules, 1947, the Central Provinces and Berar Shops and Establishments Registration Rules, 1949 and the Hyderabad Shops and Establishments Rules, 1951, the Government of Maharashtra hereby makes the following rules, the same having been previously published as required by sub-section (3) of section 67 of the said Act, namely:-

Rule - 1. Short title.

These rules may be called the Maharashtra Shops and Establishments Rules, 1961.

Rule - 2. Definitions.

In these rules, unless the context otherwise requires,-

(a)      "Act" means the Bombay Shops and Establishments Act, 1948.

(b)      "Form" means a form appended to these rules;

(c)      "Government" means the Government of Maharashtra;

(d)      "Schedule" means a Schedule appended to these rules;

(e)      "Section" means a section of the Act.

Rule - 3. Appointment of prescribed authority.

In respect of the local area specified in the first column of the Table below the authority specified against such area in the second column of that Table shall be the prescribed authority, namely:-

[1][TABLE]

Rule - 4. Suspension of provisions of the Act.

Government may suspend the operation of the provisions of the Act under section 6 on account of the following holidays or occasions, that is to say-

(1)     Diwali.

(2)     Ganesh Chaturthi.

(3)     Dussehra.

(4)     Jamshed Navroz.

(5)     Pateti.

(6)     Christmas.

(7)     Ramzan and Ramzan Id.

(8)     Any occasion on which a public emergency is declared in this behalf by Government.

(9)     Public fairs or exhibitions or religious festivals recognised in this behalf by Government.

(10)   Any [2][ ] occasion deemed fit by Government in this behalf.

Rule - 5. Form of submitting statement, application, fees and other particulars, under section 7.

The employer of every establishment shall, within the period specified in sub-section (4) of section 7, or as the case may be, not less than fifteen days before the date of expiry of the registration certificate or of the renewed registration certificate as required by sub-section (2-A) of section 7, send to the Inspector of the Local area concerned a statement in Form A or an application in Form B, as the case may be, [3][and where the application is made in Form B, shall also forward along with the application, the certificate of registration. Every statement in Form A and application in Form B shall be accompanied, respectively, by the registration and the renewal of registration fees specified in Schedule I; and where the application seeks to obtain a certificate of registration or the renewal thereof for a period exceeding one year but not exceeding three years, such statement or the application shall be accompanied by the fees for the whole of the said period].

Provided that in local areas where the Act is enforced by the State Government, the employer shall credit the fees in Government Treasury and forward a copy of challan along with the statement in Form A or an application in Form B as the case may be [4][or in alternative, forward a crossed Postal Order of the requisite amount along with such statement or application].

Rule - 6. Manner of registering or renewing registration of establishments and form of registration and renewal certificate.

On receipt of the statement or an application and the fees [5][specified] in rule 5, the Inspector shall, on being satisfied about the correctness of the statement, and of information in the application, register or renew the registration of the establishment in the appropriate part of the register of establishments in Form C and shall issue a registration or renewal certificate in Form D to the employees.

Rule - 7. Grant of duplicate of registration or renewal certificate.

If any registration certificate issued under rule 6 is lost, destroyed or defaced, the employer of the establishment shall forthwith report the matter to the Inspector by whom the certificate was issued, and shall apply with a fee of [6][twenty rupees] for the issue of a duplicate registration certificate. Upon the receipt of such application and the fee, the Inspector shall furnish the employer with a duplicate copy of the registration certificate duly stamped "duplicate" in red:

[7][Provided that in local areas where the Act is enforced by State Government, the employer shall credit the fee in Government Treasury and forward a copy of the challan along with the application or in the alternative forward a crossed Postal Order of the requisite amount along with the application.

Rule - 8. Form for notifying change and fees.

The employer shall notify to the Inspector of the local area concerned, in Form E along with such fees as are [8][specified] in Schedule II any change as respects the total number of employees within fifteen days after the expiry of the quarter to which the change relates; and any change, other than in respect of the total number of employees, in respect of the information contained in the statement furnished by him under rule 5 within thirty days after the change has taken place:

[9][Provided that in local areas where the Act is enforced by the State Government the employer shall credit the fees in Government Treasury and forward a copy of the challan along with the notice of change in Form "E" or in the alternative, forward along with such notice, a crossed postal order of the requisite amount]. Explanation.-For the purpose of this rule "quarter" means a quarter ending on 31st March, 30th June, 30th September and 31st December of any year.

Rule - 9. Fixing six days in year for additional overtime.

(1)     An employee may be required or allowed to work in a shop or commercial establishment under subsection (3) of section 14 in excess of the period fixed under sub-section (1) of the said section 14 on any of the following days for purposes of making of accounts, stock taking or settlements if such excess period does not exceed twenty-five hours:

(i)       The 31st day of March;

(ii)      The 30th day of June;

(iii)     The three days preceding the Diwali, New Year day;

(iv)    The 31s day of December;

(2)     On any of the days mentioned in sub-rule (1), the operation of the provisions relating to closing hours in sections 11 and 13 shall remain suspended.

Rule - 10. Notice to be given to inspector when additional overtime is to be worked.

Notice of the intention to require employees in a shop or commercial establishment to work under sub-section (3) of section 14 in excess of the period fixed under sub-section (1) of that section on any day [10][specified] under rule 9 shall be given by the employer either in English or in Marathi, Gujarati or [11][Hindi (in Devnagari Script)] (hereinafter referred to as the said languages) to the Inspector within whose jurisdiction such establishment is situated at least 24 hours before such day:

Provided that if the employer for reasons beyond his control is unable to give the requisite notice at least 24 hours before such day, he shall give the notice on such day.

The term "reasons beyond control' has had important ramifications under Sec. 25-FFF of the Industrial Disputes Act, relating to closure compensation. The principles enunciated there is not strictly applicable in interpreting the term under the Shops Act because the circumstances are different but it would be a helpful reference in explaining the term. Labour trouble creating a law and order situation forcing the management to close down was held to be a closure "on account of unavoidable circumstances beyond the control of the employer". Bhattacharjee Rubber Works (Private) Ltd. v. Bhattacharjee Rubber Works Workers Union 1960 II LLJ 198. Mere financial difficulty or impossibility to carry on the business, was held, not to be a circumstance beyond the control of the employer. Rama Krishna Ramnath v. Presiding Officer, Labour Court, Nagpur 1970 II LLJ 306 S.C.

The burden of proof is on the employer to prove that it was beyond his control and that the circumstances were unavoidable, Kalinga Tubes Ltd. v. Their Workmen 1969 I LLJ 557 S.C.

The principle behind 'reasons beyond control' lies in the maxim lex non cogit ad impossibilia'. When performance of the prescribed condition is an impossibility, it is understood to have dispensed with the performance of such a condition. Reasons beyond control is a question of fact and would vary from case to case.

Rule - 11. Manner of publication of order under sub-section (I-B) of section 18.

An order fixing the day on which shops and commercial establishments are to be closed under sub-section (IB) of section 18 shall be published by the State Government in the Official Gazette and by the local Authority in any newspaper in any of the said languages circulating in the area within its jurisdiction.

A copy of the order so published shall be exhibited on a notice board in the office of the Inspector.

Rule - 11-A. Form of register for entering refusal of leave.

The register for entering refusal of leave to be kept under sub-section (3) of section 35 shall be in Form EE and shall be kept in five parts as follows:-

Part I - Shops.

Part II - Commercial Establishments.

Part III - Residential Hotels.

Part IV - Restaurants and Eating Houses.

Part V - Theatres and other places of Public Amusement or Entertainment.

Rule - 12. Fixing times and methods for cleaning establishments.

(1)     Subject to the provisions of sub-rule (2), in every establishment,-

(a)      all the inside walls of the rooms and all the ceilings and tops of such rooms (whether such walls, ceilings and tops be plastered or not) and all the passages and staircases shall be lime-washed or colour-washed at least once in every two years, unless in the opinion of the local authority and such walls, ceilings, passages or staircases being rendered unclean they require to be lime-washed or colour-washed earlier before the expiry of the period of two years;

(b)      all the beams, rafter, doors, window frames and other woodwork with the exception of floors shall be either painted or varnished once in seven years.

(2)     The dates on which lime-washing, colour-washing, painting or varnishing is carried out under sub-rule (1) shall be duly entered in a register maintained in Form F, which shall be shown to the Inspector when required.

(3)     Nothing in this rule shall apply to-

(a)      [12][rooms (not being rooms in residential hotels, restaurants and eating houses,) used only for storage of articles;]

(b)      walls or tops of rooms which are made of galvanised iron, tiles, asbestos sheets or similar material or glazed bricks;

(c)      any other establishment or part thereof in which lime-washing or painting is in the opinion of the local authority or State Government, as the case may be, unnecessary to satisfy the requirements of section 39 as to cleanliness.

Rule - 13. Rubbish not to be allowed to accumulate.

No rubbish, filth or debris shall be allowed to accumulate or to remain on any premises in an establishment in such position that effluvia there from can arise within the establishment.

Rule - 14. Precaution against fire.

No person shall smoke or use a naked light or cause or permit any such light to be used, in the immediate vicinity of any inflammable material in any establishment.

Rule - 15. First aid appliances.

A first-aid box maintained under section 42-A shall contain the following equipments together with a book of instructions in first-aid, that is to say:-

(i)       3 small sterilized dressings.

(ii)      2 medium size sterilized dressings.

(iii)     2 large size sterilized dressings.

(iv)    2 large size sterilized burn dressings.

(v)      2 (1/2 oz.) packets sterilized cotton-wool.

(vi)    1 pair of dressing scissors.

(vii)   1 (1 oz.) bottle containing solution of iodine or mercury-chrome.

(viii)  1 (1 oz.) bottle containing solution of salvolatine having the dose and mode of administration indicated on the label.

(ix)    1 (1 oz.) bottle containing potassium permanganate crystals.

(x)      any antidote for burns.

Rule - 16. Supervision to be exercised by Government over local authority.

Government may exercise its supervisory functions through the Commissioner of Labour, Bombay and such of the officers under him as may be authorised by him in that behalf and give such directions to the Local Authority as may appear to it necessary for the proper enforcement of the Act.

Rule - 17. Qualifications of Inspectors.

(1)     No person shall be appointed to be an Inspector under the Act unless he is a graduate of a recognised University [13][and is able to speak, read and write Hindi or any language of the local area for which he is to be appointed as an Inspector:

Provided that, in any special circumstances, a person who is not a graduate may be appointed to be an Inspector by Government or, with the previous sanction of Government, by any local authority]:

Provided further that where any such appointment is for a period not exceeding sixty days, no such previous sanction shall be necessary.

(2)     No person shall be appointed to be an Inspector under the Act, or having been so appointed, shall continue to hold office, if he has or acquires, directly or indirectly by himself or by any partner, any share or interest in any establishment to which the Act applies in the area for which he is to be or has been appointed:

Provided that nothing in this sub-rule shall apply-

(i)       to any person who has been permitted by the authority competent to appoint him as inspector to hold or acquire directly or indirectly by himself or in the name of any member of his family living with him or dependent on him, any share or interest in any registered Co-operative Bank or Co-operative Society or in any public limited company, or

(ii)      to any person who acquires by inheritance any share or interest in any firm or business but who is not a working partner therein.

Rule - 18. Duties of Inspector.

(1)     The Inspector shall make such examination as may appear to him to be necessary for the purpose of satisfying himself that the provisions of the Act and of these rules and any orders issued by Government or the local authority under the Act are duly observed. In particular, he shall satisfy himself-

(i)       that the establishments are duly registered under the Act;

(ii)      that the registers, records and notices required to be maintained or displayed under the Act or these rules are properly maintained or displayed;

(iii)     that the intervals of rest and holidays required to be granted or observed under the Act are granted and observed and that the limit of hours of work and spread-over laid down under the Act are not exceeded;

(iv)    that the provisions of the Act and any orders issued by Government or the local authority regarding the opening and closing hours are duty observed;

(v)      that the identity cards for employees in residential hotels, restaurants and eating houses, are properly provided;

(vi)    that the provisions of the Act and these rules regarding leave are properly observed;

(vii)   that the provisions of the Act and these rules relating to cleanliness, lighting and precautions against fire are properly observed;

(viii)  that the provisions of the Act relating to the payment for over-time work are duly observed; and

(ix)    that no child is allowed to work in any establishment.

(2)     The Inspector shall for the purpose of exercising the powers under clause (bb) of section 49 obtain it writing the previous permission-

[14][(i) in local areas falling within the limits of the Corporations constituted under the Bombay Municipal Corporation Act (Bom. III of 1888), the Bombay Provincial Municipal Corporations Act, 1949 (Bom. XLI of 1949), or the City of Nagpur Corporation Act, 1948 (C.P. and Berar II of 1950), or in local areas not falling within the limits of any local authority of the prescribed authority];

[15][(ii) in local areas falling within the limits of any authority (not being any of the Corporations referred to in clause (b) wherein the administration of the Act has not been taken over by the State Government under section 44-A, of the Chief Executive Officer or the Deputy Chief Executive Officer of such local authority;

(iii) in local areas falling within the limits of any local authority referred to in clause (ii) wherein the administration of the Act has been taken over by the State Government under section 44-A, of the prescribed authority].

Rule - 19. Submission of diary by Inspector.

The Inspector shall keep a file of the records of his inspection arranged suitably, and shall submit to the officer or local authority to whom he is subordinate on the 15th day of each month, a diary in Form G showing the work done in the preceding month. A copy of the said diary shall be retained by the Inspector.

Rule - 20. Maintenance of registers and records and display of notices.

(1)     Every employer or manager of a shop or commercial establishment shall maintain a register of employment in Form H, provided that where the opening and closing hours and period of interval for rest are ordinarily uniform, the employer or manager may maintain such register in Form J.

(2)     Every employer or manager of a residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment shall,-

(a)      maintain a register of employment in Form I, provided that where the opening and closing hours and period of interval for rest are ordinarily uniform, the employer, or manager may maintain such register in Form K.

(b)      exhibit in his establishment a notice in Form L, specifying the day or days of the week on which his employees shall be given a holiday (such notice being exhibited before the employees to whom it relates cease work on the Saturday immediately preceding the first week during which it is to have effect).

(3)     The provisions of clause (b), sub-rule (2), shall apply mutatis mutandis to every employer or manager of a shop or commercial establishment which is entitled to exemption from section 18(1) of the Act subject to the condition that employees concerned are given one day in a week as a holiday and no deductions are made from their wages on account thereof.

(4)     Every employer or manager shall maintain a register of leave in Form M.

(5)     The employer or manager shall provide each employee with a book called "Leave Book" in Form N. The book shall be the property of the employee and the employer or his manager shall not demand it except to make entries therein and shall not keep it for more than a week at a time:

Provided that with the consent in writing of an employee whose wages are Rs. 300 per month or more, the "Leave Book" may be kept in the custody of the employer.

(6)     If any employee loses his "Leave Book" the employer or manager shall provide him with another copy on payment of [16][fifty] paise, and shall complete it from his record.

(6-A) Where any employer or manager maintains a muster roll-cum-wage register under sub-rule (1) of rule 27 of the Maharashtra Minimum Wages Rules, 1963, it shall not be necessary for him to maintain the register of employment referred to in sub-rule (1) or (2), or the register of leave in sub-rule (4), or to provide each employee with the leave book under sub-rule (5).

(7)     Every employer or manager shall exhibit in his establishment notice containing such extracts of the Act and these rules, in any of the said languages of the majority of its employees, as the local authority or Government may direct.

(8)     Any notice required to be exhibited under these rules shall be exhibited in such manner that it is readily seen and read by any person whom it affects, and shall be replaced whenever it becomes defaced or otherwise ceases to be clearly legible.

(9)     In any register or record which an employer or manager is required to maintain under these rules, the entries relating to any day shall be made on such day and shall be authenticated under the signature of the employer or the manager on the same day:

Provided that the entries relating to overtime work shall be made immediately after completion of such overtime work:

[17][Provided further that in case both the employer and the manager are absent on any day the entries shall be authenticated by such person as may be authorised in writing by the employer].

(10)   The registers and records relating to any year shall be preserved for period of two years after the last entry is made therein.

(11)   If on an application made by an employer or manager in writing, the local authority or Government, as the case may be, is satisfied that any muster roll, register or record maintained by the employer or manager gives in respect of all or any of the employees in his establishment the particulars required to be shown in any register, record, or notice [18][referred to in] this rule, the local authority or Government, as the case may be, may by order in writing direct, that such muster roll, register or record shall to the corresponding extent be maintained in place of such register, record or notice [19][referred to in] this rule as the case may be.

(12)   Save as provided in sub-rule (7), all registers, records, muster rolls and notices required to be maintained, exhibited or given under this rule shall be [20][in Marathi in Devnagri Scrip or in English or] in any of the said languages.

(13)   (a) Every employer, or manager shall maintain a visit book in which an Inspector visiting the establishment may record his remarks regarding any defects that may come to light at the time of his visit or give directions regarding the production of any documents required to be maintained or produced under the provisions of the Act and the Rules. Where the Inspector has no remarks to offer, he shall merely enter the date and time of his visit and sign on the book. The visit book shall be produced when demanded by an Inspector.

(b) The visit book shall be a bound book of size 7" X 6" containing at least 100 pages, every second page thereof shall be consecutively numbered and the unnumbered page between each two consecutively numbered pages shall have a vertical perforated straight line on the margin side at a margin of 1". Every numbered page shall contain the following headings at the top (1) Name of the establishment or employer, (2) Locality, (3) Registration number of the establishment, (4) Date, (5) Time.

(c) In case the visit book containing the remarks passed by an Inspector is lost, destroyed or defaced, the employer or manager shall forthwith report in writing the loss of the visit book to the Inspector of the area and immediately maintain a new visit book.

(14)   Where an office, store-room, godown, warehouse, or work place used in connection with the trade and business of a shop is situated at premises other than the premises of the shop, all registers, records, muster rolls, visit books and notices required to be maintained, exhibited or given under the Act and these rules shall be separately so maintained, exhibited or given in respect of and at such office, store-room, godown, warehouse or work place.

Rule - [20-A. Name board to be in Marathi.

The name board of every establishment shall be in Marathi in Devnagari Script:][21]

[22][Provided that, it shall be permissible for the employer to have the name-board in any other language or languages or script or scripts (in addition to Marathi in Devnagari Script).]

[23][Provided further that, where the name-board in any other language or script (in addition to Marathi, in Devnagari Script) is put up, the lettering of the name-board in Marathi (in Devnagari Script) shall not be less bold than any other language or script used.]

[24][Provided also that Marathi being the official language of the State, the lettering of the name-board in Marathi (in Devnagari Script) shall be essentially written in the beginning.]

Rule - [20B.

Every employer shall display a notice on the notice board in establishment that "No child labourers are engaged". The words and letters on the said notice board shall be in DVB-TT Surekh Font and with a Lemon-Yellow colour background written in Navy-Blue colour].[25]

Rule - 21. Ascertainment of age of employee.

An Inspector may require an employer to produce within fifteen days in respect of any person employed by him one of the following documents namely:-

(1)     an authentic extract from the records of any school,

(2)     a certified copy from the Birth Register,

(3)     a certificate of age from a registered medical practitioner in Form O.

Rule - [22.

Every employer shall submit statements, application for registration, renewal of registration certificate, application for exemption, notices or any other application or documents and fees as prescribed in these rules, electronically.

Rule - 23.

(1)     The employer shall pay the electronic transaction charges for availing e-services for submitting statements, applications for registration, renewal of registration certificate, application for exemption, notices or any other application or documents and for paying fees prescribed in these rules, electronically, as provided in sub-rule (2).

(2)     The electronic transaction charges for the purposes of sub-rule (1) shall be as follows, namely: