No child to work in an establishment

Section 13 of Bihar Shops & Establishments Act, 1953 deals with no child to work in an establishment. Vide notifin. no. II/S6-1030/73 L&E-4753(2) dated 27-8-1973 (w.e.f.

Vide notifin. no. II/S6-1030/73 L&E-4753(2) dated 27-8-1973 (w.e.f. 15-8-1973) Sec. 1 | Sherghati Bazar, Dhanwar Bazar, Garkha Bazar, Ekma Bazar, Masrakh Bazar, Ghorasahan Bazar, Madhepur Bazar, Chhoti Balia, Domchanchi, Sakri Bazar, Pandaul Bazar, Bokaro Steel City, Hatia, Barauni]. 1[(q) Saria Bazar (Giridih). NOTIFICATIONS S.O. 69, dated the 9th January, 1978 .- In exercise of the powers conferred by sub-section (3) of section 1 of the Bihar Shops and Establishments Act, 1953 ( Bihar Act VIII of 1954) and in partial modification of the notifications mentioned in column 2 of the Schedule hereto annexed, the Governor of Bihar is pleased to direct that all the provisions of the said Act will be deemed to have come into force in the areas mentioned in column 5 of the annexed Schedule from the same dates from which they were brought into force in the areas mentioned in column 4 of the Schedule by virtue of the notifications specified in column 2 against them. Sl. Notification No. Date of Enforcement Old Area New Area No. 1. I/S6-108/55L-7882, dated 26th May, 1995. 1-6-1995 Jugsalai Notified Area, Doranda Notified Area. In Jugsalai Municipality (Dist. Singhbhum), Doranda Municipality (Dist. Ranchi). 2. II/S6-1036/58L-10883, dated 25th June, 1958. 15-7-1958 Nawada Notified Nawada Municipality (Dist. Nawada), Area, Gopalganj Notified Area. Jhumritelaiya Notified Area. Goplaganj Municipality (Dist. Gopalganj), Jhumritelaiya Municipality (Dist. Hazaribagh). 3. II/S6-104/60L-2032, dated 23rd Feb, 1960. 1-6-1960 Raxaul Notified Area, Sheikhpura Notified Area, Barhaiya Notified Area. Raxaul Municipality (East Champaran District), Sheikhpura Municipality (Dist Monghyr), Barhaiya Municipality (Dist. Monghyr). 4. II/S6-206/64L&E-1202, 1-3-1964 dated 3rd Feb, 1964. Gumla Notified Area, Pakur Gumla Municipality (Dist. Ranchi), Pakur Municipality (Dist. Notified Area, Madhepura Notified Area. Santhal Parganas), Madhepura Municipality (Dist. Saharsa). 1. Vide S.O. 691 dated 7.4.1979 ( w.e.f. 1.1.1979). | Sec. 1 5. II/S6-204/66 L&E-5555, 1-8-1966 dated 7th June, 1966. Warasaliganj. Warsaliganj Notified Area Committee (Dist. Nawada). Narkatiaganj Market. Narkatiaganj Notified Area Committee (Dist. West Champaran). Jhajha. Jhajha Notified Area Committee (Dist. Monghyr). Banmankhi. Banmankhi Notified Area Committee (Dist. Purnea). 6. II/S6-2014/67 L&E-9987, 1-11-1967 dated 11th August, 1967. Hilsa Market. Hilsa Notified Area Committee ( Dist. Nalanda). Piro Notified Area Committee (Dist. Bhojpur). Behea Market. Behea Notified Area Committee (Dist. Bhojpur). 7. II/S6-207/68 L&E-1182 1.9.1968 dated 2nd August, 1968. Barauli Market. Barauli Notified Area Committee (Dist. Gopalganj). 8. II/S6-1030/73 L&E-1758 15-8-1973 dated 27th June, 1973. Khusrupur Market. Khusrupur Notified Area Committee (Dist. Patna). Barbigha Market. Barbigha Notified Area Committee (Dist. Monghyr). Bahadurganj Market. Bahadurganj Notified Area Committee (Dist. Purnea). Khunti Market. Khunti Notified Area Committee (Dist. Ranchi). Sherghati Market. Sherghati Notified Area Committee (Dist. Gaya). Sec. 1 | S.O. 691, dated 7th April, 1979 .- In exercise of the powers conferred by sub-section (3) of Section 1 of the Bihar Shops and Establishments Act, 1953 (Bihar Act VIII of 1954), the Governor of Bihar is pleased to appoint the 1st of January, 1979 as the date on which all the provisions of the said Act shall come into force in the place as mentioned in column 2 of the Schedule hereto annexed. SCHEDULE Sl. No. Place Revenue Thana Pargana District 1. Saria Bazar Rampur Giridih S.O. 1725, dated 22nd December, 1979 .- In exercise of the powers conferred by sub-section (3) of Section 1 of the Bihar Shops and Establishments Act, 1953 ( Bihar Act VIII of 1954), the Governor of Bihar is pleased to appoint the 1st January, 1980 as the date on which the provisions of the said Act shall come into force in the places as mentioned in column 2 of the Schedule hereto annexed. SCHEDULE made Sl. No. Place Revenue Village/ Panchayat Thana No. Boundary District 1. Thakurganj Bazar Gothra-16 Kanakpur-17 North - L.R.P. Road Purnea Purnea. Chouhadi Gothra. South - Boundary of Village Kanakpur. East - Burhi Dangi River, village Kanakpur. West - L.R.P. Road, Village Gothra. 2. Tribeniganj Bazar Latona-273 Thalha North - Kathakholwa Saharsa South - Mora Garia-269 East - Duparakha West - Babhangama. 3. Dhaka Bazar Dhaka Chainpur North - Pipra Wazid. East Champaran Panchayat. Dhaka Ramchandra Panchayat. South - Dhaka Lahan 106. East - Barharwa, Siwan. West - Sitalpatti. a The 18th September 1985 S.O. 939, dated the 30th September, 1985 .- In exercise of the powers conferred by sub-section (3) of section 1 of the Bihar Shops and Establishments Act, 1953 ( Bihar Act VIII of 1954) and in partial modification of notification no. II/S6-1036/58-10883, dated the 25th | Sec. 2 June 1958, the Governor of Bihar is pleased to appoint the date on which the name of the Jharia Mines Board of Health was changed to Coal Mining Area Development Authority, Dhanbad to be the date on which all the provisions of the said Act shall come into force. The 13th April 1985 S.O. 1154, dated the 7th November, 1985 .- In exercise of the powers conferred by sub-section (3) of section 1 of the Bihar Shops and Establishments Act, 1953 ( Bihar Act VIII of 1954) and in continuation of Labour Department, Bihar notification no. I/S6-108/55L- 1794, dated the 5th February, 1955, so far it relates to Ranchi, the Governor of Bihar is pleased to appoint the date of issue of this notification as the date on/ from which all the provisions of the said Act shall come into force in all such areas of Ranchi Municipal Corporation which fall beyond the areas of the Ranchi Municipality. The 12th April 1985 S.O. 1156, dated the 7th November, 1985 .- In exercise of the powers conferred by sub-section (3) of section 1 of the Bihar Shops and Establishments Act, 1953 ( Bihar Act VIII of 1954) and in partial modification of the notifications mentioned in column 1 of the Schedule hereto annexed relating to the respective area noted in column 2 of the said Schedule, the Governor of Bihar is pleased to appoint the date, on which the municipal corporations mentioned in column 2 of the Schedule came into existence to be the date on/ from which all the provisions of the said Act shall be deemed to have come into force in all those areas. SCHEDULE Column 1. Column 2. No. L/S6-108/55-1974, 1. Bhagalpur Municipal Corporation. dated the 5th February, 1956. And 2. Gaya Municipal Corporation. 3. Darbhanga Municipal Corporation. I/S6-106/57L-3644, dated the 28th February, 1957. 2. Definitions. In this Act, unless there is anything repugnant in the subject or context - (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; (1A) "child" means a person who has not completed the age of fourteen years;

(2) "closed" means not open for the service of any customer to any business connected with the establishment;

(3) "day" means a period of twenty-four hours beginning at midnight:

Provided that, in the case of an employee whose hours of work begins before and extend beyond midnight, day means a period of twenty-four hours beginning at the hour his work commences; 1[(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 person employed in a factory who are not worker within the meaning 1. Subs. by Act 2 of 1975. Sec. 2 | of the Factories Act, 1948 (63 of 1948), and for the purpose of proceeding under this Act, include an employee, who has been dismissed, discharged or retrenched for any reason whatsoever;

(5) "employer" means a person who owns or exercise ultimate control over the affairs of an establishment and includes a manager, agent or any other person in the immediate charge of the general management or control of such establishment; 1[(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 service appertaining to such establishment;

(ii) a shop, restaurant, residential hotel, eating house, theatre or any 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)].

(7) "family" in relation to an employer means the husband or wife, child or children, father or mother, brother or sister, brother's son, sister's son, daughter's son and son's son of such employer living with him and dependent on him;

(8) "holiday" means a day on which an establishment shall remain closed or on which an employee shall be given a holiday under the provisions of this Act;

(9) "Inspecting officer" means an Inspecting Officer appointed under sub-section (1) of section 29 and includes the Chief Inspecting Officer, Additional Inspecting Officer and ex-officio Inspecting Officer appointed under or referred to in that section;

(10) "Leave" means leave provided for in Chapter IV of this Act; (10A) "Opened" means opened for the service of any customer or for any business connected with the establishment; (10B) "Period of work" means the time during which an employee is at the disposal of the employer;

(11) "Prescribed" means prescribed by rules made under this Act;

(12) "Residential hotel" means any premises used for the reception of guests travellers desirous of dwelling or sleeping therein and includes a club;

(13) "Restaurant" or "eating house" means any premises in which is carried on wholly or principally the business of the supply of meal or refreshments to the public or a class of the public for consumption on the premises;

(14) "Retail trade, or business" includes the business of a hawker, hairdresser, the sale of cooked food, refreshments or intoxicating liquors and retail sale by auction;

(15) "Schedule" means the Schedule appended to this Act;

(16) "Shop" means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers and includes an office, store-room, godown, warehouse and work place, whether in the same premises or elsewhere, used in connection with such sales or services, but does not include a restaurant, a residential hotel, eating house, theatre or other place of public amusement or entertainment; | Sec. 2 (17) "Spread over" means the period between the commencement and the termination of an employee on any day;

(18) "Theatre" includes any premises intended principally or wholly for the exhibition of pictures or other optical effects by means of a cinematograph or other suitable apparatus or for dramatic performance, or any other public amusement or entertainment;

(19) "Wage period" in relation to the payment of wages of any employee, means a wage period fixed by an employer under section 20 in respect of such employee;

(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;

(21) "Week" means a period of seven days beginning at midnight of Saturday; 1(21A) "Year" means a year commencing on the first day of January, and (22) "Young person" means a person who is not a child and has not completed the age of eighteen years. Comments & Case-Law Sec. 2 (4) [Mode of payment cannot decide the issue of relationship of master and servant. The mere fact that a person was paid on piece rate will not take him out of the definition of a "person employed" if there are other circumstances which indicate of his regular employment. Whitway Dresses v. Addl. Labour Court, 1988 (2) LLJ 345. The person claiming to be an employee must be one wholly or principally employed in and in connection with any establishment. Canara Bank v. Appellate Authority, 1981 Lab. IC 1043. The following were held employees - Sales Officers of an industrial undertaking. Avery India Ltd. v. Commissioner for Workmen Compensation, 6 FJR 432. Field Workers employed for guiding, supervising and controlling the growth (or production) and supply. State of U.P. v. M.P. Singh, 1960 (1) LLJ 270. Accountant dealing with cash. Motipur Sugar Factory v. Rikhdeo Pd., CWJC No. 629 of 1971 decided on 14-4-1975. A goldsmith appointed by a Bank as an appraiser, though may not be called an employee in the literal meaning of the term but is entitled to the benefits of the Act. Canara Bank vs. Appellate Authority. 1978 (1) LLJ 324. Factory workers attached to such parts of establishment which comes under this Act, and not guided by Factories Act. Motipur Sugar Factory P Ltd. vs. Sri Rikhdeo Prasad, 1969 PLJR 270; Rohtas Industries Ltd. vs. Ram Lakhan Singh, 1978 BBCJ 498C. But the following are not employees - Person employed as canvasser. Avery India Ltd. vs. Addl. Commissioner for Workmen Compensation, 1978 (1) LLJ 92; M/s. United Wireropes Ltd. vs. Addl. Commissioner for Workmen Compensation. 1976 (1) LLJ 226. Person employed as a domestic servant at officer's residence. Ganesh Flour Mills Co. Ltd vs. Labour Court, 1971 (1) LLJ 287 : 1971 Lab. IC 225. Working journalists. Samachar Bharti vs. Kedar Nath, 43 FJR 30. 1. Ins. by Act 12 of 1961. Sec. 2 | The term 'employee' does not include a person holds a civil post under the State or Central Government. Such a person is a person serving or employed under the State and he comes under the administrative control of the State. Rohtas Industries vs. Ram Lakhan Singh, AIR 1978 SC 849 : (1978) 2 SCC 140. See also Dr. S. L Agarwal vs. General Manager, Hindustan Steel Ltd., AIR 1970 SC 1150. Mere assignment of duty to check and report the faults of other workmen, will not make the employee concerned a supervisor or manager. National Engineering Industries Ltd. vs. Kishan Bhageria, 1988 (2) SLJ 23. Members of a co-operative society formed with the principle object of providing employment to its members, are not employees even if remuneration is paid to them. E.S.I. Corpn. vs. Laxmi Power Loom Weavers Co-opt. & Sales Society, 1986 Lab. IC 370. On a plain reading of the provisions of section 2 (4) it is clear that even persons employed in factories are intended to be included within the meaning of the definition of the term "employee" in the Bihar Act, by virtue of the inclusive clause contained therein. However, there are two exceptions, namely, (a) those persons who are not "Workers" within the meaning of Factories Act; and (b) those persons who are not working in managerial capacity. M/s. I.T.C. Ltd. vs. State of Bihar, 1996 (1) PLJR 297. 'Causal worker' not employed but engaged for specific item of work are not employees. Regional Director, E.S.I. Corpn. vs. P.R. Narhari Rao, 1986 Lab. IC 1981. -Section 2(4)- on a plain reading it would reveal that even persons employed in a factory by the inclusive clause in the second sentence of the definition are employees within the meaning of the Act-but it has to be noticed that two exceptions have been carried out from the category of such persons, namely, (i) who are not workers within the meaning of Factories Act; such workers do not come within the exclusive definition of the term "employees"; and - (ii) who are not working in managerial capacity. M/s. I. T.C. Ltd. vs. State of Bihar, 1996 (I) PLJR 297. -Section 2(4) read with Factories Act, 1948, Section 2 (1)-reading both the provisions together, there would be no doubt that the "worker" as defined in the Factories Act, should be a person employed in the premises or precincts of the factory and it is not necessary that such worker must be directly connected with the manufacturing process, but those who are off on any other work connected with or his work is incidental to the manufacturing process in a factory are included. M/s. I.T.C. Ltd. vs. State of Bihar, 1996 (I) PLJR 297. -Sections 2(4) and 6 read with Section 2(1) and (m) of Factories Act, 1948-since the workers of the cigarette factory engaged in its Printing Press are not employed as covered under Section 2(4) and 6 of the Bihar Shops and Establishments Act, it is not required to be registered under the provisions of Rule 3 of the Bihar Shops and Establishments Rules. M/s. I.T.C. Ltd. vs. State of Bihar, 1996 (I) PLJR 297. Sec. 2 (5) [The phrase "in the immediate charge of the general management or control of such establishment" qualify and control and the three expressions preceding therein, i.e. Manager, agent or any person. V. Poddar vs. State of Bihar, 1978 BBCJ 498. | Sec. 2 Manager of a Bank is also an employer. G. S. Joshi vs. State of Mysore, 40 FJR 29. Owner of a restaurant at railway station is an employer. State of Bihar vs. J. P Singh, 1964 BRLJ 1 : 1963 BLJR 782. The manager of a factory which is under the ultimate control of a corporation though may be in charge of general management and disbursement, is not an employer. Bihar State Leather Ind. Dev. Corpn. vs. Chiraguddin Ahmad, 1981 BBCJ 111. A person who does not own or exercise control over the affairs of an establishment, cannot be said to be the 'Manager' and therefore is not liable to be prosecuted, in absence of specific averment that he was the person in immediate charge of management. Ravindra Nath Dutta vs. D. K. Barmun, AIR 1969 Pat. 371 : 1969 BLJR 510. Where a worker or group of workers are engaged to produce goods or services and these goods or services are for the business of another person, that person is the 'employer'. The employer is required only to have control over the employees' skill and continued employment. Hussain Bhai vs. Alath Factory Tez Hilali Union, AIR 1978 SC 1410: (1978)4 SCC 257. Sections 2(5) and 26(2) complainant employed as Asstt. Administrative Officer on probation period which was extended twice and he was allowed to continue even after last extension and thereafter his service terminated with one month's pay for the notice- - the Tribunal should have applied proper test before holding that his complaint before it was maintainable-his appointment letter shows that he was appointed in the organisation which term includes, both factory and head office-he was mostly employed in the factory and the nature of his job was Supervisory-mere extensions of his service and continuing him beyond last extension did not amount to his automatic confirmation and therefore, terms of contract of appointment still applied-however, a person on probation cannot be removed before the expiry of the period of probation except in cases of unsatisfactory service or misconduct-moreover, the High Court cannot interfere with the findings of Tribunal unless it is clear that the findings under review are perverse-Tribunal having awarded only compensation and not his reinstatement, the High Court would not interfere. Bihar Air Products Limited vs. Presiding Officer, 1999(1) PLJR 883.] Sec. 2 (6) [To bring an establishment within the ambit of this Act it has to be seen whether the concern undertakes habitually the production and distribution of goods or renders any services with the help of employees. As such the 'commercial nature' of the establishment is the essential requirement for bringing the establishment within the meaning of Sec. 2 (6) of this Act. The State Government's power to issue notification including some other establishments is confined to something which is similar to or analogous to what precedes the word "such". The word used is "such" and not "any". Therefore, had the power been to declare something else or something dissimilar to what is mentioned earlier, the word "any" would have been there and not the word "such". State of Maharastra vs. Smt. Dhanlaxmi V. Meisheri, 1981 Lab. IC 907. For purpose of classifying a premises as an establishment under the Act, the dominant factor is the presence or absence of the element of business or trade. Bihar State Marketing Board vs. Chief Inspecting Officer, 1985 PLJR (NOC) 50 : 1985 BRLJ 154: 1985 Lab. IC 1820. Sec. 2 | Municipal Board is an establishment as it engages labour and effort of persons. Municipal Board vs. Addl. Labour Commissioner, 1986 Lab. IC 1528. The following are establishments- A club, whether it makes a profit or not. United Club vs. Jt. Commissioner, 1986 PLJR (NOC) 59. A financial institution rendering service to its customers by advancing moneys to purchase vehicles on hire-purchase basis. M/s. Sundaram Finance Ltd vs. State of Tamil Nadu, 1981 Lab, IC (NOC) 108. Restaurant situated in railway premises. State of Bihar vs. J. P Singh, 1964 BRLJ I : 1963 BLJR 782. Registered office of India Chamber of Commerce. Chief Commissioner vs. Federation of India Chamber of Commerce and Industry, AIR 1974 SC 1527: 1974 (2) LLJ 271 : 1974 Lab. IC 1007. A photographer's Studio. State of U.P. v. Manmohan Nautyal, 42 FJR 252. Banks, Canara Bank v. Appellate Authority, 1978 (1) LLJ 324; South India Bank Ltd. v. T D. Pichuthayappan, 1954 (1) LLJ 289; Commercial Bank Ltd. v. Authority under Payment of Wages Act, 1958 (2) LLJ 31; Canara Bank v. Appellate Authority, 1981 Lab. IC 1034. Bihar State Electricity Board. Electrical Executive Engineer v. S.P. Pankaj, 1966 BLJR 120 : 1967 (1) LLJ 602. See also Madras State Electricity Board v. Commissioner, 1961 (1) LLJ 297. Canteens run by employer for employees but also thrown open to public. Nagpur Corpn. (Civil) Canteen v. P.P. Kulkarni, 1975 Lab. IC 1382. Where the doctor runs several services in the premises with the help of others and such services can be had by any one though he is not the patient, on payment of charges, it would not be rendering professional service but would be in the nature of running a business or trade. Consequently, such an establishment would come within the purview of a business or trade for profit. Therefore, where a physician apart from rendering medical advice or treatment to his patients admittedly provided three other services viz.

(1) a Pathological Laboratory, (ii) X-ray facilities and (iii) arrangements for indoor patients; and all these services were available also to persons who were not his patients and were the patients of other doctors, it is apparent that the place was run and operated upon by the physician not merely as a doctor's clinic. In absence of any averment that these services were being rendered as a charitable institution or on "no profit-no loss basis", the establishment would be deemed to be of commercial nature covered under the Act. Vinai Kumar Gupta v. Asstt. Labour Commissioner, 1981 Lab. IC 1433. But the following arc not establishments :- Transport Undertakings covered by Motor Transport Workers Act. Bihar State Road Transport Corpn. v. Orang Bahadur, AIR 1968 Pat. 200; Amarnath Singh v. Presiding Officer, 1969 BLJR 1078 : 1969 PLJR 466 : S.K. Agarawal v. Asstt. Inspector of Labour, 42 FJR 332; Narayan Sharaf v. S.S.P. Sinha, 1970 Lab. IC 1651; Cheram Transport Ltd. v. Addl. Commr., 1979 (1) LLJ 233. Office of a chartered Architect. L.M. Chitale & Sons. v. Commissioner of Labour, 1963 (2) LLJ 747. Hostel attached to educational institution working on no profit no loss basis. National Institute of Engineering Society v. Labour Inspector, 1975 Lab. IC 1134. | Sec. 2 Establishment of a Contractor. K.P. Poulose v. Asstt. Labour Officer, 47 FIR 153. Office of an Advocate. Sakharam Narayan Kherdekar v. City of Nagpur Corpn., AIR 1964 Bom. 200: 1964 (1) LLJ 156, see also V. Sasidharan v. M/s Peter & Karunakar, AIR 1948 SC 1700 : 1948 Lab. IC 1587. If the nature of work is such that it cannot be operated from a permanent location. Radha Kant Singh v. State of Bihar, 1977 BBCJ 351. Private dispensary of a Doctor. Dr. Debendra M. Suri v. State of Gujrat, AIR 1969 SC 63 : 1969 BRLJ 67. See also Vinai Kumar Gupta v. Asstt. Labour Commissioner, 1981 Lab. IC 1433. A maternity home established and run by a doctor. State of Maharashtra v. Smt. Dhanlaxmi v. Meisheri, 1981 Lab. IC 907. Tee Depot. Ramchandra v. State of Punjab, AIR 1963 Pun. 148 : 1963 (1) LLJ 620. Establishment of a Chartered Accountant. Merchant N. E. v. Bombay Municipal Corpn., AIR 1968 Bom. 283: 1968 (1) LLJ 187. Stall and space of hawkers. Abdul Ghani Abdul Shakoor v. State, 1961 (1) LLJ 696. Canteens run by employers. Hotel Mazdoor Sabha v. Alvares, AIR 1965 Bom. 13 : 1964 (2) LLJ 1. Godown (unless specially notified by the State Govt.) Lipton India Ltd. v. Secy. to Govt. A.P., 1978 (1) LLJ 247; State of Mysore v. Brooke Bond India (P) Ltd., 1968 (2) LLJ 309. Bihar State Village and Khadi Industries Board. Member Security. B.S. K. & V. I. B. v. D. Prasad, 1966 BLJR 381. Establishment of the treatment or care of infirm, sick, destitute or the mentally unfit. Jagdish Vastralay v. State of Bihar, AIR 1964 Pat. 180: 1964 BLJR 672. The existence of any 'employee' on an establishment is not a condition precedent to the application of the Act to the said establishment. Corporation of the City of Nagpur v. Dattatraya Balkrishna Naniwadekar, 1979 Lab. IC 337. The words "to which the Act applies" do not mean "to which the provisions of this Act could apply". These words are included in the sub-section because even in respect of certain shops, or commercial establishments and other type of establishments properly coming within the ambit of the Act, the provisions of the Act may not apply because of the exemptions granted by the State Government. ibid. The definition of the term "employer" is without any reference to "employee". A person who owns an establishment is an "employer" though there may not be any employee at all in the establishment. The same would be the position where the workers working in the establishment are the members of the employer's family. ibid. A business being run for gain or profit on a regular and systematic way is a "commercial establishment". Therefore a social organisation giving on hire for marriage and other ceremonies, premises, utensils, pandals and other articles, on a regular and systematic manner is a "commercial establishment". ibid. The commercial activity of a "Club" must mean dealing by the "Club" with non-member or outsiders. However dealing with its own members or the guests of the members on the part of any "club" will not amount to commercial activity unless such dealings are held to be a camouflage. Beldih Club v. Presiding Officer, 1991 (1) PLJR 81 : 1990 (2) BLJR 808. Secs. 3-4 | The word "Industry" as defined in section 2 (j) of the Industrial Disputes Act, 1947 is of wider amplitude than the word "establishment" defined under section 2 (6) of the Bihar Shops and Establishments Act. A "club" which does not carry out any commercial activity is not an "establishment". ibid. The use of the words "means" and "includes" in respect of any definition clause makes the definition exhaustive. ibid.] Sec 2 (8) [Sundays and other paid holidays should also be taken into account for the purpose of reckoning the total number of days on which the employee could be said to have actually worked. Workmen of A.E.I.B. Corpn. v. Mgt. of A.E.I.B. Corpn., 1986 Lab. IC 98 (SC)] Sec. 2 (16) [To constitute a concern a 'shop' within the meaning of this Act, it has to be ascertained whether the concern sells any goods or renders any services, AIR 1955 SC 62. Element of premises must be satisfied. Babubhai Prabhudas Modi v. Adelajikaluji, 1970 LLJ 225. Premises used for earning profits or gains - a shop. Khan Mohd. v. State of A.P., 1973 Lab. IC 239.] 3. Reference to time of day .- References to the time of day in this Act are reference to the Indian Standard Time, which is five and a half hours ahead of Greenwich Mean Time. 4. Exceptions .- (1) The provisions of this Act shall not apply to any precinct or premises of a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (XXV of 1952).

(2) Notwithstanding anything contained in this Act, the provisions thereof specified in the third column of the Schedule shall not apply to the establishment, employees and other persons referred to in the corresponding entry in the second column :

Provided that the State Government may, by notification, add to, omit or alter any of the entries in the Schedule in respect of one or more areas of the State and on the publication of such notification, the entries in either column of the Schedule shall be deemed to be amended accordingly. [The proviso to section (2) does not confer power on the State Government to issue a notification amending the "Schedule" appended to the Act, with retrospective effect. The word "deemed" in the aforesaid cannot be construed so as to confer such power on the State Government, which is only a "subordinate authority". State Bank of India v. State of Bihar, 1990 (2) PLJR 336. The provisions of sub-section (2) of section 4 (as amended) contain a non-obstante clause and by virtue of the deeming provision contained therein have come into effect immediately on enactment and are to affect all proceedings pending on 13.8.1985. In view of this as a result of Notification No. 10/86, issued by the State Government, from the date of publication of the Notifications the provisions of this Act will not be applicable to all establishments and branches of Public Sector Banks situated in the State of Bihar. State Bank of India v. State of Bihar, 1995 (1) PLJR 81. | Secs. 5-7 Section 4 of the Act deals with the establishments which are exempted from any one or more of the provisions of the Act. Popular Nursing House v. State of Bihar, 1995 (1) PLJR 750] 5. Rights and privileges under other laws, etc. not affected .- Nothing in this Act shall affect any right or privilege to which an employee in any establishment is entitled, at the date on which this Act applies to such establishment, under any other law for the time being in force, or under award, agreement contract, custom or usage applicable to such establishment, if such right or privilege is more favourable to him than any right or privilege conferred upon him by this Act. [The onus of proving lies on the employee where he claims to be entitled to better benefits than those given in this Act and where he succeeds in proving it, the determination of benefits will not be done in accordance with the provisions of the Act but in accordance with such contract, custom or usage as may be proved by the employee. Ram Narayan Mishra v. D. Das & Bros., 1980 Lab. IC 75. The power to suspend an employee is not an implied term in an ordinary contract of employment between the "master and servant". Such a power can only be the creature of a statute governing the contract or of an express term in the contract of employment itself. No implied term can be inferred authorising the employer to suspend the workman who is governed by the provisions of the Act during the pendency of a criminal case against him. Inter-State Transport Agency v. Frabhat Kumar Sinha, AIR 1966 Pat. 230.] CHAPTER II Establishments 1[6. Registration of establishments and renewal thereof .- The State Government may make rules requiring the registration of establishment or any class of establishments or renewal thereof and prescribing manner and the fees payable for such registration or renewal.] [In view of the fact that workers of the cigarette factory engaged in its Printing Press are not shown to be "employees" within the meaning of section 2 (4) and 6 of the Bihar Shops and Establishments Act, it has to be held that the Firm is not required to be registered under the provisions of Rule 3 of Bihar Shops and Establishments Rules, 1955. M/s. I.T.C. Ltd. v. State of Bihar, 1996 (1) PLJR 297.] 7. Opening and closing hours of establishments .- 1(1) No establishment shall on any day be opened earlier than 2[8 A.M. and closed later than 2[10 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 served in such establishment during the quarter of an hour immediately following such hour.] (2) The State Government may, by notification, after the opening or closing hours for different establishments or for different areas or for different periods of the year.

(3) When they are conducted in an establishment two or more trades or business, any or which is of such a character that, if it was sole trade or business, therein conducted, the provisions of this section would not apply to that establishment shall, so far the conduct of that trade or business is concerned, be exempt from the operation of this section. [For notification regarding changing opening & closing times, see NOTIFICATION in this book.] 1. Subs. by Act 2 of 1975. 2. Subs. for the figures "8 & 9" respectively by Act 25 of 2007. Secs. 8-10 | [Restrictions imposing opening and closing hours are not unreasonable. Art. 32 of the Constitution is not attracted. Ramdhan Das v. State of Punjab, AIR 1961 SC 1559: 1961 (2) LLJ 102. "Open" means opened for carrying out the purposes for which the establishment exits. State v. S. R. Choudhary, 1961 (1) LLJ 673. "Closed" means closed for customer's service. D. V Pathak v. Ramchandra, 1961 (2) LLJ 57. It is essential to establish that the customer's service was affected even after the prescribed hours to constitute an offence. Mere opening of the doors does not constitute an offence. Puttiah v. State of Mysore, 1961 (2) LLJ 589. But a restaurant which served refreshment through window to persons standing outside after prescribed hours, held, no offence was committed. Redbridge London Borough Council v. Wests Illford Ltd., 1958 Lab. IC 993 (Q.B.) The police has not been delegated power under this Act to inspect and institute a case. Accordingly, police official (unless specifically authorised under this Act) cannot enforce the closing hours of the shop or institute a case for such a violation. M/s Benedicts Laboratory v. State of Bihar, 1984 BRLJ 38 : 1984 PLJR 206.] 1[8. Prohibition of sales before opening and after closing hours. - Save as otherwise provided in this Act, 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 upto 11 P.M.

Provided that nothing in this section shall apply to the hawking of the newspapers.] 1[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 or more than 48 hours in a 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 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. ] 1[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.] 1. Subs. by Act 2 of 1975. | Secs. 11-12B 11. Spreading of periods of work .- The periods of work and intervals of rest of an employee in an establishment shall not be together spread over more than - (i) in the case of child, eight hours in any day;

(ii) in the case of a young person, ten hours in any day; 1[(iii) in the case of any other employee, twelve hours in any day. ] 12. Weekly holidays in establishments .- 2[xxx] (4) Every employee in an establishment shall be allowed in each week holiday of one whole day : 2[xxx] (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 be 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.) pode [The cognizance of the offence u/s 12 (1) can be taken only if the complaint is filed within six months on the date on which the offence has been committed. If period of six months expires on a holiday, the complaint must be filed on the re-opening day. Sitaram. v. State of Bihar, 1977 BBCJ 694. Opening of shop for work on a closed day is an offence. Khan Mohd. v. State of A.P., 1973 Lab. IC 239. See also 1961 (2) LLJ 67 : 1961 (2) LLJ 57. The restriction imposed is not unreasonable. Shambhu Pd. v. State of U. P., 1960 (1) LLJ 431. See also 1959 (2) LLJ 257.] 3[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 each year; and (b) such other holidays on full pay upto 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 at double the rate of his normal wages calculated by the hour.] [For list of holidays under clause (b) see NOTIFICATION at the end of this Act.] 4[12B. Every employee to be furnished with service card .- Every employee in an establishment shall be furnished by his employer with a service card in such form as may be prescribed. 1. Ins. by Act 2 of 1975. 2. Sub-Sections (1), (2), (3) and proviso of sub-section (4) of Section 12 repealed by Act 25 of 2007. 3. Ins. by Act 2 of 1975. 4. Renumbered by Act 2 of 1975. Secs. 13-16 | CHAPTER III Employment of children and young persons

Section 13, Bihar Shops & Establishments Act, 1953 (Act 8 of 1954).