merlynlawfirm1 (2)

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TN Shops and Establishment Act Remedies and
Applicability
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• The Shop and Establishment Act is applicable on
  all the commercial establishments viz, business
  centers, offices, warehouses, stores, hotels,
  eateries, amusement parks, theatres, etc.,
  nationwide. The Tamil Nadu Shop and Establishment
  Act is a state legislation governing the proper
  functioning and conduct of businesses, within the
  state of Tamil Nadu. It is one of the most
  important regulations required to be complied
  with for any business. The Labor Department of
  the State is the department from which shop and
  establishment act registration is obtained.
• APPLICABILITY
• The Shop and Establishment Act has been enacted
  by various State Governments to regulate the
  conditions of work of employees in shops,
  commercial undertakings, restaurants, etc. Thus
  the Act is designated to protect the rights of
  employees by defining uniform benefits to the
  employees irrespective of the industry and type
  of establishment he / she is employed with. It
  has been designed to regulate the payment of
  wages, terms of service, holidays, leaves, work
  conditions, hours of work, overtime work,
  maternity leave and benefits, rules for
  employment of children.

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• All commercial establishments must abide by The
  Weekly Holiday Act, 1942 enacted by the Central
  Government which governs the grant of holidays.
  However, there is no specific Central Government
  Act which comprehensively governs hours of work,
  payment of wages, health and safety in commercial
  establishments. To bridge this gap, state
  Governments have enacted a Shop and Establishment
  Act. This is to help regulate the conduct of
  commercial establishments within their
  jurisdiction.
• However, the Act does not cover the following
  persons or types of establishments and thus they
  will not come under the purview of the Tamil Nadu
  Shop and Establishment Act

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• i. Persons employed in any establishment in a
  position of management.
• ii. Persons whose work involves travelling and
  persons employed as canvassers and caretakers.
• iii. Establishments under the Central and (State)
  Government, Local Authorities, the Reserve Bank
  of India, and Cantonment Authorities
  Establishments in mines and oil fields.
• iv. The establishments in bazaars in places where
  fairs or festivals are held temporarily for a
  period not exceeding fifteen days at a time.
• v. Establishments which, not being factories
  within the meaning of the Factories Act, 1948 are
  in respect of matters dealt within this Act,
  governed by a separate law for the time being in
  force in the (State). Further, the regulations
  relating to opening and closing hours of shops,
  and grant of holidays will not apply to
  hospitals, institutions for the treatment or care
  of the sick, chemists or druggists shops as
  specified by time to time by the State
  Government.

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MAJOR ASPECTS OF THE ACT

• As per the Tamil Nadu Shop and Establishment Act,
  no child can work in any establishment. Under
  this Act, a child means a person who has not
  completed fourteen years. Further, no young
  person can work in any establishment before 6
  a.m. and after 7 p.m. Further, a young person can
  only work for seven hours in any day and forty-
  two hours in any week. Young person means a
  person who is not a child and has not completed
  seventeen years. Moreover, no person employed in
  any shop or commercial establishment shall be
  required to work for more than eight hours in any
  day and forty-eight hours in any week without
  overtime wages. Further, every person employed in
  any shop or commercial establishment should be
  allowed in each week a day holiday.

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• It is to be further noted that health and safety
  is an essential and important aspect of the
  Act.The Act provides that the premises of the
  establishment or shop must be kept clean. It
  should be free from effluvia arising from any
  drain, privy or other nuisance. It should be
  cleaned at regular intervals. It also requires
  that such premises must be fully ventilated in
  order to prevent any suffocation and that every
  establishment must be sufficiently lighted during
  all working hours. All safety measures must be
  taken and specifically precautions must be taken
  against fire.
• Any person employed in any shop or establishment
  shall be entitled, after twelve months of
  continuous service with the establishment, to
  holidays with wages for a period of 12 days in
  the subsequent period of twelve months. Employers
  are responsible for the payment of wages to
  persons employed. All employers are required to
  fix a period in respect of which wages shall be
  payable. The wage periods shall exceed one month.

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REMEDIES AVAILABLE UNDER THE ACT

• The remedy under this Act lies three-fold,
  firstly there lies an appeal from any order of
  the Inspector, secondly there exists compensation
  granted to the aggrieved person and thirdly,
  imprisonment of the employer who has failed to
  comply with the regulations laid under this Act.
  It is mandatory for all the establishment under
  the Act to obtain registration and follow all the
  rules and regulations prescribed under the same.
  In case of any failure in obtaining registration
  and following the rules and regulations of the
  Act, the establishment would be liable to pay the
  penalty. The penalty amount would vary from state
  to state. The penalties under the SE act varied
  for states and are usually Monetary or
  Operational and in few cases Imprisonment as
  well. While the monetary values are high, but the
  risk of closure notice always hang under various
  noncompliance.

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• Under Chapter V of this Act, health and safety
  standards have been laid down and any person
  under this chapter who is aggrieved of any order
  of the Inspector, an appeal lies to that extent
  to any such authority who is competent and within
  such time as may be prescribed and that the
  decision of the appellate authority shall be
  final.
• Chapter IX of the Act, specifically provides for
  the penalties to be applicable upon contravention
  of any provision of the Act and that such penalty
  may also result in imprisonment for a term which
  may extend to six months. Upon a contravention of
  by any employer covered under this Act, they
  shall be punishable for a first offence, with
  fine which may extend to 25 rupees, and for a
  second or subsequent offence, with fine which may
  extend to Rs.250. With regards to a contravention
  under Section 8 of this Act, the employer would
  be punishable with fine which may extend to Rs.10
  for a first-time offence and for any subsequent
  offence with fine which may extend to Rs.100.

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• IIt is pertinent to note that any person employed
  and the employer prefers any proceeding against
  such decision in a High Court or the Supreme
  Court, the employer shall be liable to pay such
  person employed, during the period of pendency of
  such proceedings in the High Court or the Supreme
  Court, full wages last drawn by him, inclusive of
  any maintenance allowance admissible to him as
  given under Section 41A of the Act. If an
  employer fails to comply with the provisions of
  this Section, shall be punishable with
  imprisonment for a term which may extend to six
  months, or with fine, or with both and where such
  failure is a continuing one, with a further fine
  which may extend to two hundred rupees for every
  day during which such failure continues after the
  conviction for the first and the court trying the
  offence.

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• The Act also prescribes penalty for obstructing
  an inspector and such person who wilfully
  obstructs an Inspector in the exercise of any
  power conferred on him under this act or any
  person lawfully assisting an Inspector in the
  exercise of such power, or who fails to comply
  with any lawful direction made by an Inspector,
  shall be punishable with fine which may extend to
  Rs.250 as laid under Section 46 of the Act.
  Section 46MA further provides for the compounding
  of offences, punishable under section 45 or any
  rule made under section 49 and the procedure to
  be followed for the compounding of such offences.

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CONCLUSION

• The Act serves as an expedient to provide for the
  regulation of conditions of work in shops,
  commercial establishments and for certain other
  purposes. It provides several benefits to person
  who is registered by acting as a proof of legal
  entity, which in turn provides the ground for
  opening a business bank account, it helps to
  smoothen the Inspection process whenever the
  Inspector visits the premises and help to get
  benefit under various schemes of Central State
  Governments. Moreover, many State Governments
  have implemented a Voluntary Compliance / Self
  Certification scheme to save employers from
  difficulties due to a plethora of labour laws,
  registers, and returns. The employers are also to
  comply with the legal duties and obligations as
  specified under this Act and are subject to
  penalty either as fine or compensation upon such
  noncompliance.

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