THE MAHARASHTRA SHOPS AND ESTABLISHMENT (REGULATION OF EMPLOYMENT AND CONDITIONS) ACT AND RULES: A STEP FORWARD OR A STEP BACKWARD? – PART II

Further to our Part I, this Part seeks to outline the key provisions with regards to enforcement under the Current Act and Rules and seeks to compare the legal positions of both the Previous and Current Acts and Rules.

Enforcement

Compounding of Offences

Compounding of Offences is a new provision added in the Current Act and Rules. This was not present in the Previous Act or Rules. Only those offences can be compounded which are not punishable with only imprisonment or with imprisonment and fine. The application for compounding must be made by the accused persons.[1]

It is pertinent to note that no compounding shall be allowed for persons who have committed any offence for the second time within a period of 5 years from the date of commissioning a similar offence either which was earlier compounded or where such person was earlier convicted.[2]

The State Government must direct, control and supervise the officer who is exercising his powers under this section.[3]

Further, any person who does not comply with the orders passed by the officer under this section would be liable to pay a penalty which is 20% of the maximum fine for such offence, in addition to the fine already levied.[4]

Moreover, the Current Rules prescribes that the order passed by the Compounding Officer is forwarded to the Facilitator who has to serve it to the defaulting employer within a period of 7 days. The maximum fees for the compounding of offences has been laid down to be not less than 50% of the fine specified.[5]

This is one of the most important changes that has been made in the Acts and the Rules. It is observed that the provision for compounding of offences is not existing in any of the labour and employment Acts such as the Industrial Dispute Act, 1947, the CLRA Act, 1970 or the Factories Act, 1948.

Facilitators

The qualification of Facilitators has been addressed under the New Rules which in the Old Rules (i.e. qualification of an Inspector) were very elaborate. The qualification has been reduced to include a person who has a degree from a recognized university or an equivalent qualification.[6] The duties and the powers of the Facilitators have also been elaborated as maintaining a monthly diary, serve notices and orders to concerned persons issued by the Compounding Officer, carry out inspections, maintain court cases and the register of cases, among other duties.[7]

This change would mean that now more persons have an opportunity to become a Facilitator under the Act.

Penalties

The penalties for offences or contravention to any provision of the Current Act and Rules are the following:

  1. Punishable with a fine which extends to Rupees One Lac and in case of a continuing contravention, the fine extends to Rupees Two Thousand per day of the contravention, provided such fine shall not exceed Rupees Two Thousand per worker employed. Further, for repeated contravention the fine extends to Rupees Two Lacs, provided that the fine shall not exceed Rupees Two Thousand per worker employed.[8]
  2. Where the contravention has led to an accident which has caused serious bodily injury or death of the worker, in such a case the employer shall be imprisoned for a period not exceeding six months, or with a minimum fine of Rupees Two Lacs which may extend to Rupees Five Lacs, or with both.[9]
  3. Anyone willfully obstructing the Facilitator from performing any of his/her duties under the Act or Rules will be penalized with a fine which may extend to Rupees Two Lacs; or anyone who willfully refuses to produce on the demand of a Facilitator any register or any other document in pursuance with the Act or the Rules shall be punished with a fine not exceeding Rupees Two Lacs. However, it is seen that the total amount of fine must not exceed Rupees Two Thousand per worker employed.[10]

Consequences of the Repeal of the Previous Act

Though the Current Act and Rules have come into place, it is observed that any appointment, order, rule, bye-law, regulation, notification, registration, or notice made, issued or given which are consistent with the Current Act and Rules must be kept in force unless until they have been superseded. Furthermore, the trial of any offence which is punishable under the Previous Act or Rules shall be continued as if the Act or Rules are still in force.

Comparison

SR. NO.

PARTICULARS PREVIOUS LEGAL PROVISIONS

CURRENT LEGAL PROVISIONS

1.

Worker / Employee

The term employee included not only employee but also the workers Employees are no more included under these Act and Rules.
2. Compliances

All compliances were to be done manually.

The compliances are now to be done online, digitally, therefore promoting digitalization in India.

3. Maintenance of Registers and Records It was for a period of 2 years.

It has been increased to a period of 3 years.

4.

Annual Return

There was no provision for annual returns. Within 2 months from 31 December upload the annual return.
5.

Name Board

The name board must have the name written in Marathi. Additionally, the name of any shop or establishment where liquor is served must not be the name of a legend or a fort.
6. Health, Safety and Welfare Committee There was no provision for a Committee to be formed.

The Health, Safety and Welfare Committee has been formed for promoting the welfare of the workers.

7. Women Working at Night Women were not allowed to work at night after 9:30PM, irrespective of the fact that they consent to it or not.

Women can work post 9:30PM, provided they have provided their consent for the same.

8.

Facilitators

The qualification for Inspectors was that they were to be qualified from a recognized university and must be able to speak, read and write in Hindi or any other language of the local area The Facilitator is to hold a degree from any recognized University or has an equivalent qualification.
9. Compounding of Offences There was no provision for Compounding of Offences.

The concept of compounding of offences has for the first time been introduced within the purview of the Current Act and Rules. However, it is pertinent to note that offences punishable with imprisonment only or imprisonment and fine cannot be compounded.

Conclusion

Therefore, we observe that the provisions of the compounding of offences have been introduced in the Current Act for the reason of avoiding lengthy litigations. This provision would not only reduce the burden of the judiciary but would also prove beneficial to the employer as it would reduce the time and costs of a prolonged litigation.

Rhea Sethi
Associate

[1] Section 33 (1) of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

[2] Section 33 (2) of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

[3] Section 33 (3) of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

[4] Section 33 (7) of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

[5] Rule 32 of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Rules, 2018.

[6] Rule 29 of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Rules, 2018.

[7] Rule 30 of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Rules, 2018.

[8] Section 29 of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

[9] Section 30 of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

[10] Section 31 of the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Services) Act, 2017.

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