Employees under bombay shops and establishemnet act

Ragvendra Singh (Querist) 25 December 2013 This query is : Resolved
u/s 35 - a (1) of bombay shops and establishment act, an employee of a establishment is entitled to 5 days of leave for every 60 days of completed service. however although i work in a establishment which comes under bombay shops and establishment act, my employer does not give me even a single leave for first six months of probation period as per the hiring docs. Is the employer entitled to make such a rule given the fact that the establishment comes under above mentioned act???? The act is silent on probation period.

u/s 66 of above act, any employee who has completed more than 3 months but less than 8 months has to be given 14 days advanced notice if the employer wants to terminate him. however as per the hiring docs, it is written that employer shall give only 1 day advance notice and not assign any reason to terminate any employee in probationary period. Is the employer entitled to make such a rule??

If the employer is notified about the aforesaid act and the employer refuses to act accordingly and goes as per the hiring docs, what remedies are avaliable to the employees???

Follow Query

Report Abuse

Kumar Doab (Expert) 25 December 2013

The employee can approach Inspector/Chief Inspector appointed under this Act.

Employee can also approach Trade Unions.

If no. of employees in the establishment has been 50 at a point of time then standing orders shall be applicable and employee can cite from it. ( Sec 38: ^[ЗВ-В.)

If standing orders are not certified Model Standing Orders shall apply.

Employee should carefully go thru the T&C, service conditions stated in appointment letter/contract of appointment drafted and printed by employer before signing it.

Any employee workman/manager/executive can negotiate the service conditions with employer and decline to accept the service conditions.

Form employees unions and ‘Works Committees’ within the companies, IC’s, or be a part of employees unions and affiliate with trade unions.

The trade unions are more than willing to embrace employees from all trades.

IN many of the states the trade unions have been successfully ensuring that such matters are resolved.
In your state trade unions are quite active.

Rajendra K Goyal (Expert) 25 December 2013
When the terms and conditions of employment has been agreed by acknowledging the appointment letter, the same is applicable till it is not contrary to the law. If the employer is not adhering to the provisions of law, labor court should be approached.

Kumar Doab (Expert) 26 December 2013

Shri Rajendra Kumar Goyal has rightly concluded that any terms and conditions that are contrary to the law shall not survive.

Even if the appointment letter drafted by employer has been signed by employee the standing orders, statues, enactments shall prevail upon any private agreement that employer might have signed with employee e.g; appointment letter, contract of employment, bond, service agreement etc.................................................

Establishment and employer can not become a parallel government or a court or judge..........................

Establishment, employer, and its executive shall always remain a subordinate and inferior to the law of the land and rights of the citizens of the republic.

The sensible executives understand it and to protect coziness of the chair shall not commit transgression.

They are sensible enough to identify a united and properly informed employee(s) and regain their senses too.

Employer is personally held responsible for faithful observance of standing orders.

Leave: The establishment: Commercial or Industrial; can not provide inferior benefits than those stated in (Name of the state) Shops and Commercial Establishments Act or Factory Act respectively.

As per negotiated settlements/Bilateral agreement between employer and employee, the employer can provide superior benefits compared to the enactments applicable to it.

Employee should always submit leave application under proper acknowledgment and employer is bound to approve or decline leave in writing and maintain proper leave record.

Employee should avoid verbal transactions.

You may check and the Labor Inspector in o/o Labor Commissioner might also be the Inspector appointed under Bombay Shops and Commercial Establishments Act or your state might have separate Shops and Commercial Establishments Inspectorate.

Before joining employee should inquire about all policies of the establishment and upon joining employee should obtain certified copies of all service conditions, standing orders, service rules, HR policy, leave policy etc.
Employer is under obligation to supply everything.

Employer is under obligation to keep all policies, rules and regulations within knowledge domain of the employee.

Ragvendra Singh (Querist) 26 December 2013
Thank you very much Mr. Kumar and Mr. Goyal. Your inputs have helped me gained a better insight in the same.

There are no standing orders in our company. I consulted the legal dept, they said they are framing it but they said as of now it is not there.

Also under bombay shops and establishment act, leaves may be accumulated upto 42 days. So i m planning to accumulate the leaves and then take it together. (perhaps i might have to teach law to hr department to get this done)

But what i am confused is in my appointment letter they have written that i will be eligible to get leaves only if I am confirmed in the company and not if i m on the probation period. Whereas the act is totally silent on probation period. Also no where in entire India as far as i know there is any law which speaks about probation and that during probation period employees will not get leaves. I don't understand how company can do such a blunder against what is clearly given in the act. Most of the companies in India put this clause in the appointment letter about not getting leaves in the probation period.

V R SHROFF (Expert) 26 December 2013
If u work for 280 days ( ??Say ), u becomes permanent, and avail leave.
ii 42 days, by that time, u r not on probation.

during prob, u get casual & sick leave in ration of days worked.

Forget petty matters, just work honestly, ur due leave will follow..
sab ka hoga, aap ka hoga.. why worry
Think Work, not leave , from the beginning..

Kumar Doab (Expert) 26 December 2013

>> As rightly advised by our senior expert Shri V.R.Shroff, employee should always remain amiable, gentle and firm.

>> You have posted that:

“There are no standing orders in our company. I consulted the legal dept, they said they are framing it but they said as of now it is not there.”

This implies the establishment has concurred that standing orders are applicable to it.

Standing orders promote good working conditions.

In an establishment to which standing orders are applicable the employee should also feel responsible (and remain vigilant too) as it becomes a document that has statutory force...................................applicable to both employer and employee.

Once the standing orders are certified these become an instrument of law..................................

Employee should not violate the provisions of standing orders.
In case of any matter standing orders being a basic document can be referred to for clarification.

>> As already posted that

“If no. of employees in the establishment has been 50 at any point of time then standing orders shall be applicable and employee can cite from it. Bombay Shops and Commercial Establishments Act ( Sec 38: ^[ЗВ-В.) ”

Till the time standing orders are drafted and certified Model Standing Orders shall apply.
The standing orders applicable to the establishment (Certified or Model) should be displayed at a conspicuous place in establishment and if employee demands a certified copy of the standing orders the concerned HR personnel designated by employer or employer himself is under obligation to supply it (be it Certified or Model) free of cost or against a nominal charge say Rs.10/.......................

Employer is also under obligation to get the standing orders certified. It is another story that the Labor Office usually do not penalize the employers that do not submit draft standing orders for certification.

Employee or anyone can apply to get the certified copy of standing orders from CO against a fixed fee say Rs.3/page.

The Certifying Officer (CO usually DLC) shall hold parleys with representatives of employer, employees before the standing orders are certified.

The employees can raise objections if any.

Therefore initiate parleys with your union. If you are still not a member become member of a effective trade union.

>>

SCHEDULE I
1
[MODEL STANDING ORDERS IN RESPECT OF INDUSTRIAL
ESTABLISHMENT NOT BEING INDUSTRIAL ESTABLISHMENTS IN COAL
MINES]
http://hrylabour.gov.in/docs/labourActpdfdocs/Industrial_Employment_Rules.pdf

9. Leave.—
(2) A workman who desires to obtain leave of absence shall apply to the 2 [employer or any other officer of the industrial establishment specified in this behalf by the employer], who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date of the application or within three days thereof, the order shall be given on the same day. if the leave asked for is granted, a leave pass shall be issued to the worker. If the leave is refused or postponed, the fact of such refusal or postponement and the reasons therefore shall be recorded in writing in a register to be maintained for the purpose, and if the worker so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof, he shall apply to 2[employer or the office specified in this behalf by the employer] who shall send a written reply either granting or refusing extension of leave to the workman if his address is available and if such reply is likely to reach him before the expiry of the leave originally granted to him.

Other points that are discussed in this thread or you may have are also elaborated in the PDF file available at the link mentioned above.

You may also go thru the e-book at following link:

http://books.google.co.in/books?id=3vddZ27nZgUC&pg=PR14&lpg=PR14&dq=SCHEDULE+I++%5BMODEL+STANDING+ORDERS+IN+RESPECT+OF+INDUSTRIAL+ESTABLISHMENTS+NOT+BEING+INDUSTRIAL+ESTABLISHMENTS+IN+COAL+MINES%5D&source=bl&ots=N6vxmexmDS&sig=rebHvJbCQbOt2prQ3wzVOQsucAw&hl=en&sa=X&ei=qhG8UrqjEIKzrge0uYCYDw&ved=0CDsQ6AEwAw#v=onepage&q=SCHEDULE%20I%20%20%5BMODEL%20STANDING%20ORDERS%20IN%20RESPECT%20OF%20INDUSTRIAL%20ESTABLISHMENTS%20NOT%20BEING%20INDUSTRIAL%20ESTABLISHMENTS%20IN%20COAL%20MINES%5D&f=false

To relate to the certified standing orders you may go thru CSO of various companies e.g.;

http://www.bccl.gov.in/Rules%20&%20Regulation/Standing-Order-Eng.pdf