This article is written by Shriya Singh. It discusses in detail the process of getting shops, commercial establishments, and other similar facilities registered in Rajasthan under the state legislation, that is, the Rajasthan Shop and Commercial Establishment Act 1958. It also talks about regulations regarding the working conditions in such facilities.

This article has been published by Sneha Mahawar.

To conduct business, shops and establishments require a rightful licence. However, there are different requirements for different states, such as registration procedures. To aid the fluctuations, there are separate acts to govern the shops and establishments of the respective states. 

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In light of the above-mentioned scenario, the Rajasthan Shops and Commercial Establishments Act 1958 is a significant piece of legislation in that state that governs the employment and working conditions for shops, commercial establishments, and other establishments in the state of Rajasthan.

The Rajasthan Shop and Commercial Establishment Act 1958 governs the shops, businesses, and commercial establishments in that state. It regulates the working hours, leave policies, and other issues relating to the rest period, opening and closing hours, national and regional holidays, wages, etc. Let’s delve deeper into it.

The principle goals of the Rajasthan Shops and Commercial Establishments Act of 1958 are given under

  • It gives authority to the state to establish laws in accordance with their regional culture.
  • It boosts the registration of small businesses. 
  • Protective discrimination under the Act gives female employees preferential treatment. 
  • It also aims to transform the unorganised sector into an organised one.
  • It prevents child labour. 
  • It looks after the working hours, etc. 
  • It also controls the wages for the unorganised sectors.

Section 1 of the Rajasthan Shops and Commercial Establishments Act 1958 provides for the applicability of the Act. It states that the said Act is applicable to the whole of the state of Rajasthan. It further states that it shall apply in the first instance to such areas as the state government may specify in the public domain, that is, in the official gazette.

Section 2 of Chapter I of the Rajasthan Shops and Commercial Establishment Act of 1958 is the definition clause of the Act. It assists in the interpretation of the further provisions and understanding of the Act.

Some of the important definitions of the Rajasthan Shops and Commercial Establishment Act of 1958 are discussed below. 

Apprentice

Section 2(1) defines apprentice as persons who are not less than 12 years of age and who are employed for the purpose of being trained in any trade, craft, or employment in any establishment, irrespective of whether they are employed on payment of wages or not. 

Commercial Establishment

Section 2(3) defines a commercial establishment as a commercial, banking, administrative or insurance facility for employees who are primarily engaged in clerical work, hotels, lodging, cafeterias, restaurants or any other eateries, theatres and other locations that include management of service. It also includes within it the facility for public entertainment or other entertainment purposes that the state government has, in the official gazette, declared commercial for the purpose of this Act. 

Employee

An employee, as per Section 2(5) of the Act, is a person who is wholly or principally employed in any establishment in connection with that establishment. The employer’s family is not included in it, but it has within its ambit an apprentice, any clerical or other staff members of a factory or industrial establishment who are not included within the Factories Act of 1948

Employer

Section 2(6) states that an employer is a person who has charge or has ultimate control over the affairs of any establishment. It includes the manager, agent, or any other person acting for the general management or control of any establishment.

Establishment

Section 2(7) defines an establishment as a shop or a commercial establishment. 

Shop

According to Section 2(17), shop means any premises where trade or business is carried out or where services are provided to customers. It further states that shops include offices, store rooms, godowns, or warehouses, irrespective of whether they are on the same premises or not, until they are used in connection with such trade or rendering of service. However, it does not include a commercial establishment or a shop that is attached to a factory where the persons employed in the shop are allowed to benefit from the workers under the Factories Act of 1948. 

Year

For the purpose of this Act, the term ‘year’ according to Section 2(21) means a year that begins on the first day of the month of January.

Section 3 of the Rajasthan Shops and Commercial Establishment Act 1958 provides that the action does not apply to 

  • The offences of the central government, state government, or local authorities, as well as the offences under them. 
  • The offences of the Reserve Bank of India. 
  • The establishments for the treatment or care of the infirm or mentally unfit. 
  • The people whose employment is intrinsically intermittent, like travellers or caretakers.
  • The bazaars or fairs for the sale of work for charitable or other purposes from which no private profit is derived. 
  • The libraries where the lending of books and magazines is not carried out for any financial benefit other than charitable, religious, philanthropic, or educational objectives.

Section 3(2) provides that any establishment or class of establishment or persons of the class of persons to whom the Act applies may be exempt from all or any of its provisions if expressly provided by notification in the official gazette by the state government, either permanently or for any specific period of time.

Section 4 of the Rajasthan Shops and Commercial Establishment Act 1958 provides for the registration of establishments. It specifies a time period within which the employer of every establishment has to mandatorily send a statement in the prescribed form to the inspector of the area concerned, along with the fee as may be prescribed. 

The above-mentioned time period is provided under Section 4(3). The provision bifurcates into two, as stated below:

  • For establishments that existed on the date on which the Rajasthan Shops and Commercial Establishments Act 1948 came into force, the period prescribed is within 30 days from the date on which the Act comes into force.
  • For new establishments, within 30 days from the date on which the concerned establishment commences its work. 

Section 4(1) purports the content of the prescribed form mentioned above. The form must contain:

  • The names of the employer and the manager, if there are any in the establishment.
  • The postal address of the establishment.
  • If there is any name associated with the establishment, then that name.
  • And such other particulars as may be prescribed. 

Section 4(2) envisages that once the statement in the prescribed form along with the prescribed fees is received, the inspector shall register the establishment in the register of establishments in the manner as may be prescribed upon being satisfied with the correctness of the statement received. The inspector shall issue the registration certificate to the employer in the prescribed form. 

The issued registration certificate would be required to be prominently displayed at such establishments.

Procedure for registration

The procedure for registration under the Rajasthan Shops and Commercial Establishments Act 1958 has been provided in the official domain by the state government on the Labour Department management system portal. 

The step-by-step procedure is given as follows:

  1. The applicant is required to go to the labour department management system portal. 
  2. Once the portal has opened, he has to click on the menu icon for establishment registration and then click on the option for Rajasthan Shops and Commercial Establishment Act 1958.
  3. A form will appear that has to be filled. Appropriate documents are required to be attached to the form. 
  4. After filling out the form and attaching the required documents, the applicant is required to submit the form. Once the form is submitted, the labour department management system application number will be generated. 
  5. The applicant will receive an acknowledgement message from the department on their registered mobile number as well as via email if the application and the attached documents are correct. 
  6. The applicant can then download his registration certificate online after paying the prescribed fees.

Documents required for registration

With the e-filing of the application along with the e-payment of fees, the following documents are required to be attached mandatorily:

  • Passport size photograph of the employer
  • Photo of the shop along with its owner
  • A systematic list of the management employees in .xls format
  • The rate of wages in .xls format
  • The details of employees working in the establishment in .xls format
  • The weekly holidays for the employees in .xls format
  • The address proof of the establishment.
  • If the shop is taken on rent, then a copy of its rental agreement
  • If the shop is owned, then its ownership document proof
  • An affidavit declaring that employers have registered the facility with the Ministry of Labour as per the Rajasthan Shops and Commercial Establishment Act of 1948
  • Photo ID/ PAN card/ driving licence/ Aadhar card/ passport.

Rules and Regulations for Rajasthan Shops and Commercial Establishments Act, 1958

There are a set of rules and regulations provided for registration under the Rajasthan Shops and Commercial Establishment Act 1958. They are provided on the portal of the Labour Department management system, as stated below:

  • Applicants would be considered solely liable for the correctness and generosity of the information that is uploaded by them in the form of documents for the registration form under the Act. 
  • As the fees once submitted become non-refundable, it is advised for the applicants to check the detailed guidelines and rules prior to submitting their application.
  • The registration fee would be charged accordingly in the event of addition if, during amendment, the maximum number of employees changes.
  • The employer information can be changed only in the event of the death of the current employer or in addition to the amendment fees if such a change happens during the amendment period. 
  • It is strictly specified that the misuse of the act would not be acceptable and would be treated as a crime that is punishable under the law. 
  • The right to cancel the registration is reserved with the Rajasthan Labour Department if any detail is found to be fraud at any subsequent stage.

Procedure for renewal

The portal of the labour development management system provides the procedure for the renewal of the application. 

The procedure is as under

  1. Login to the labour development management system portal. 
  2. Click on establishment renewal. 
  3. A sub-menu will appear. Click on the renewal option. 
  4. A list of Acts would appear; select the appropriate one. 

Now there would be two scenarios: either the registration number would exist in the labour development management system or the registration number would not exist.

The registration number exists in the labour development management system

  1. If the registration number exists in the labour development management system, then enter the registration number and click on the search button, or select the appropriate district, then enter the establishment date or the registration date and click on the search button. 
  2. Then select the appropriate result by clicking on the radio button in front.
  3. Click on the submit button
  4. A renewal form appears in which data is already filled. There would be renewal details to be filled out, the button for which would appear at the bottom. 
  5. Fill in the renewal details. The following details would be required: 
  • The appropriate number of years for which the renewal is required
  • The year in which the licence or registration would expire
  • The current value of the number of employees in the shop or establishment
  • The registration certificate of the establishment 
  • A scanned copy of Form 5
  1. Then click on the submit button, and the form will be submitted.
  2. The labour development management system applicant ion number will be generated, which has to be kept safe for future use regarding retrieving information. 
  3. The applicant can download the renewed certificate once he has paid the prescribed renewal fees.

The registration number does not exist in the labour development management system

  1. A text box would appear; enter the registration number in it. 
  2. Click on the search button. 
  3. As the registration number does not exist in the labour development management system database, the result would appear with a message that the record is not found in the system and would ask the user to click on the submit button to enter the information.
  4. Click on the submit button.
  5. A list of Acts would appear, select the appropriate one. 
  6. A new form would appear. Fill in all the required fields and upload the requisite documents. In addition, fill in the renewal details.
  7. Submit the form, and all the information will be sorted. A new registration number would be allotted to the user for his establishment’s future use. 
  8. The labour development management system application number will be generated, which has to be saved for retrieving information in the future.
  9. The applicant can download the renewed certificate after paying the prescribed renewal fees.

Working hours regulations

Section 7 of the Rajasthan Shops and Commercial Establishments Act 1958 states that no employee in any establishment is required to work for more than 9 hours on any day and adds an additional restriction by stating that no employee is required to work for more than 48 hours in any week. 

It also gives two conditions: 

  1. The total number of hours, including overtime, should not increase by 10 hours on any day except on days of stock-taking and preparation of accounts. 
  2. The total number of overtime hours worked by an employee shall never increase by 50 in one quarter.

Opening and closing times

According to Section 11 of the Rajasthan Shops and Commercial Establishments Act 1958, an establishment is not allowed to be opened on any day or closed on any day later than such hour as may be prescribed through a general or special order by the state government. 

The state government is given the authority to fix a time at which an establishment or class of establishments will be open or closed in any local area by general or special order after making an inquiry in the prescribed manner.

Weekly holidays

The Rajasthan Shops and Commercial Establishment Act 1958 deals with weekly holidays in Section 12. It states that

  • Every establishment must keep one day of the week closed. The employer is required to fix such a day of closure at the beginning of the year, and he should inform the inspector about it. A clear notice regarding the same should be displayed in a conspicuous location inside the shop or other commercial establishment.
  • The employer may not change such days more than once every six months. Any change made must be notified to the inspector and the appropriate change must be made in the notice that is required to be displayed in the shop or other facility.
  • Once the state government is satisfied that an establishment employs additional workers to meet the criteria that every employee in an establishment is granted at least one complete day in a week as a holiday, it shall grant permission to such establishments to remain open throughout the week. 
  • On a weekly holiday or a day when the establishment is closed, it is not considered legal for an employer to call the employee at the shop or establishment. The illegality covers the travel of any employee to perform any job related to the business of such a shop or establishment. 
  • The wages of the employee would not be withheld on account of the holiday that was granted to him as a mandate under the Rajasthan Shops and Commercial Establishment Act 1958. Even if an employee only receives payment based on daily pay, he would still be paid for that weekly holiday.

Leaves policy 

According to Section 14 of the Act, every worker who has worked 240 or more days in an establishment over the course of a year is entitled to leave with pay for a certain number of days determined at the rate of:

  • When it comes to an adult, one day for every twelve days of work they worked for the previous year.
  •  When a child is concerned, then, one day for every fifteen days of work they put in over the course of the previous year.

Certain days will be deemed days that the employee worked in an establishment for the purposes of calculating the period of 240 days or more for the purposes of this section, but he will not be entitled to leave for these days. It is,

  • any days off, whether mandated by contract, agreement, or standing orders
  • maternity leave for a woman employee for any number of days up to twelve weeks
  • the leave accumulated in the year before the one in which it is taken

Employment of women 

Section 22 of the Rajasthan Shops and Commercial Establishment Act 1958 deals with the employment of women. It states that no woman between the ages of 12 and 15 shall be posted to work in any establishment during the night, irrespective of her being appointed as an employee or otherwise.

Section 23 provides restrictions on the owners or managers of any establishment. It states that the owners or managers of the establishment shall not knowingly employ a woman during the 6 weeks following the day on which she has delivered a child. It also states that a woman shall not engage in any employment in any establishment during the 6 weeks following the day on which she has undergone delivery of her child.

Section 24 states that when a woman employed in an establishment provides notice either orally or in writing in the prescribed form to the employer stating that she is expecting a child to be delivered within 6 months from the date of such notice, she is required to absent herself from work up to the day of her delivery. 

This absence of a woman at work during a pregnancy period would be considered her maternity leave under this Act, as per Section 25. Also, her absence due to illness medically certified to arise out of pregnancy or confinement shall also be treated as authorised absence on leave with regard to her maternity leave.

Employment of children

By virtue of Section 21 of the Rajasthan Shops and Commercial Establishment Act 1958, children are not allowed to work in an establishment if they have not attained the age of 12.

Section 22 provides that a child between the ages of 12 and 15 should not be required to work in any establishment during the night, and his being appointed as an employee would be immaterial for the night shift.

Discharge 

According to Section 28A of the Act, unless there is a justifiable reason and after giving the employee at least one month’s prior notice or on payment of one month’s wages in lieu of such notice, no employer shall discharge or dismiss any employee who has been in such employment continuously for a period of not less than six months: With the caveat that such notice is not required if the employee’s services are terminated due to misconduct, as may be defined in the rules made in this regard by the state government, and supported by sufficient evidence documented at an enquiry held for the purpose in the prescribed manner.

Termination

Section 28B of the Act states that no employee who has worked continuously for an employer for at least six months may leave the company without giving the employer one month’s written notice.

When an employee violates the law, the employer may deduct the unpaid wages for up to one month or for the number of days the notice is less than one month, or he may apply to the prescribed authority designated under Section 28-A for the awarding of appropriate monetary damages against the employee who violated the law.

Inspection

Section 36 of the act provides that considering the general special order by the state government. An employer is required to maintain resistors and records. Such records are required to be displayed on the premises of his establishment or shops.

There are certain forms that are required to be complied with by the shops and establishments registered under the Rajasthan Shops and Commercial Establishment Act of 1958. They are given under

FORM NUMBER PARTICULARS OF THE FORM
Form 1 The prescribed form for a declaration under Section 4 states that all employers must register their shops or establishments with the Ministry of Labour.
Form 2 The prescribed form for facility registration is that all members must register their facility with the Ministry of Labour according to the Rajasthan Shops and Commercial Establishment Act 1958.
Form 4 The prescribed form to notify a change. It demands that all employers must notify The Ministry of Labour of any change that affects the organisation.
Form 5 The prescribed form to request for renewal of the registration certificate. All employers must renew their office registration certificate in accordance with the Rajasthan Shops and Commercial Establishment Act 1958 in this form.
Form 7 The prescribed form for the notice of a close day or any change in it. All the employers must display Form 7 notice of the off day or any change about that on the blackboard.
Form 10 The prescribed form for the physician certificate. In accordance with the Rajasthan Shops and Commercial Establishment Act 1958, all employers are required to obtain a health checkup and physician certificate prior to the recruitment of an individual.
Form 11 The prescribed form for the employment record which every employer is required to maintain.
Form 13 The prescribed format of employed daily time is closer to what every employer is required to maintain.
Form 14 The prescribed format of employee working hours record that every employer is required to record in respect of every employee.
Form 15 The prescribed form for the weekly holiday notification that every employer must retain.

The Rajasthan Shops and Commercial Establishment Act of 1958 provides for the rights and travel ages of the employees working in the shops and establishments situated in the state of Rajasthan. It not only provides for the registration procedure but also provides for the welfare of the employees and employers of the shops and establishments in the state. 

It is a very significant piece of legislation for both the welfare of the places where the work is done and of the workers that are employed in those places to do the work.

What is protective discrimination?

In every society, there is a section that is intentionally or unintentionally neglected, making it the underprivileged section of the society. Protective discrimination is a policy that focuses on the underprivileged section of society through the formulation of policies regarding their special privileges, affirmative programs, etc. It is intended to curb the problem of social backwardness.


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