Tag Archive | Delhi Shops and Establishments Act 1954

Soumya Vishwanathan’s Employer Fined Rs 250 – By Mukesh Jhangiani

                                                                                                                              March 26, 2009

Soumya Vishwanathan’s Employer Fined Rs 250

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Four months after a woman journalist was found shot in her car in the dead of night, her employer paid a Re 250 fine for breaking the Capital’s work hour norms.

TV journalist Soumya VishwanathanShot in dead of night (Photo: Mid-day.com)

The quantum of fine for the sort of violation incurred in Soumya Vishwanathan being at work till 3 am, some half an hour from a killer bullet, was set in the 1950s, shortly after India gained freedom.

Section 14 of the Delhi Shops and Establishments Act 1954 outlaws any establishment allowing women to work between 9 pm and 7 am in summer and, 8 pm and 8 am, in winter.

”Any contravention… shall on conviction, be punished with fine which shall not be less than twenty-five rupees and which may extend to two hundred and fifty rupees,” Section 40 of the Act says.

Indian governance– no matter the political label– has let it remain, notwithstanding the fall in Rupee’s buying capacity, the changing values or conditions, the state of security and the level of law and enforcement half a century thence.

”It’s one of the outdated provisions,” V V Giri National Labour Institute researcher Sanjay Upadhyaya acknowledged in an interview with United News of India Special Correspondent Mukesh Jhangiani.

On September 30, 2008, Ms Vishwanathan, 26, left her place of work at 03:02 am, say police, who got word of the incident at 3.41 am.

Greeting the news of the arrest of her alleged killers some six months later her mother, Madhavi Vishwanathan, remarked: ”It’s unfortunate that another murder had to take place.” She was referring to the murder of Jigisha Ghosh, 28, killed last week returning home from work.

The Soumya Vishwanathan murder sparked a debate over a young woman driving home from work unescorted at such hours.

Delhi Chief Minister Sheila Dikshit’s reported remark that ”one should not be adventurous” shocked even admirers of a woman CM. It contorted a serious issue, critics said.

”The girl is being blamed for driving home late after work,” fumed Sudha Sundararaman of All India Democratic Women Association.

She said the Chief Minister should instead be ”finding out how this happened and looking at ways to strengthen the city’s security set-up.”

Angry netizens pointed out that a chief minister responsible for law and order must make the city safe and secure for residents.

One, G Sriniwasan, remarked: If Shiela has her Z security removed and has to work to earn a living possibly she will change her tone.

Chief Minister of Delhi

Delhi Chief Minister Sheila Dikshit (Photo: Wikipedia)

Ms Dikshit acknowledged in a published interview that ”travelling at three in the morning is not a safe thing for anybody to do… even for boys.” She said, ”Companies employing young girls and boys 24 hours for that matter should provide escort for the safety of our girls and boys.”

Section 14 says ”no young person, or woman shall be allowed or required to work whether as an employee or otherwise in any establishment between 9 pm and 7 am during the summer season and between 8 pm and 8 am during the winter season.”

The Delhi government exempts employers who make workplaces ”secure and safe” for employees and provide them ”door to door pick-up and drop facility.”

Two weeks after the murder, New Delhi newspapers published her ‘Appeal’ reminding employers of exemption available ”subject to the safety and security of the women.”

But in a society where jobs are scarce and law enforcement scarcer– barely six per cent conviction rate for even heinous crimes– what happens when an employer does not obtain exemption ?

The city’s Shops and Establishments Chief Inspector filed a complaint naming the employer, Managing Director Aroon Purie, and the establishment, M/s TV Today Network, as accused no. 1 and no. 2.

K R Verma submitted that Ms Vishwanathan, working as producer with ”the aforesaid Management/Employer, met with an accident on her way home after leaving from work at 3.02.54 AM.”

The work attendance sheet showed that late Ms Vishwanathan and some other women employees ”worked during the hours prohibited under the Act,” the complaint said.

It said the management having ”not been granted any exemption” for Section 14, ”the employer committed an offence by violating the provision… and is liable to be punished” under section 40.

It prayed ”that the accused be summoned, tried and… punished according to law.” A lawyer for Purie urged the court to ”dispense with” his client’s personal appearance, saying he was ”falsely implicated” and ”impleaded for malafide reasons.”

Advocate Sushil Dutt Salwan pointed out that his client was ”a Padma Vibhushan Awardee” and ”not involved” in the company’s day to day administrative affairs.

On February 19, before Special Metropolitan Magistrate Javed Aslam at Karkardooma, the accusation was explained to a company executive, Puneet Jain, to which he pleaded guilty voluntarily.

Each accused was fined Rs 250 which was paid.

But if penalty is intended to deter violations then a Re 250 fine in 2009, specially when it is not reported by mass media, amounts to little, experts acknowledge.

The order is not even on the internet notwithstanding Rs 854 crore of Indian taxpayer money the Law and Justice Ministry is spending on computerising courts and judgements or orders.

In a newspaper interview as early as December 2002, Verma’s predecessor, M K Gaur, had warned that call centres faced prosecution unless they complied with law.

Incidents involving women employees returning home from call centres at odd hours show the inadequacy of deterrence at work.

Experts agree there is dire need for clear laws, with strong deterrence in terms of mandatory punishment not just for violations, but for any lapse in enforcement at any level.

The 1954 Act regulating work hours, pay and so on is one of two dozen laws on matters ranging from minimum wage to gratuity the city’s understaffed Labour Department enforces.

While commercial activity has mushroomed, hogging even space meant for homes and street traffic, law or its rule have yet to catch up.

The Department neither knows how many units do business in the National Capital Territory– having stopped counting two decades ago– nor makes inspections provided in law to catch offenders.

Asked by UNI in September 2008– just weeks before the murder– how many shop owners were prosecuted under the Act in the last three years, the Department replied: ”Nil.” But experts indicate more bad news– a trend gradually excluding more and more employees from the protective coverage of labour laws.

Upadhyaya cites the ”reversal” of a theory of notional extension of employers’ premises upheld in Supreme Court Judge S Jafer Imam’s judgement of April 28, 1958.

Recent apex court judgements– September 1996 and November 2006– do not appear to subscribe to the principle, he says, stressing the need for a ”more worker centric” approach by judiciary.

UNI MJ

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India’s National Holidays Work For Employers ! – By Mukesh Jhangiani

                                                                                                                                       September 16, 2008

India’s National Holidays Work For Employers !

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Thousands of Indians in the nation’s Capital spent the Independence Day holiday on job, earning twice the wages and a day off as compensation– at least in law.

English: Rashtrapati Bhavan Illuminated on Rep...

Republic Day celebration (Photo: Wikipedia)

But, four weeks later, authorities have no clue how many get to collect the due wages, and how many, if any, don’t.

”We take action against errant employers under the law,” Delhi’s Labour Commissioner K S Wahi said in a telephone interview, but acknowledged ”certain gaps in the laws which must be covered.”

On the Independence day, the Department’s 30-odd Shop Inspectors went around some 130 establishments in the city checking for violations. The count won’t be in until another few days.

Experts point out that such a small number does not even qualify as much of a sample considering hundreds of thousands of units operating in India’s National Capital Territory.

Employment in shops, hotels, restaurants and eateries, theatres or other public amusement or entertainment establishments is governed under the Delhi Shops and Establishments Act 1954.

Enacted to ”consolidate” laws to regulate work hours, pay, leave, holidays and so on, it is one of two dozen Acts on matters ranging from minimum wage to gratuity the Department enforces.

The Act is enforced through 30 plus Shop Inspectors in nine districts of Delhi who function directly under respective district Deputy or Assistant Labour Commissioner.
Experts say the ”gaps” alluded to may have to do with inadequacies in the law and enforcement which let law-breaking employers get away.

Take the ”exemption” proclaimed by the Lieutenant Governor of Delhi in September 2004 to let shops do business as usual on three days in a year lawmakers have declared National Holidays.

By law, Indians are entitled to take the day off on: January 26, the Republic Day, August 15, the Independence Day, and October 2, Mahatma Gandhi’s birth anniversary.

But thousands of shops and call centres across the NCT keep working through those days– some because they have to, others simply choose to.

What if an employee wishes to celebrate a National Holiday ? What steps are taken to ensure that employees are paid the prescribed wage and compensatory holiday ? How many employers have been prosecuted in the last three years ?

When these and related questions were addressed to Delhi’s Lieutenant Governor Tejendra Khanna, his Principal Secretary R Chandramohan suggested these be put to the Labour Department.

Replying for the Department, K R Verma, Chief Inspector of Shops and Establishments, stated that an employee wishing to celebrate a national holiday must ”seek leave of absence from his employer”– in other words, no longer take it as a matter of right.

The issue is not holidays, it is labour law and enforcement.

How does a department with just 30 labour inspectors keep tabs on so many employers or millions of employees ?

Verma said ”the current thinking regarding securing compliance with laws is based upon the policy that most of the establishments comply with the law.”

The Department has not prosecuted any employer on this count or, indeed, under the entire 1954 Act in the last three years, Chief Inspector Verma told United News of India Special Correspondent Mukesh Jhangiani.

While commercial activity has mushroomed in most of the city’s residential areas, even hogging space meant for homes and street traffic, law or its rule have yet to catch up.

Wahi, for instance, could not say how many units do business in the NCT, as Delhi government stopped registering them almost two decades ago.

”Registration was mandatory under the Act prior to 23.11.1989 since when the same has been kept in abeyance,” a government website acknowledges.

Lawyers say they apply for registration on behalf of client firms only to secure a reply– often after repeated effort– that the process is on hold.

”We typically either do not get a response,” says advocate Diljeet Titus, ”or receive a note from the Chief Inspector stating ‘We acknowledge receipt of your application’.”

He says he applies to ensure ”no allegation of violation of the Act is made against the client in the absence of a registration.”

Section 37 of the Act empowers Inspectors to enter ”any… establishment,” examine the premises and records and take on the spot evidence so as to detect violations.

But a source said inspections have also been put on hold for ”four or five” years owing to short staffing and alleged corruption.

Complaints were made by some businessmen that authority was being abused to demand bribes, the source said.

Instead of cracking down on corrupt officers or businessmen, the city apparently chose to skip the drill provided in law to detect offences.

As to staffing, Verma disclosed that against 72 posts, the Department has barely 30 Shop Inspectors, and against 20 posts, barely nine Inspecting Officers. It doesn’t even have enough stenographers to transcribe orders, he said.

The induction of Delhi and Andaman Nicobar Islands Civil Services officers appears to have contributed complications of its own over professional qualifications, officials say.

So how does the Department enforce law ? According to Commissioner Wahi, the complaint of a labour violation has to come from the worker whose right is violated. ”We are here to take care of it.”

”On getting specific information regarding a violation,” said Verma, the Department ”investigates the complaint and decides the action to be taken in each case on merits.”

But experts say the odds of employees– waiters, salesmen, attendants or helpers– lodging complaints against employers, especially in prevailing market conditions, are low.

Even when a complaint is made, the processes are so set as to give employers ample opportunity to escape punishment.

Does the Commissioner’s office undertake to protect a worker victimised for filing a complaint ? For instance, what is the remedy if the employee is sacked.

Officials point to courts a worker may turn to.

Experts say courts may at best secure an employee’s unpaid wages.

But the costs, the time– years, decades– litigation takes, not to mention the tortuous risks and uncertainties it involves, make it impractical, even prohibitive.

An employee considering adjudication has to think about the next meal, rent or school fee ? What is worse is that the system offers little in terms of justice or deterrence against wrong.

Labour officers say they cannot go beyond the law, which often provides for petty, laughable fines– Rs 25, Rs 250, not revised in half a century.

But it turns out that even penalty law provides is seldom awarded by metropolitan magistrates who hear complaints.

For instance, Section 41 of the Act prescribes up to three months imprisonment for a false entry in office record.

But Labour officers, including N R Ahluwalia, who retired as ALC four years ago, said they could not recall a single instance in which an employer went to jail under the provision.

Experts acknowledge the dire need for clear laws, with strong deterrence in terms of mandatory punishment not just for violations, but for any lapse in enforcement at any level.

UNI MJ