Is it possible under the labour laws in India to discontinue maintaining physical attendance and leave registers, maintaining them online instead?

Provisions under Bombay Shops & Establishments Act (in short ‘Shop Act’), 1948 & Maharashtra Shops & Establishments Rules, 1961 (in short ‘Shop Rules’)

For organisations that fall within the definition of ‘Commercial establishment’ under the provisions of The Shops and Establishments Act of that particular State (for Eg – u/s 2(4) of the Bombay Shops & Establishments Act, 1948), each office is deemed to be a different unit and has to seek registration separately under the Shop Act.

As per Bombay Shops & Establishments Act, 1948, Section 62 mandates maintenance of certain registers at the location of the establishment. Rule 20 (1), (4) and (5) provide for maintenance of register of employment in Form H/J, register of leave in Form M, Leave Book in Form N respectively.

As per the provisions of Rule 20(11) of the Shop Rules, permission may be granted to an employer for maintaining attendance and leave records pertaining to the employee in online format, provided the online format contains all the relevant information of Form H/J, M & N. Application may be made in this regard to the Government of Maharashtra.

Under Section 4 of the Shop Act an establishment may seek exemption from the application of the any/all provisions of the Shop Act and/or Shop Rules. An application can be made in this regard to the State Government. An application seeking exemption from applicability of Section 62 of Shop Act r/w Rule 20 (1),(4) & (5) can be made permitting maintenance of attendance and leave records of company employees in online format, to the Department of Labour, Government of Maharashtra. The application can be made in respect of all branches and head office situated in Maharashtra. However, it is essential to ensure that all the elements as mentioned in Form H/J, M & N appended to Shop Rules are featured into the online format.

Note: Reference can be made to Sr. No. 316 of the Schedule II appended to the Bombay Shops and Establishments Act, 1948 wherein vide a Government Notification No. G.N., I. & L.D. No. BSE 1484/CR-208/Lab-9 dated 27.11.1984 around 62 Scheduled banks were exempted from the application of Section 62 of the Shop Act along with other provisions subject to the conditions that;

The Registers/Records should be made available to the inspectors at the time of their visits to the Banks for inspection.

Note: In exercise of the powers conferred by section 67 of the Shop Act r/w Sections 6 and 90 of the Information Technology Act, 2000 the Govt. of Maharashtra has framed Maharashtra Shops and Establishments (Amendment) Rules, 2012, which have been brought into effect from 03.01.2012 vide which Rule 22 & 23 have been added to the Shop Rules, which reads as under;

Rule 22

Every employer shall submit statements, application for registration, renewal of registration certificate, application for exemption, notices or any other application or documents and fees as prescribed in these rules, electronically.

Rule 23

(1) The employer shall pay the electronic transaction charges for availing e-services for submitting statements, applications for registration, renewal of registration certificate, application for exemption, notices or any other application or documents and for paying fees prescribed in these rules, electronically, as provided in sub-rule (2).

(2) The electronic transaction charges for the purposes of sub-rule (1) shall be as follows, namely:-

Rule 3 of the Maharashtra Shops and Establishments Rules, 1961 provides for appointment of prescribed authority. Appropriate authority in respect of Rule 23 was to be appointed and mechanism is respect of e-filing was to be put in place within 6 months from 03.01.2012, through a notification in the Official Gazette. However, no such notification has been passed yet to that effect. Hence, application for exemption may have to be made in the physical mode.

Provisions under Minimum Wages Act, 1948 and Maharashtra Minimum Wages Rules, 1963

If a company has been maintaining a muster roll-cum-wage register under the sub-rule (1) of rule 27 of the Maharashtra Minimum Wages Rules, 1963 for all its employees, as per Rule 20(6-A) of the Shop Rules, there is no requirement to maintain Form H/J, M & N.

Permission to maintain muster roll-cum-wage register, wage slip, cards or any other register under the Minimum Wages Act, 1948 r/w Maharashtra Minimum Wages Rules, 1969 in online format can be obtained from the Commissioner of Labour or such other appointed officials under Rule 31 of the Maharashtra Minimum Wages Rules, 1969. While making such an application it is essential to ensure that the all contents of online format correspond to contents of the muster-roll-cum-wage-register/wage slip etc. as provided under relevant Forms. Similar permissions have been provided to various companies off late in Maharashtra.

With respect to factories, the permission of either the Labour Commissioner or the Factory Inspector has to be sought via a written application for maintaining registers in soft format.

Note: The aforesaid note pertains to provisions applicable in the State of Maharashtra. Similar provisions have been made in other States in India as well. A company may refer to its particular State’s legislations in that respect.