Paid Holiday to Employees to VOTE on Election Day.

LEGISLATION FRAMEWORK:

1. The Representation of the People Act, 1951:

The above Act is a Central enactment which declares a holiday for all eligible voters working in any business, trade, industrial undertaking or any other establishment on the day of a poll to the House of the People or the Legislative Assembly. The relevant provision is in Section 135B, which is reproduced as under:

“135B. Grant of paid holiday to employees on the day of poll.—

(1) Every person employed in any business, trade, industrial undertaking or any other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State shall, on the day of poll, be granted a holiday.

(2) No deduction or abatement of the wages of any such person shall be made on account of a holiday having been granted in accordance with sub-section (1) and if such person is employed on the basis that he would not ordinarily receive wages for such a day, he shall nonetheless be paid for such day the wages he would have drawn had not a holiday been granted to him on that day.

(3) If an employer contravenes the provisions of sub-section (1) or sub-section (2), then such employer shall be punishable with fine which may extend to five hundred rupees.

(4) This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.”

2. Constitution of India:

Article 246(1) states that Parliament has exclusive powers to Legislate under the Union List, i.e. List 1 of Schedule VII to the Constitution of India, while Article 246(3) states that a State Legislature has exclusive power to legislate under the State List, i.e. List II of Schedule VII.

Both the Parliament and the State Legislatures are given the right to legislate over elections, although the Parliament’s right extends to legislating over the Central and State Legislatures, whereas the State may only legislate over elections to the State Legislature, subject to any central enactments. The relevant Items in the respective Lists are stated below.

List I (Union List), Item 72:

“Elections to Parliament, to the Legislatures of States and to the Offices of President and Vice-President; the Election Commission.”

List II (State List), Item 37:

“Elections to the Legislature of the State subject to the provisions of any law made by Parliament.”

NOTE:

  1. The Representation of the People Act (for short ‘the Act’) lays down a mandatory provision in Section 135B(1) stating that any person who is employed in any trade, business, industrial undertaking or any other establishment and entitled to vote at an election of the House of People or the Legislative Assembly shall be granted a holiday on the day of the poll. The terms “trade”, “business”, “industrial undertaking” and “or any other establishment” have not been specifically defined in the Act, and may be taken in their general sense to mean nearly all kinds of work places where commercial activity, including manufacturing activity, takes place.
  1. Section 135B is mandatory on all employers conducting activities as abovestated. The employer is prevented from deducting any amount from the employee’s wages on account of the holiday given. If the employer is in contravention of the Section, then he is liable to the penalty of a fine which may extend to Rs. 500/-.
  1. Section 135B(4) provides an exception to the rule of granting a holiday to an employee in case his absence may cause danger or substantial loss in respect of the employment in which the particular employee is engaged. This provision may prove to be precarious. Whether or not the employee’s absence may cause danger or substantial loss in respect of the employment in which he is engaged, is a question of fact that will require to be proved in the event of a complaint.
  1. Certain States have specific enactments declaring a holiday on polling days. However, in Maharashtra the Bombay Shops & Establishments Act does not give the State Government or any authority under the act the power to declare a holiday for establishments under the said Shop Act. Thus, such establishments must look to the Representation of People Act, 1951. There also does not appear to be any National and Festival Holidays Act in Maharashtra, unlike in some states like Karnataka and Tamil Nadu, which declares holidays on polling days.
  1. The Election Commission has on certain occasions issued Letters to the Governments of the States and the Union over the question of the grant of a paid holiday on the day of polling. On such occasions, the Letters have been in response to certain doubts that may have been raised as to eligibility of certain persons to such paid holiday. Two important Letters of the Election Commission are enumerated upon below:

1. On April 6, 1999, the Election Commission issued a Letter clarifying:

2. That a paid holiday shall be given under Section 135B(1) of the Act even to those electors, including casual workers, from constituencies other than the one in which the establishment is situated on the day of polling in the constituency of the establishment. (Para 3 of the Letter)

3. In respect of industrial undertakings / establishments working on a shift basis, a paid holiday may be declared only for the shift during which a poll is to be taken, and not for shifts which may commence after the conclusion of the poll. However, there should be sufficient time gap between the close of the poll and commencement of shift duty. (Para 4 of the Letter)

4. On March 30, 2009, the Election Commission issued a Letter that addressed the clarifications given in the Letter dated April 6, 1999 enumerated above. Para 4 of the Letter dated April 6, 1999 was challenged before the Goa Bench of the Bombay High Court by the Goa MRF Employees Union. The Hon’ble High Court struck down the said provision, and thus the holiday to be declared on the day of a poll is not restricted only to the shift during which a poll is to be taken, but to all shifts.

  1. It is evident that if all employees of an industrial establishment are granted holidays, then there will be substantial losses. However, the Bombay High Court has not struck down the provision in Section 135B(4). The provision continues to remain mandatory, subject to the exceptions in the said Subsection (4) which may have to be proved if relied upon.
  1. This issue may be settled by way of discussions with Unions. In many places, the Unions agree to adjust the day of the holiday with the weekly off. In other cases, the Unions have agreed to take half a day’s leave in the first shift and have agreed to keep the plant running in the second and third shift. However, considering that the employees have a right under the Act to be granted a holiday, and the decision of the Bombay High Court abovereferred where a holiday only in the shift during which the polling occurs was struck down, the employer may find it difficult to convince the Union to accept any compromise.
  1. In industries where there are continuous processes, it is necessary to run the plants continuously all year round. In such circumstances, Managements are usually paying an extra day’s wages for working on polling days.
  1. In case of industrial establishments carrying on hazardous processes, and closure of such an establishment is likely to lead to accidents, hazards or some other danger, then the exception in Section 135B(4) can operate to protect the employer. A ‘hazardous process’ as per the Factories Act means any activity or process in relation to an industry specified in the First Schedule to the Factories Act where, unless special care is taken, any raw materials used, intermediate or finished products, bye-products, wastes or effluents would cause material impairment to the health of persons engaged in or connected therewith, or result in pollution to the general environment.
  1. It may be argued that Section 135B does not prohibit an establishment to remain open on a polling day. Since voting is a right, it is up to the elector to exercise it. The employer is only required to grant a paid holiday to an employee who is eligible for voting. The Act does not, however, state that an establishment shall remain closed on a polling day. In the event that an employee does not wish to vote, or wishes to attend to his duties inspite of his option to seek a holiday, it may be said that the employer will not be in contravention of Section 135B if he allows the employee to work on that day. However, there do not appear to be any Court decisions on this matter.
  1. Before the elections the State Governments come out with notifications. For example in 2009 the Government of Maharashtra had also issued a Notification dated September 29, 2009, in which it had declared October 13, 2009 as a Public Holiday for the General Elections. Additionally, the Government of Maharashtra had also issued a Circular dated October 1, 2009 reiterating the provisions of Section 135B of the Act and stating that a contravening employer will be subject to penal action as per the provisions of the Act. In this light, unless an industry can fall within the exception in Section 135B(4), it is advisable that a paid holiday be given on election day. The said Circular of the Government of Maharashtra did not state anything over and above the provisions laid down in Section 135B of the Act. Hence, industries carrying out activities which, if stopped, may be dangerous, or where stoppage may cause substantial loss, are exempted from application of the circular. However, as and by way of abundant caution, some provision should be made by the employer to allow the employees to vote.
  1. Prima facie, it appeared that the Notification as well as the Circular of the Government of Maharashtra could be challenged, and clarity needed to be sought in respect of the exception in Section 135B(4). The Government, vide the Notification, had declared a public holiday on election day, although Section 135B itself does not require closure of an establishment. However, no employer wants to challenge the Notification, the Circular and the said provision, and they usually seek clarifications very shortly prior to the polling days. This is a controversial issue that needs to be dealt with finally so as to remove confusions and doubts, and to protect the interests of both employers and employees. The ambiguity in the exception in Section 135B(4) if not removed can lead to harassment of employers by Unions and Election Officers, and can potentially subject employers to criminal proceedings. It is the very ambiguity which creates scope for an appropriate petition before the Bombay High Court, since criminal action is authorized by Section 135B, and the ambiguity can lead to arbitrariness, which is not permissible in a statute, particularly in penal provisions.
  1. In case any employer keeps his industrial establishment open on election day, and is prosecuted for violation, the prosecution can be effectively dealt with. Further, it is to be noted that the maximum punishment for contravention of Section 135B of the Act is a fine of Rs. 500/-, and therefore on no account can an employer be imprisoned for such a contravention.

CONCLUSION:

  1. From the above it can be concluded that, under Section 135B of the Act, it is mandatory to give a paid holiday on a polling day to an employee who is an eligible elector. As shown above the Circular dated October 1, 2009, provided that such a paid holiday must be granted to every person employed in shops, commercial establishments, residential hotels, restaurants, eating houses, theatres, industrial establishments, and other establishments, who is entitled to vote. However, in case the absence of an employee may cause danger, or may lead to substantial losses in respect of the employment for which he is employed, then the employer is exempted from granting a paid holiday.
  2. As aforementioned, the holiday may not be granted if the absence of the employee may cause danger or substantial losses in respect of the employment in which he is employed. However, the possibility of such danger or substantial loss is a question of fact which may require to be proved.
  3. In case an elector is registered in a one constituency, but is working in an establishment located in another constituency, then the elector is eligible to a paid holiday when polls are being held in the constituency in which the concerned elector is registered.
  4. If the polling is to be conducted at a time which coincides with a particular shift of an establishment, then a paid holiday must be given to all shifts, and not only that shift during which the polls are conducted.
  5. In many cases, Managements negotiate with Unions to continue working on polling days. Sometimes, extra wages are paid, in some cases the weekly holiday is adjusted. However, if the Union insists on a holiday, it is better to give the holiday rather than allow the matter to go before the Election Commissioner.
  6. Recourse can also be taken to the procedure followed for the Central Government employees as mentioned above.