The note is made in the context of the Maharashtra Legislative Assembly Elections, 2019 which is to be held on 21/10/2019. The note is to clarify whether there is an obligation on employers to declare a holiday in there establishments on the day of elections i.e. 21/10/2019. The note has been prepared for the limited purpose of answering the General Queries with respect to declaration of Holiday on Election Day. The Circular issued by the Government of Maharashtra dated 25/09/2019 bearing GR No. Election 2019/73/Kamgar-9 on the subject “Holiday on the date of election or 2 hours of absence” is being annexed for reference.
Q1.Whether it is compulsory to give an entire day off to workers on the day of election?
Yes
As per Section 135B of the Representation of the People’s Act, every person employed in any business, trade, industrial undertaking or any other establishment is entitled to vote at an election to the house of the people or the Legislative Assembly of the State and no wages should be deducted of any such person for granting this holiday. If any employer contravenes the provisions given in this Section, then such employer shall be punishable with fine which may extend to Rs. 500/- therefore this question can be answered in affirmative and as per Section 135B of the Act workers should be given an entire day off on the day of election.
Q2. Do I have to close down the factory or establishment/shop on the day of the election?
No
It is not necessary that the factory or the establishment/shop should be closed on the day of the election. The work can be continued with those employees who are not registered as voters in the Constituency where the elections are taking place, therefore the factory or establishment/shop can run with those employees who are registered as voters with different Constituencies.
Q3. Do I have to give paid holiday to all my employees on the day of election?
No
All the employees of the establishment or factory or shop who are registered as voters in the Constituency where the establishment/factory is situated shall be granted a paid holiday. Other can continue to work
Q5. I have employees who are from different States and the date of election in their respective State is different from the date of which election is scheduled for the Constituency where establishment/factory is situated, when should I give them holiday?
They should be granted holiday on the day on which election is going to be held in Constituency in which they have been registered as voters.
Q6. Can I ask my employees to give their votes in morning and then come to factory/establishment and join duty?
No
As per Section 135B of the Act, employee should be granted a paid holiday and this does not include a half day. Therefore the employer cannot ask any employee to give their votes and then resume the duty in any factory or establishment or shop.
Q7. Can I give half day off to my employees on the day of election?
No
It is mandatory that, on the day of the poll the employee of any factory or establishment or shop should be granted a full day paid holiday and they should not be asked by the employer to work for half of the day.
Q8. If our process is continuous and cannot be stopped for a day then, what should I do for the day of election?
In industries where there are continuous process employees who are very essential for the process can work by giving them 2/3 hours of permitted absence so that they can exercise their right to vote and also should be paid an extra day wages for working on polling day. As per the Government Resolution passed by the Govt. of Maharashtra bearing GR No. Election 2019/73/Kamgar-9 dated 25.09.2019 prior to granting 2/3 hours of permitted absence to workers to cast their vote in respect of continuous/emergency services, it would be essential for the employer to take prior permission of the District Collector and the District Election Officer.
Q9. What happens if the day of election falls on the day of weekly off then do I have to give additional day off in future to the employees or not?
No
If, the election falls on day of weekly off then, there is no requirement to give additional off in future to employees in lieu of this weekly off.
NOTE: 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. As stated earlier, prior permission of District Collector & District Election Officer shall be mandatory.
CONCLUSION:
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. In the event that an employee does not wish to vote, or wishes to attend to his duties in spite 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.