The Central and State Election Commission from time to time, as and when elections are declared for the parliament, assembly, municipality or any local body, direct all establishments to declare a holiday to enable the employees to exercise their right of voting.
Section 135 B of The Representation of the People’s Act 1951 provides for public holiday on the day of poll, the relevant section 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.”
The said section lays down a mandatory provision, that any person who is employed in any trade, business, industrial undertaking or any other establishment and entitled to vote at an election at the House of People or Legislative Assembly shall be granted a holiday on the day of the Poll. The terms, Trade, Business, Industrial Undertaking and any other establishment have not been specifically defined in the Act, therefore the definitions may have to be taken in their general sense to mean nearly all kinds of workplaces where commercial manufacturing activity takes place.
Therefore all the establishments and factories will be covered by the previsions in Section 135B (1). Section 135B is mandatory for all employees conducting activities as stated above. The said section also provides for prevention from deducting any amount from the employee’s wages on account of holiday given. Violation of this provision can make the employer liable for a penalty of fine which may extend to Rs 500/-.
However, at many places, particularly in the manufacturing sectors and where the process is continuous and uninterrupted manufacturing activity is carried out, giving effect to the notification becomes impossible. In power generating companies, petro-chemical complexes, unites carrying out hazardous processes, chemical factories, call centres, IT Parks, super markets, malls, airports, it is not possible to declare a holiday. Therefore, in the Act itself Section 135b (4) provides that the 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. However, Election Commission has not clarified how to decide this class of elector. Absence of all employees from the premises causes substantial losses to the establishment. However, in the absence of clarity, the provision is misused by workers all over.
The workers particularly in continuous process threaten to remain absent and seek more benefits like treating working on an election day as working on a paid holiday and therefore seeking regular wages plus double the wages. The workers also expect time off to enable them to exercise the right of voting.
When the law, particularly sub section (4) provides for non applicability to a certain class of employees, the Election Commission’s insistence on blanket holiday is difficult to understand. There cannot be two opinions on the principal that every voter should exercise the right of voting. No sane employer will ever oppose the idea of opposing or obstructing the right of voting. The employers can be directed to provide appropriate time for enabling workers working in the day shift. However, giving holiday on the day of voting is applicable to all shifts which is strange.
Since it is not possible for a large number of manufacturing/commercial establishments to close activities on a particular day, arrangements are made by the establishments by paying double the wages and giving time to exercise the right of voting. Whether this arrangement is legal or not is not decided by any court of law. Probably the employers rely on Section 135B (4) and justify the arrangements. The Trade Unions and government authorities turn a blind eye as long as there is no complaint.
Certainly, industry is waiting for a clarification or pronouncement or a judgment by the Courts. This will put an end to a subject which is controversial and has been affecting Industrial Relations all over.
Some States under State Legislation, particularly under National/Festival Authorities Act or Shops & Establishments Act declare holidays under that particular Act.
Further, the Election Commission has issued two letters which are enumerated upon below-
(a) On April 6, 1999, the Election Commission issued a clarifying letter :
i. 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) Therefore, in case an elector is registered in a one constituency, but is working in an establishment in another constituency, then the elector is eligible to a paid holiday when polls are being held in the constituency in which the establishment is situated.
ii. 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)
(b) 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.