Section 135-B of Representation of People Act, (R.P. Act for short) mandates that every person employed in any business trade, industrial and taking or any other establishments and entitled to vote at election to the house of the people or legislative assembly of the State shall on the day of polling be granted a holiday. There shall be no deduction or abatement of wages of any such persons on account of holiday granted for polling day. Contravention of these statutory provisions shall be punishable with fine which may be extended to Rs.500/-. This statutory provision will not apply to any elector whose absence may cause any danger or substantial loss in respect of the employment in which he is engaged.
Election Commission’s letter No. 78/84, dt. 9th November, 1984 to Chief Secretaries/Chief Electoral Officers and Ministry of Law and Justice.
General Election to Lok Sabha or Legislative Assembly- Local Holiday(s) on the polling day(s) by the State Governments and Central Government- Request for declaring holiday under Negotiable Instruments Act, 1881.
Subject : General Election to Lok Sabha or Legislative Assembly Local Holiday (S) on the polling day (S) by the State Government and Central Government Request for declaring holiday under Negotiable Instruments Act, 1881.
I am directed to state that in connection with elections, it has been the practice of both the Central and State Governments to declare the polling day or days as holidays under the Negotiable Instruments Act, 1881. Such a course is necessary to make it convenient for every voter to exercise his right of franchise in the election. The Ministry of Home Affairs (Department of Personnel and Administrative Reforms), Government of India, has also been taking similar action in respect of the offices under the administrative control of the Government of India located in the States.
2. In cases, the day of the poll does not fall on a Sunday or a public holiday, already declared as such under the Negotiable Instruments Act, 1881, the working classes may not get sufficient opportunity to exercise their franchise. In such cases, it is requested that the State Governments should declare the day of the poll as a public holiday under the Negotiable Instruments Act, 1881.
As regards Commercial and Industrial establishments and shops to which the public holidays under the Negotiable Instruments Act do not apply, it is suggested that the State Governments should direct their Labour Commissioners to issue instructions to Commercial and Industrial establishments in the private sector to declare a paid holiday for their workers on the day or days of the poll.
3. The Municipal Corporations, Municipal Committees and other local bodies may also be asked to take action likewise.
4. It may also be considered whether under the Shops And Commercial Establishments Act, the day or days of the poll in any constituency may be declared as a closed holiday for all shops and commercial establishments in the constituency instead of the usual day/days observed by them as closed holidays during the week.
5. Again under section 52 of the Factories Act, 1948, factories may be asked to declare the weekly holiday on the day of the poll in the constituency in which establishments are situated instead of the first day of the week as provided in the section.
6. There may be appreciable number of electors ordinarily resident in one area but having the place of work in another area. For example, persons may be commuting daily long distance to reach places of their occupation or work in cities like Delhi, Bombay, Calcutta and Madras and the date of poll may be different in respect of their place of residence and the place of their work. In such cases, such voters should be given special leave or maximum facilities to exercise their right to vote.
The Commission desires that action on the above lines may be taken and a copy of each of the orders issued by the State Government may be endorsed to it for its information and record.
The Election Commission by its Notification dated 6th April, 1999 had issued the following :
- In case of those electors including casual workers working outside the constituency concerned would be entitled to the benefit of holiday extended under Section 135-B (1) of RP Act, 1951.
- In case of those Industrial undertaking Establishment which are working on shift basis, a holiday may be declared only for the shift working which a poll is to be taken. It should be ensured that there should be sufficient gap between the close of poll and commencement of shift duty.
- Daily wage and casual workers are also entitled for a holiday and wages on poll day as provided in Section 135 B of RP Act, 1951.
- The combined reading of the provisions of Section 135B and the clarification issued by the Election Commission would mean that the Industrial Establishments/undertaking should take following actions on the day of poll in the constituency in which the said Industrial Establishments/undertaking is situated and if it is not otherwise holiday for the establishment.
- The Industrial Establishments/ Undertaking which are working only one shift should declare a paid holiday to all category of employees including casual or temporary employees on the day of polling i.e., on 17.4.2014.
- The Industrial Establishments / Undertaking which work on more than one shift basis should declare a paid holiday for the shift during which a poll is to be taken and there should be sufficient time gap between the close of the poll and the commencement of the next succeeding shift duty. Wages shall be payable for the holiday so declared to all category of employees including casual and temporary employees.
- In cases where those electors including casual workers working outside the constituency concerned should also be given the benefit of paid holiday irrespective of the fact that whether they are casual or temporary employees. The Establishment is entitled to insist on necessary proof in order to ensure that the statutory benefit is not misutilised.
- Certain industries are declared as Public Utility Service (or essential service) by Notification of appropriate Government in accordance with Section 2 (n) read with First Schedule of Industrial Disputes Act, 1947. Such notification is only for the purpose of Section 22 of Industrial Disputes Act (ie., for prohibition of strike and lock out) and the said notification is not relevant for the purpose of the Section 135 – B of RP Act, 1952.
- Section 135-B (4) of RP Act clearly stipulates 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. This exception is applicable to an individual employee or few number of employees and not to all the Employees working in the Establishment. There may be situation where an employee is employed in such operation if it is stopped, it would take long time to restart the same and thus there will be a loss to the Organization as well as the Employees themselves on account of delay in restarting the operations. This provision should be utilized having regard to the facts and circumstances of each job or employment and the exception cannot be utilized for not declaring the holiday for the entire establishment during the poll timings. Wherever this provision is applicable, the employees who were on duty may be given time off which is reasonable to cast their vote and return to duty or wherever feasible, they may be allowed to leave the establishment before the close of shift to enable them to cast their vote.
PAID HOLIDAY ON POLLING DAY NOT MANDATORY IN ESTABLISHMENT WORKING IN SHIFTS
The Hon’ble High Court of Kerala in the case of Binani Zinc Employees’ Union,Binanipuram PO and others Vs. the Labour Commissioner, Trivandrum and others – 1999 Labour Law Reporter 1156 has held that declaration of holiday on Polling Day for the Industries having shift working will not be mandatory. The relevant observation of the Hon’ble High Court is as under:-
“While deciding on the applicability of Sec.135-B of the Representation of the People Act, 1951, regarding granting of paid holiday to employees on the day of polling, it is held that in view of the provisions of subsection (4) of Section 135-B that granting of paid holiday shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged and further in view of sufficient arrangements made by the Company to enable the employees of the Company to that the employees were denied the right to vote. It was further held that in the light of the State Government Order, it cannot be said that the Labour Commissioner is bound to give direction to all the establishments mentioned in Para-2 of the Government Order to declare 11.9.1999 as a paid holiday for the employees. The arrangements made by the company to allow the employees in the day shift / general shift to leave at 1.00 p.m. from their duty for exercising their franchise and calling the evening shift employees for duty at 1.00 p.m. instead of 4.00 p.m. and allowing them overtime allowance for three hours and further permission granted to employees having their polling booths in far away places either to be away from work without entailing salary cut provided they produce proof of their having actually exercised their franchise was considered by Hon’ble Court and found justified.”
The above guidelines may be kept in view while declaring holiday on the Polling Day.