The Election Commission of India has announced the polling days for the nationwide election of members to the Lok Sabha. Across India, the 7-phase election will be held between 11 Apr and 23 May, 2019. Polling in Karnataka will be held in two stages on 18.04.2019 and 23.04.2019 across all Lok Sabha Constituencies of the State.
The law of our land enables its working citizens to exercise their right to cast their votes. Section 135-B of The Representation of People Act, 1951 states the following:
135B. Grant of paid holiday to employees on the day of poll
- 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.
- 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.
- If an employer contravenes the provisions of sub-section (1) or subsection (2), then such employer shall be punishable with fine which may extend to five hundred rupees.
- 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 above provisions are applicable to all establishments, whether factory or commercial establishment.
Earlier, the Election Commission of India had issued the following clarification by its notification dated 6.4.1999.
“Further, there are industrial undertakings/establishments which are working on shift basis. A doubt has been raised whether paid holiday is to be declared only for the period/shift during which a poll is to be taken and not for other shifts which may commence after the conclusion of the poll. It is clarified that a holiday may be declared only for the shift during which a poll is to be taken. However, it should be ensured that there should be sufficient time gap between the close of poll and commencement of the shift duty.”
The above instructions were further revised by the Election Commission by its letter dated 07.04.2004 after a decision of the High Court of Bombay at Panaji (Goa), wherein the Hon’ble High Court had struck down above para-4 of the notification dated 06.04.1999. Under the guidelines issued on 7.4.2004, the Election Commission has clarified that all the employees should be given paid holiday on the day of polling. Accordingly, the company shall have to declare a holiday. Therefore, it is mandatory to give holiday on the day of polling.
Sub-section (4) of section 135-B (4) of The Representation of People Act, 1951 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 a few employees, and not to all the employees working in the establishment. There may be situations where:
- An employee is engaged in such an operation, if stopped would take a long time to restart the same and thus will be a loss to the organization as well as the employees themselves on account of delay in restarting the operations
- Some employees or the entire shift itself is attending to the requirement of overseas clients or other critical work which shall have to be attended without interruptions.
This proviso should be utilized having regard to the facts and circumstances of each job or employment. The exception cannot be utilized for not declaring the holiday for the entire establishment on the day of polling. 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. The employees who attend duty should be paid one day additional wages in accordance with Section 3A of the Karnataka Industrial Establishment (National & Festival) Holidays Act read with Section 5(2) of the Act.
Section 3A of Karnataka Industrial Establishment (National and Festival Holidays) Act, 1963 also mandates the grant of holidays on polling day for house of people or to the State Legislative Assembly. The said provision should be read along with the clarification as given above.
In respect those employees whose working hours commences after the end of polling hours, they may be asked to attend such shifts. However, they may be paid one day additional wages in accordance with Section 3A of the Karnataka Industrial Establishment (National & Festival) Holidays Act read with Section 5(2) of the Act.
Daily wage/casual workers are also entitled for a holiday and wages on poll day as provided in Section 135B of R.P Act 1951.
Holiday on polling day is mandatory and not compensatory. The Management shall have to declare holiday with wages on the date of election. If the establishments want to work on any other day, they can do so but without calling that as a compensatory working day.
The above guidelines may be kept in view while declaring holiday on the Polling Day.