Karnataka is set to go to polls on the 12th of May, 2018. It is a 2nd Saturday and most MNCs and government organizations are closed. It may pose little to no challenge to these entities, however in sectors like manufacturing, critical and essential services, the challenge of allowing a full day off may be a major one. Also, several contractors employing contract labour, like security and housekeeping may find it hard to allow their employees to take a full day off for the purposes of voting. This article discusses the law on the point and seeks to provide practical solutions to employers as to how the challenge may be overcome.
Section 135-B of Representation of People Act, (R.P. Act for short) mandates that every person employed in any business trade, industrial undertaking or any other establishment 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.
The Election Commission of India has issued the following clarifications by its Notification dated 6.4.1999.
- 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 undertakings 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 135 - B and the clarification issued by the Election Commission would mean that the Industrial Establishments/undertakings should take following actions on the day of poll in the constituency in which the said Industrial Establishments/undertakings are situated and if it is not otherwise holiday for the establishment.
- The Industrial Establishments / Undertakings 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 12.5.2018.
- The Industrial Establishments / Undertakings 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 mutualised.
The Hon’ble Madras High Court in Raptakos Brett Employees' Union Vs. Raptakos, Brett and Company Ltd. MANU/TN/3392/2014:
“Furthermore, basing on the aforesaid Circulars of the Election Commission dated 06.04.1999 and 07.04.2004, the Commissioner of Labour, issued letters dated 26.04.2004 and 10.04.2006, directing the establishments in Tamil Nadu to comply with the mandate imposed under Section 135-B of the Act read with the Circulars of the Election Commission of India to declare holiday with wages on the poll day. In spite of the same, the first respondent has chosen not to follow the Circulars as well as the mandatory provisions of the statute. For all the aforesaid reasons, I am of the view that the petitioner is entitled to succeed. Accordingly, the writ petitions are allowed. The first respondent is directed to pay wages to all the workmen of the establishment, who abstained from work by not accepting to work in the re-arranged shift during the poll day. The wages shall be paid within a period of six weeks from the date of receipt of a copy of this order.”
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 (i.e., 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 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 proviso 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. In such cases it is sufficient if the employee concerned is given 2-3 hours' time off to enable him to cast his vote.
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 LLR 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.
A CAVEAT - The ensuing election on 12.05.2018 is a heated one. The Political Parties are likely to make an issue if holiday is not declared on the day of election. This sensitivity may be kept in mind by the Managements while taking a decision on the issue. Section 3A of the Karnataka Industrial Establishment (National and Festival Holidays) Act, 1963 also mandates the grant of holidays on the polling day for house of people is to the State Legislative Assembly.
The State Government may also issue directions under the above Act. The members should ensure that the terms and conditions as stipulated in the said directions are complied with.
- B.C. Prabhakar (BCP)
Chairman, BCP Associates