Is It Mandatory for Companies to Give Paid Holidays on Election Days in West Bengal?

Hello,

I am working for an IT-enabled services company operating in Kolkata. I am eager to know, is it mandatory to declare election days as paid holidays? As per the official site of the West Bengal government:

But it's not clear whether it is mandatory to declare a public holiday for companies like us. It is, however, understandable that every employee needs to cast their votes. But is it necessary to declare that day as a paid holiday. Please shed some light on this regard.

Regards, Asish

Hi Asish,

Casting the vote is the fundamental right of every citizen as per the Indian Constitution. You have to follow the State declaration; only those industries can be exempt where national interest is concerned or in case of emergency duties, such as hospitals, mining industries, and others.

You can plan the election date in a way that accommodates every employee who needs to cast their votes and then come to the office. Voting might start at 7 AM or 8 AM, so you can plan your day accordingly. However, it is important to have a proper discussion with your staff and obtain their consent before implementing any changes.

The employer is bound to give a holiday with wages on the day of polling for either the State Assembly or the Parliament. This is a statutory requirement under the Representation of People Act.

As far as the grant of paid holiday to employees on the day of the poll is concerned, Section 135B of the Representation of the People Act, 1951 states the following:

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 the 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 subsection (1). If such a person is employed on the basis that he would not ordinarily receive wages for such a day, he shall nonetheless be paid for such a day the wages he would have drawn had a holiday not been granted to him on that day.

If an employer contravenes the provisions of subsection (1) or subsection (2), then such employer shall be punishable with a fine that 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.

Regards,

Kamal

You should seriously read the local papers. Remove spaces from the URL below: bit.ly/hUtM8C. Also attached is the image, which can be read online at epaper.telegraphindia.com. It was published in all local dailies on 15th April 2011.

Under Section 135B of the Representation of People Act, 1951, it is obligatory for the employers of any business, trade, industrial undertaking, or any other establishment to grant a paid holiday on the day of the poll to their employees. Please refer to the attached image for more information or read The Telegraph itself.

Hope I could have helped you.

Election Day as a Paid Holiday

Election Day is a holiday with wages. I am enclosing a circular issued for TN Industries and Establishments regarding the election.

Regards,
S. Sethupathy, Erode

Thank you all for the inputs. I got the answer to my initial query regarding 'paid' holidays.

My next query is: Is it mandatory for IT and ITES organizations like us (we cater to US customers) to declare the election days as full-day holidays? I was checking the PR of the WB Govt.:

Please note the word used is 'requested.' I have gone through "THE REPRESENTATION OF THE PEOPLE ACT, 1951" where it states:

Here, we can see they have stated "be granted a holiday."

I can't understand why they are not using the word obligatory everywhere to avoid confusions. Thank you.

Compliance with Section 135B of the Representation of People Act

IT and ITES companies are not exempt from the provisions of Section 135B of the Representation of People Act. Employers of IT and ITES companies must comply with the legal provisions.

Regards

Hello Everyone,

If Election Day should be declared as a holiday, is the employee required to show any proof that they, in fact, participated in the voting process? Or is it a blanket rule that whether or not the employee/voter exercised their voting right, they can avail the paid holiday?

Thanks! Pradeep

Dear Mr. Asis,

Section 135B of the Representation of the People Act, 1951 has a clause regarding its applicability.

This clause is mentioned in subsection 4, which clearly states that section 135B shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged. In the case of ITES organizations catering to US customers or manufacturing organizations where the manufacturing process is continuous and cannot be stopped (stopping the process will cause substantial loss), the employer is not bound to give a full day holiday; even a break of 2-3 hours to cast the vote will serve the purpose.

For organizations working in shifts, a holiday is to be declared only for the shift during which a poll is to be taken and not for 24 hours of the day of polling. The employer should only ensure that its employees are not denied their fundamental right to cast a vote due to their official duty.

Employers can have a mutual arrangement with the employees where employees are given different timings to cast their votes and then join their duty. During their absence, their work will be done by another employee. This practice has been adopted in a number of organizations with prior written information to the District Election Officer.

Regards,

Kamal Prasoon Sinha.

Dear Sir,

Under the Representation of People's Act, the term "cause substantial loss" is not defined. The Act also does not lay down any objective criteria for determining when "substantial loss" could be said to be caused. Please enlighten me as to what are the circumstances under which the employer in the IT and ITES sector could come to the conclusion that the absence of the elector would cause "substantial loss". If, in the absence of a legal definition of the term "substantial loss", the employer is guided by his subjective satisfaction for coming to the conclusion that "substantial loss" would be caused to him by the absence of an elector, then his decision that the absence of the elector would cause "substantial loss" is subject to judicial scrutiny. As far as my knowledge goes, there is no case in which the High Courts or the Supreme Court has pointed out the circumstances under which "substantial loss" could be caused due to the absence of the elector. Anybody having information on this point, please clarify.

Dear Sir, (V. Harikrishnan),

Thanks for your valuable input.

With due respect, I would like to inform you that the motive behind amending the Representation of the People Act, 1951 in 1996 by adding a new section (135B - "Grant of paid holiday to employees on the day of poll") was to ensure that no eligible citizen of India is denied the right given by the constitution, i.e., the Right to Vote.

The motive of the parliament was not to ensure that all eligible citizens should get a full day paid holiday and enjoy the entire day with family and friends. It was because of the very clear motive/purpose of the 1996 amendment that the matter has not reached the court until now. Nobody has approached the court to define the terminologies used in the act.

There was some confusion regarding a full day paid holiday with organizations operating in shifts, and then the Election Commission of India issued a clarification in 1999 that for organizations working in shifts, a holiday is to be declared only for the shift during which a poll is to be taken and not for 24 hours on the day of polling.

The above clarification from the Election Commission is sufficient to understand the motive of the highest body responsible for conducting elections in the country.

Regarding the term 'substantial loss,' it may vary from organization to organization. For one establishment, even 10,000/- may be a substantial loss, whereas for another establishment, even 1,00,0000/- may not be considered substantial.

It is true that if the matter reaches court, it will invite judicial scrutiny. However, let's not complicate matters. We should respect the motive and sole purpose of the Act passed by the Parliament and clarified by the Election Commission itself - that no eligible citizen of India should be denied the right to vote due to their professional obligations.

This is the responsibility of all of us managing organizations at senior or junior levels. Let's not resort to knocking on the court's door for every step we need to take to run an organization.

Regards,

Kamal Prasoon Sinha

EC Notification Upload

I am uploading the EC notification for your reference.

Regards,
Kamal Prasoon

Dear Mr. Sinha,

Thank you for uploading the Election Commission Notification of 1999. In Chennai, during the General Elections for the Tamil Nadu Assembly in 2006, a software company did not declare a holiday for its employees, whether they were on duty during polling hours or working in shifts. A complaint, made by a person unrelated to the company, alleged that the company violated the RP Act, leading to an inquiry. Eventually, the company had to reconcile with the employees who were asked to work on polling day. I thought this information would be of interest to you.

With regards,

Dear Mr. Harikrishnan,

Thank you for sharing the information. The question here is whether those employees had cast their vote or not. If they were unable to cast their vote due to their official work, then the software company has committed an offence under the RP Act.

Furthermore, when an official complaint with the district election official has been lodged, the matter is between the offender (company) and the election officials. I am having trouble understanding the role those employees played in the settlement of the issue.

I have also encountered such a situation where, as a representative of the company, I protested against the order of a deputed election officer with the Chief Electoral Officer of the state, and the matter was resolved without any problem. My argument was that the employer had not committed any offence under the RP Act as the working employees had cast their votes, and the presence of those employees in the factory was necessary (technically) on the polling day.

Regards,
Kamal Prasoon Sinha

Dear Mr. Sinha,

Thank you for your kind reply post.

In the case referred to by me, I am aware of the manner in which the issue was settled. However, I cannot divulge the information in a public forum like this.

Section 135B of the RP Act talks about a holiday on the day of polling. How can the statutory duty of the employer to declare a holiday on the day of the poll be legally avoided? If possible, please enlighten me on this issue. If you rely on the Election Commission notification of 1999 to avoid the liability under Section 135B, my request for clarification is whether the notification issued by the Election Commission overrules the provisions of a law enacted by Parliament.

If it is possible for you to share the information in a public forum, please inform how in the case referred by you, the election official closed the complaint.

Dear Mr. Harikrishnan,

I agree that the law enacted by Parliament will prevail over the notification issued by the Election Commission. But the said notification of 1999 has a lot of meaning and value as it's the EC which conducts the elections, and during elections, the EC has a final say on any matter related to the conduct of elections.

The Election Commission notification was issued to the officials (the Chief Secretaries and the Chief Electoral Officers of the States and UTs) directly responsible (in charge) for the conduct of elections to remove certain confusions prevailing among them. This notification is certainly not a tool to avoid liability under Section 135B of the RP Act.

Let's not forget that Section 135B of the RP Act has a clause stating that 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.

I am not trying to manipulate the clauses/notification as per my convenience but to understand and follow the Act in its true sense.

Section 135B of the RP Act was passed to ensure that every citizen must exercise their right to vote. It was not passed to harass organizations for no genuine reasons.

Keeping the whole establishment open on the polling day and requesting a few employees to work for a few hours on the polling day (as their absence may cause substantial loss to the organization), that too after making sure that those employees have cast their votes, is a totally different conduct of the employer. I am talking about the 2nd conduct of the employer.

It's certainly not possible for me to give details of my case in a public forum.

Regards,

Kamal Prasoon Sinha

I want to share some information here. I am from Pune, Maharashtra. I have gone through all the posts in the thread above without going into the technicalities of the P R Act and notification. I would like to share the following:

I am not sure whether declaring a holiday for the entire day is necessary. In the case of a well-known manufacturing company and many other companies in the industrial belt of Pune, the voting day was not declared a holiday during many past elections.

In spite of a strong Union presence in these manufacturing companies, Election Day was not a holiday. On some occasions, shift timings were adjusted so that employees were in a position to cast their votes without any problem. Timings of only the General Shift were adjusted. 1st and 2nd shift employees were told to exercise their franchise after and before their duty timings respectively.

On one particular occasion, employees in the general shift were allowed to leave two hours early, and regular company transport was made available accordingly.

The above arrangements were made public in advance by issuing an official circular to all employees. No action was taken against any company by the election commission or government.

Incidentally, I am wondering what happens to the voting rights of government employees on election duty, Policemen, Railway employees, and so on. They cannot skip their duty.

Dear Mr. Vkokamthankar,

You are absolutely right. That is what I am trying to say. I am also from Pune associated with a manufacturing company. If the manufacturing/production process is continuous and cannot be stopped as it will cause a huge loss to the company, the company is not bound to shut down its factory on the polling day.

No big manufacturing company declares a full-day holiday on the polling day... Yes, there are adjustments so that employees can cast their votes.

I have seen there is confusion even among officials on election duty regarding the implementation of Section 135B of the RP Act. To remove this doubt, the Election Commission itself issued a clarification.

I have seen this personally when a junior-level election official filed an official complaint against my company and an inquiry was instituted by the district election officer. We submitted all relevant documents and evidence showing that the presence of those employees was a must and also that they have cast their votes. We also approached the Chief Electoral Officer to end the dispute at the earliest.

After going through our documents and their polling records, the district election officer gave us a clean chit as no offense was committed under the RP Act.

Regards,

Kamal Prasoon Sinha

Dear Mr. Sinha,

In continuous process industries, as you stated, there are adjustments regarding the declaration of a holiday on the polling day. Probably there was some understanding between the management and the Unions regarding this. Adjustments have to be made only if the law is applicable. If the law is not applicable, there is no need for adjustments, and the management/employer would have straight away asked the workmen to come to work on the polling day.

Adjustments regarding holidays are made with mutual understanding between management and employees, with prior written information provided to the District Election Office. All these arrangements are carried out in accordance with the provisions of the RP Act.

Regards,
Kamal

Dear Mr. Sinha,

In your reply post, you have stated that all the arrangements regarding adjustments are done as per the provisions of the RP Act. Please enlighten me about the provisions of the RP Act that enable mutual adjustments regarding holidays on a polling day. Your information will be of help and guidance to me when similar situations arise in the future. I request you to provide me with the above-referred provisions of the RP Act so that I will be able to convince employers and workmen based on the provisions of the law referred to by you. Thank you.

With regards,

Dear Mr. V. Harikrishnan,

The provision I'm talking about is sub-section 4 of Section 135B of the RP Act, which provides a way out for industries with continuous production processes. Mutual arrangement means that employees are allowed to exercise their right to vote while ensuring that the production process continues uninterrupted.

Regards,
Kamal

Public Holiday Notification for Local Body Election

Could anyone provide a public holiday notification for the Local Body Election on 17th October '11? This abstract states that on 13th April '11, there will be a public holiday for the general election of Tamil Nadu. Is it possible to receive a similar notification for the 17th October election?

Thank you.

Regards

Is it a holiday for private companies for the upcoming local body elections (17.10.11) because the government announced a holiday for government employees?

Regards,
Armathan

The holidays on the day of election to the Assembly and Parliamentary constituencies are declared based on the provisions of Section 135B of the Representation of Peoples Act. However, the elections to the local bodies, whether it is a Corporation, Municipality, or a Panchayat (Panchayats of all types included), are held under different laws in each case. Originally, in these laws regulating the elections to the local bodies, there was no provision similar to Section 135B of the Representation of Peoples Act. But the Government of Tamil Nadu had amended these laws which regulate the conduct of elections to local bodies on the lines of the provisions of Section 135B of the Representation of Peoples Act, making it mandatory for the employers in Tamil Nadu to grant leave to their employees on the date of elections to the local bodies. I am given to understand that the Government of Tamil Nadu has issued a communication bringing to the notice of the employers, this provision. You may contact the Joint Commissioner of Labour or the Deputy Commissioner of Labour of your area to get the details. If you are in Chennai, the office of the Commissioner of Labour will give you the necessary information.

Regards,

Please find the copy from the labor commissioner.

Regards,
John Paul