Election holiday
V. VASUDEVAN
(Querist) 14 October 2014
This query is : Resolved
In view of the specific circular by the Labour Department mandating paid holiday for employees (other than exempted establishment/industry), can any establishment, within the Airport ask employees to work. While Airport is exempted, will a commercial establishment, say a cosmetics sales counter operate with
an employee without providing him leave
Anirudh
(Expert) 15 October 2014
YES, the establishment can do so.
V. VASUDEVAN
(Querist) 15 October 2014
Experts are not expected to reply this way. Either they have the knowledge or dont have. My query explains what is expected. This is not an academic query and even if it is so the forum members should enlighten the academist !
Devajyoti Barman
(Expert) 15 October 2014
This is unfit query as well.
Post this in Forum, not here.
V. VASUDEVAN
(Querist) 15 October 2014
Dear learned experts - This is a Lawyers Forum and I thought the experts of law would be earnest enough to enlighten not escape from a very seriou pointed query. This query is in the midst of the mind of every employer and and employee and I have no option with the rejections posted that the experts are not approchable!
P. Venu
(Expert) 15 October 2014
Has the labour department any legal mandate to issue such a circular? Will not be sufficient if the employer allows the employee to report late for duty or leave early so that the latter can exercise his franchise?
V. VASUDEVAN
(Querist) 15 October 2014
Thanks for the query. The Labour Department has issued a notification, directing all the employers to provide a day's paid leave to all employees and have exempted only certain Industries who have continuous process, etc. Only in such cases, the provision of allowing employees two hours or so to caste their vote is given. It is in Marathi and I am appending a rough english version for a reading.
Holiday for the workers working in Shops, Commercial establishment, Residential Hotel’s, Restaurant, Eating House, Theaters, Industrial Establishment, other establishment, Similarly IT Companies, Shopping Centers, Malls, Retailers etc establishment for participate in vote on election day of Vidhansabha General Election 2014.
Government of Maharashtra
Industries, Energy & Labour Department,
Mantralaya, Mumbai – 400 032.
Government Nonfiction No.FDE-2014/ C.NO.55/Lab-9
Dated 10th October 2014,
Press note issued by Election commission of India No.ECI/PN/43/2014 dated 12th September 2014
Government Notification:
Election Commission of India has decided to conduct General election in the state of Maharashtra in 288 Vidhansabha constituency on 15th October 2014.
2) In the 288 Vidhansabha constituency area of Maharashtra State, Voters of this Region to able to exercise their right to cast their vote and to get best opportunity, instruction is given to declare holiday to voters by the General Administration Department (Karyasan 33) . On given day as per Section 135 (B) (1 to 4) of Representation of People Act, 1951 (part 2) , those individual who are entitle to vote for Loksabha and Vidhansabha and employed in those Profession, Trade, Industrial activities or other establishment should be given Public Holiday on day of declared election. Similarly no deduction or abatement shall be made on account of holiday.
3) As per Rule 135 (b) (1 to3) of Representation of people Act 1951, On the account of State Vidhansabha General Election, as per below mentioned date wise Vidhansabha Constituency Area election day here with Instruction is given to all the establishments, Shops Establishments, Residential hotels, Restaurant, Eating House, Theaters, Industrial Establishment, other establishment, Similarly IT Companies, Shopping Centers, Malls, Retailers etc establishment should be given Public Holiday on day of declared election date to exercise right of the workers to cast their vote.
Date of Election Vidhansabha Constituencies
Wednesday Date 15th Octoberl, 2014 288 Vidhansabha Constituency (Maharashtra State )
4) As per Rule 135 (b) (4) of Representation of people Act 1951, on the day of election, if absenteeism of the employee is causing dangerous or causes huge loss, to this establishment /Industry, and if it is not possible to give full day holiday to the employee to cast their vote Rights , employees working in Establishment/ Industry similarly I.T companies, Companies in trade of Export business, Continuous process Industries, to cast the voting rights employee should be given 2 hrs time or sufficient time in which they can cast their vote.
5) The Employer / Establishment of The Shops, Commercial establishment, Residential Hotel’s, Restaurant, Eating House, Theaters, Industrial Establishment, other establishment, Similarly IT Companies, Shopping Centers, Malls, Retailers, Companies in the trade of export business of above Vidhansabha Constituency should take at most care to strictly follow this instruction.
5) This Government Notification is issued as per the instruction of General Administration Department Wide No. CEO – 2014/ C.NO.136714/33 dated 24th September 2014
6) This Government Notification is Available on the Maharashtra Government’s Website: www.Maharashtra.gov.in and its IP Address is 201410101240104810. This order is issued by certified digital signature.
In the name and order of Maharashtra Governor
Digambar Sonusing Rajput (D.S.Rajput)
Deputy Secretary, Maharashtra Government
Copies:
1) Principle Secretary (Labour) Industries, Energy & Labour Department,Mantralaya.
2) Principle Secretary (Industries) Industries, Energy & Labour Department,Mantralaya.
3) Principle Secretary (Energy) Industries, Energy & Labour Department,Mantralaya.
4) Principle Secretary and Chief Election Officer, General Administrative Department, Mantralaya.
5) Secretary, State Election Commission, New Administrative Building, Mumbai.
6) Director General, Information and Public Relation, Mahasanchanalay,Mantralaya,
7) Labour Commissioner, Bandra (E), Mumbai.
P. Venu
(Expert) 15 October 2014
The Notification has been issued under Section 135B:
Section 135 B. Grant of paid holiday to employees on the day of poll
1[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 be would have drawn had not a holiday been granted to him on that day.
(3) If an employer contravenes the provisions of subsection (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.
In view of the provisions of Sub-section(4), the rule is not mandatory, but only directory. The employer has the discretion not to grant holiday, nevertheless the employee should be given sufficient time to cast his/her vote.
V. VASUDEVAN
(Querist) 15 October 2014
Dear Mr Venu. Thanks for your time and clarification. However, please review your views on sub-section (4). This exception applies only in cases where an employee or employee's absence may cause danger or substantial loss.. and therefore, does not carve out a general exception or affords a discretion to the employer, in my view. Thanks again for your response
P. Venu
(Expert) 15 October 2014
The question of what constitutes "substantial loss" is subjective and is solely within the discretion of the employer.
It is my considered opinion that had not been for this provision, Section 135 B would not not have answered the test of Article 14 & 19(1)(g).
It may also be seen that the objective of the provision is to ensure that the voting rights of the employees are safeguarded and not to grant them a holiday.
V. VASUDEVAN
(Querist) 15 October 2014
Thanks Mr Venu, However, I was not satisfied with your perspective of the objective of the provision and did further research. An Article in LLR resolves this query with authentic reference to the Election Commission's clarifications. I am posting this document in the forum for larger benefit.
malipeddi jaggarao
(Expert) 16 October 2014
When you know the answer, what is the reason of posting your query here? You are capable of analysing the clauses to your advantage. Stand on your analysis and take advantage.
V. VASUDEVAN
(Querist) 16 October 2014
Learned Malipeddi Sir, I did not know the answer and I was to determine the applicability and hence approached the experts forum as one of the repository of knowledge. Simultaneously, I was exploring every possible forum to get this straight and I got it and have published in the forum for the members' advantage. Please be enlightened that this is not for my advantage and my objective is that as counsels we should be advising the employers of the rights and obligations.
malipeddi jaggarao
(Expert) 16 October 2014
4) As per Rule 135 (b) (4) of Representation of people Act 1951, on the day of election, if absenteeism of the employee is causing dangerous or causes huge loss, to this establishment /Industry, and if it is not possible to give full day holiday to the employee to cast their vote Rights , employees working in Establishment/ Industry similarly I.T companies, Companies in trade of Export business, Continuous process Industries, to cast the voting rights employee should be given 2 hrs time or sufficient time in which they can cast their vote.
If the employer can prove that such absenteeism causes dangerous or causes huge losses, he has the option of giving two hours permission in lieu of paid holiday. If the employer chooses to give permission instead of holiday, he should be prepared to defend his stand or face the action that might be contemplated by Election Commission. If the employer wants to take advantage of this clause and avoid giving paid holiday, the employees may make a complaint to the Election Commission. One should follow such exemptions in true letter and spirit.
V. VASUDEVAN
(Querist) 16 October 2014
Thanks. I concur with your considered views.
T. Kalaiselvan, Advocate
(Expert) 18 October 2014
Expert Mr. Malipedddi Jagga Rao has given a very proper view to the subject query, it was not only valuable but also informative.
malipeddi jaggarao
(Expert) 19 October 2014
Thanks for your compliments Shri Kalaiselvan ji!
