Constitutional Right To Vote
Right to vote during any election in India is a Constitutional Right. This Constitutional Right is enshrined under Article 326 of the Indian Constitution where voting rights are guaranteed to the citizens of India under the concept of Adult Suffrage. However this right is just a statutory right and not a fundamental right guaranteed under Part III of the Indian Constitution.
As far as Indian labour laws are concerned one of the central objectives of it is to safeguard the employee’s right which includes the right of the employees to exercise their franchise during any elections where they are eligible to vote. This right cannot be exercised if voters are kept from voting on the poll day for reasons of work thereby calling for an election holiday to be granted to such employees.
Provisions Of Labour Law
There is no specific legislation either framed by Central or State Government which governs the election holiday to be granted to the employees. However certain State Governments have enacted The Industrial Establishments (National and Festival Holidays) Act (hereinafter referred as NFH Act) and have emphasized on grant of paid holiday on the polling day.
For example
- According to Section 3A of The Karnataka Industrial Establishments (National and Festival Holidays) Act, 1963 when a general election to the House of the People or to the State Legislative Assembly or an election to fill up any casual vacancy in the House of the People or the State Legislative Assembly is held under the Representation of the People Act, 1951 , every employee (other than an employee in an Industrial establishment owned or controlled by the Government of India) whose name is included in the electoral roll of the constituency where such election is held, shall be allowed on the polling day, a day’s paid holiday to enable him to exercise his franchise.
- Section 3(2) of The Orissa Industrial Establishment (National and Festival) Holidays Act, 1969 provides that in the event of any general election or bye-election to Parliament or the State Legislative Assembly, the date of every such election as notified by the Election Commission shall be allowed as a holiday of one whole day. Provided that in the case of a bye-election, the date of such elections shall be allowed as a holiday only in respect of employees who belong to the concerned constituency.
So the states where the Industrial Establishments National and Festival holidays Act have explicitly given a paid holiday to the employees in the event of any election in that case the employer has to compulsorily give a paid holiday to its employees to exercise their franchise.
States Where NFH Act Is Not Applicable And If Applicable There Is No Specific Provision For Election Holiday
Irrespective of the fact whether the State Governments have enacted the NFH Act for their State the right of employees to get a paid holiday on the election day is well guarded by Section 135-B of The Representation of Peoples Act, 1951.
As per Section 135-B (1) of The Representation of Peoples Act, 1951 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. This applies to all categories of employees, including those working for government, public sector undertakings, banks, financial institutions, and private businesses.
Sub Section 2 of the same states that 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. In a nutshell it stated that a paid holiday shall be granted by an employer to every employed person who is entitled to vote.
However the provisions of this section shall not apply to any elector whose absence may cause danger or substantial loss in respect of employment in which he is engaged. So a succor has been provided to the employer where no paid holidays needs to be provided to such a category of employees who are engaged in work of such kind where their absence from work would cause danger or substantial loss to the employer.
There is a considerable amount of confusion as to what constitutes a substantial loss to the employer. The term substantial loss is subject to the interpretation of the Court of Law hence the employer should exercise reasonableness and be prudent in defining the term substantial loss and should not mince the term in a way which would adversely affect the employees eventually paving a way for a dispute between employer and employee.
Notifications Issued By The Election Commission/state Governments Granting A Paid Holiday To The Employees
The Election commission of India, State Election Commission or the State Government as the case may be can declare the polling day as a paid holiday for the employees.
For ex- The Haryana Government in exercise of the powers conferred by Section 28 of The Punjab Shops and Commercial Establishments Act,1958 fixed “Sunday” the 04.12.2022 to be the holiday with wages for all for all Shops and Commercial Establishments falling with the jurisdiction area of the State of Haryana for only those employees who are enrolled as voters in Delhi to enable them to cast their votes via a Notification dated 25th Nov, 2022.
Our Opinion
Right to vote being a statutory right which enables the voter to express their opinion freely as to whom to vote should be encouraged by the employers by creating adequate amount of awareness amongst the employees besides providing them sufficient means to exercise their franchise, paid holiday on the polling day being one of such means.
Contributed by: TeamLease HRtech
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