Karnataka Elections 2018: Holiday on Polling Day – Compliance and Challenges

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

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2 thoughts on “Karnataka Elections 2018: Holiday on Polling Day – Compliance and Challenges”

  1. Update:

    The Government of Karnataka, by Notification No. DPAR 11 HLL 2018 dated 3.5.2018 has declared Holiday on 12th May 2018 under the Explanation to Section 25 of the Negotiable Instruments Act, in view of Election to Karnataka Legislative Assembly. The Notification is applicable to all the Nationalised Banks, Other Banks, Concerned Offices within the jurisdiction of all Local Bodies and Municipal Corporation. The Government has further ordered to grant Paid Holiday to all the Permanent and Daily Wagers Workers, working in all the Business Undertakings, Industrial Undertakings and any other Public Establishments, on the Day of Polling i.e., 12.5.2018.

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B. Chandrashekar Shetty - Advocate

Mr. Chandrashekar Shetty is a Senior Labour Law Compliance Auditor at BCP Associates and has audited multiple client companies across India. He is also a member of our senior legal advisory practice. Previously he has worked as Deputy Controller, Manager-Industrial Relations and Industrial Relations Officer in KPTCL, Bangalore for more than 30 years. Prior to this, he has dealt with Legal, Personnel and IR matters including Wage Settlements, Grievance Machinery, Manpower Study and Social Security Compliances for about 10 years. He is a Faculty member of Labour Law, HRD Centre, KPTCL Bangalore.

Mr. Shetty holds a B.Com. and L.L.B. degree, Post-Graduate Diploma in Business Administration, Diploma in Public Relations from Bangalore University and PG Diploma in Industrial Relations & Personnel Management from Bharatiya Vidya Bhawan. He is enrolled as Advocate in Karnataka Bar Council and is a Govt. Arbitrator of Chit Funds in Karnataka.

S Venugopal Rao

S Venugopal Rao is an experienced labour law and service matters expert and is a member of the senior advisory team at BCP Associates. Having joined the chambers of Mr. B C Prabhakar in 2012, he is knowledgeable and well versed in multiple employment and labour law topics. S Venugopal Rao holds a Bachelor’s degree in Science from Karnataka University, Dharwar and Bachelor of Law from Bangalore University. He enrolled as advocate in Karantaka State Bar Council in 1976. He joined the chamber of Sri. Kolachalam Srinivasa Rao a leading civil advocate. After practicing for 6 years at Ballari, he joined Orient Paper Mills, Orissa (of G P Birla Group). He was designated as Manager (Law) under the Factories Act in 1995. In 1999, he joined Andhra Pradesh Paper Mills Rajahmundry as Manager Legal and was subsequently elevated as Dy. General Manager (Legal). As Factory Manager & Legal Head, he oversaw compliance of Factories Act and Rules there under towards safety, health and welfare, including compliance under Pollutions and Environmental laws and Explosives Act, etc. Additionally, he is well acquainted with Environment Management System ISO 14001: 2004, Occupations, Health and Safety Series 18000:1999. As Legal head in APPM he has briefed and appeared along with Senior Advocate before Appellate Authority constituted under Water (Prevention & Control of Pollution) Act. He retired from the services of Andhra Pradesh Paper Mills in 2011. As legal head he has handled important cases both in Labour and Civil and has experience in drafting and vetting Contracts, Agreements, Lease Agreement, Conveyance Deeds, , Affidavits and scrutiny of several legal and other documents, Preparing and settling Petitions, Appeals, Plaints, Written Statements, Rejoinders, Affidavits and Written Arguments etc. for submission/pleadings for various legal proceedings.

C K Devappa Gowda - Advocate

C.K. Devappa Gowda (CKD) is an Advocate and Labour Law expert. He holds a Bachelor’s Degree in Science from the University of Mysore and a Degree in Bachelor of Law from Bengaluru respectively. He also holds a Diploma in Social Service Administration from the National Institute of Social Science, Bengaluru. After completing his studies, he had enrolled as a Advocate and initially practiced in the Civil Code attached to the office of BCP. He then worked as Personnel Officer in Chemicals and Textile Manufacturing Industries for 5 years. Thereafter took up employment in one of the largest Public Sector Bank. He has worked in different parts of the country and has extensive experience in the cross country IR domain. The significant part of his service was at corporate level overseeing and implementing HR policies and practices and management of IR. He has been a member of personnel committee of Indian Bank Association. After retirement from service, Mr. Gowda has been working with Mr. BC Prabhakar’s firm for the last 12 years. He has expertise in all areas of people management, drafting of documents relating to service matter including the settlements under the ID Act. He has dealt with all employment laws including appearance before the Courts, Tribunal and Authorities under the different Labour Laws. Mr. Gowda is one of the senior Labour Law experts at BCP Associates.

Srijatha Ghosh - POSH Specialist & Advocate

Srijata Ghosh serves as external member on the Internal Committee of several Companies across various sectors. She handles all kinds of POSH related matters including investigations and inquiries. She provides Training on Sexual Harassment across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members on the legislation (The Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal Act, 2013). She also formulates Policies for Prevention of Sexual Harassment at Workplace (“POSH”) and advises Companies on setting up of their Internal Committees. Srijata is involved in providing Legal Advisory services on POSH and other labour law matters for various clients.

In her previous experience, she has extensively dealt with End-to-End Contract Management, Due Diligence, POSH Compliances, Legal Advisory, etc. Srijata worked with Companies like Accenture India Private Limited, Quess Corp., Capgemini Business Services (India) Limited and Pramata Knowledge Solutions Private Limited. Srijata has handled varied legal issues including drafting, vetting and negotiation of contracts, drafting policies of various organizations. She has resolved issues relating to employment laws and has worked closely with the HR teams. She has provided legal advisory services to senior management. She was also associated with Kolkata High Court in counselling clients with legal matters such as Property, Due Diligence etc. Srijata has worked in an LPO Service Firm, Manthan Legal Services Private Limited for Legal Research, depositions, medical summaries, demand drafting etc.

Srijata completed her B.A.LL.B from M. S. Ramaiah College of Law, Bangalore University in 2009. Srijata is a member of the Karnataka Bar Council since 2010. She is also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Caroline Lobo - POSH Specialist & Advocate

Caroline Lobo has been with BCP Associates for the past 2+ years. She has been handling matters and Inquiries related to the POSH Act including conducting inquiries and trainings/awareness programmes for Senior Management, employees as well as members of the Internal Committee on the POSH Legislation (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) to address Workplace Harassment of Women. She is a member of the Internal Committee for many varied companies and organisations and has reviewed and scrutinized numerous hearings and inquiries on matters relating to sexual harassment at workplace.

She has also handled matters relating to employer-employee related Enquiries, wherein she has reviewed and conducted hearings and enquired into the matters and has guided the Internal Committee and provided guidance in providing recommendations to the management. She is also a Member of the Gender Sensitivity Sub-committee of Karnataka Employer Association (KEA).

Prior to joining BCP Associates, Caroline has has a wide range of experience in corporate, commercial and contract law, mergers and acquisition and has undertaken drafting, vetting, negotiating and finalizing legal and commercial transactions. She started her career in litigation then moved onto the Corporate sector. In the span of 13 years, she has worked at Chambers of Advocate Jayashree Murali, Krishnamurthy and Co. Legal Consultants, Colt Technology Services and Oracle India Pvt. Ltd. She always had a keen interest in Women and Child related issues. She has worked with Child Welfare Committee and NGOS’s. In addition, she has worked with Swasthi Health Resource and Centre, where she was the External member to the Internal Committee (IC). She worked closely with the committee in strategizing, planning, reviewing and implementing the assigned tasks, which included building material to raise awareness against sexual harassment at workplace. Further, she has been involved in conducting inquiries into matters related to sexual harassment at workplace.

Caroline earned her Law degree from University Law College, Bangalore, from where she graduated in the year 2005.

Manoj Kumar – Senior Associate

At BCP Associates, Manoj Kumar is involved in managing and conducting labour law compliance audits of principal employer and contractors. He is also involved in client co-ordination and conducting labour law training programs for vendors. He has conducted on-ground labour law audit for factories. Manoj also provides support in advising vendor clients on labour law queries. He completed B.A., LL.B. from BMS College of Law, Bangalore in 2016

Rashmitha Venkatachalam Das - POSH Specialist & Advocate

Rashmitha Venkatachalam Das is the External Member of the Internal Committee of several reputed Organizations across various sectors. Handling complex inquiries has been her forte and she is extremely passionate about it. She is actively involved in providing Training on Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members. Rashmitha possesses capabilities in delivering sessions in Hindi and Kannada, in addition to English. She has formulated Policies for Prevention of Sexual Harassment at Workplace (“POSH”), advised companies on setting up of their Committee. Rashmitha is involved in providing Legal Advisory services on POSH for various clients spread across diverse sectors. She has also been handling domestic enquiries for various clients. 

Rashmitha possesses experience both at Law Firms and Corporates in various capacities. She started her career at Krishnamurthy and Co, Legal Consultants and then moved on to work as an In- House Legal Counsel with Companies such as Biocon Limited, Columbia Asia Hospitals Private Limited, Adecco India Private Limited. With a long stint in the Corporate side, Rashmitha decided to pursue further education in Law with a specialization in Labour and Employment Laws. She has rich experience in drafting, vetting and negotiation of various types of contracts, providing legal opinions and has driven the team in formulating process and procedures and their implementation. She has drafted several employment related policies in Corporates. Rashmitha has been a part of various key committees in Organizations and assisted committees in scrutiny of documents pertaining to human organ transplant as well as clinical trials.

Rashmitha holds an LL.M. in Labour and Employment Laws from University Law College, Bangalore, which she completed in the year 2018 with Two Gold Medals. She is also a Rank Holder at the University. She has completed BA, LL.B. from Bangalore Institute of Legal Studies, Bangalore University in the year 2009. Rashmitha is a member of the Karnataka Bar Council since 2009 and also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Manisha Vidyadhar – Senior Associate

At BCP Associates, Manisha Vidyadhar is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. Manisha also provides support in advising vendor clients on labour law queries.  She completed B.A., LL.B. from BMS College of Law, Bangalore in 2016.

Amrutha Ananth – Senior Associate

At BCP Associates, Amrutha Ananth is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. She also provides support in advising vendor clients on labour law queries.

Amrutha is also part of the labour law advisory and HR Policy practice and is actively involved in drafting opinions on various aspects of labour laws and formulate and review employment policies and procedure.

Amrutha completed B.A., LL.B. from Christ University, Bangalore in 2015. She is also a semi-qualified Company Secretary.

Sunil Arya – Principle Associate

At BCP Associates, Sunil Arya is part of the labour and employment law advisory and HR Policy practice and is actively involved in drafting and reviewing of employment contracts, opinions, HR policies, employee handbook, show cause notice, etc. for various clients spread across diverse sectors. He conducts training on labour and employment laws. Sunil is also involved in labour law compliance audits of principal employer and contractors and has conducted on-ground labour law audit for factories. In addition, he is engaged in knowledge creation and management of the firm and keenly writes on developments in labour and employment laws.

Prior to joining BCP Associates, Sunil has 10 years of post-qualification experience in diversified portfolios of advisory, drafting, policy analysis and dispute in the domains of contracts, general civil matters, employment law, competition law and construction arbitration matters. Sunil started his career as a Law Researcher in Delhi High Court. He moved on to be part of regulatory analysis team of CIRC, a unit of CUTS International. In addition, Sunil has been part of legal team of Jindal India Thermal Power Limited. He has also taught competition law, tax law and investment law at VIPS, Delhi.

Sunil holds LL.M. from The Indian Law Institute, Delhi. He is First Rank Holder in his thesis. He completed B.A, L.L.B. (Hons.) from I.P. University, Delhi. He also holds First Rank in P.G. Diploma in Competition Policy and Laws from The National Law University, Delhi.

Chandrakala K A – Principle Associate

At BCP Associates, Chandrakala has 12+ years of experience in conducting and managing labour law compliance audits of principal employer and contractors. She is also involved in co-ordination with many clients. She has conducted on-ground labour law audit for factories. She also provides support in advising vendors on labour law queries. Chandrakala is actively involved in research and providing valuable inputs to the firm pertaining to updation in labour law audit function.

Chandrakala started her career in litigation in chamber of Sri. Ashok where she was involved in drafting, pleading and appearance before Karnataka High Courts and lower courts on the criminal side.

Chandrakala completed B.A in Arts from Kuvempu University, Shimoga in 2003 and LL.B. from Mangalore University in 2006.

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