Dear Sir
Under the Representation of Peoples 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 circumstaces 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 circumstnces under which "substantial loss" could be caused due to the absence of the elector. Any body having information on this point please clarify.
From India, Madras
169Under the Representation of Peoples 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 circumstaces 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 circumstnces under which "substantial loss" could be caused due to the absence of the elector. Any body having information on this point please clarify.
From India, Madras
Dear Sir, (V.Harikrishnan),
Thanks for your valuable input.
With due respect I would like to inform you that the motive behind amendment of 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 make sure that no eligible citizen of India is denied the right given by the constitution i.e Right to Vote.
The motive of the parliament was not to make sure that all eligible citizen should get full day paid holiday and enjoy full day with family and friends.
It was because of the very clear motive/purpose of the amendment of 1996 that the matter has not reached the court till now. Nobody approached the court to define the terminologies used in the act.
There was some confusion on full day paid hoilday with the orgainizations working in shifts and then the Election Commission of India issued a clarification in 1999 that for the 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 above clarification of the Election Commission is enough to understand the motive of the highest body responsible for conducting elections in the country.
As far as the term 'substantial loss' is concerned the term may vary from organization/establishment to organization/establishment. For one establishment even 10,000/- may be a substantial loss whereas for the other
establishment even 1,00,0000/- may not be a substantial loss.
Its very true that if the matter will reach court it will invite judicial scrutiny.
But lets not make matter complicated. 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 his/her professional obligations.
That is the responsibility of all of us managing organizations at senoir or junior level. Lets not knock the door of the court for each and every steps we need to take to run an organization.
regards,
Kamal Prasoon Sinha
From India, Pune
Thanks for your valuable input.
With due respect I would like to inform you that the motive behind amendment of 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 make sure that no eligible citizen of India is denied the right given by the constitution i.e Right to Vote.
The motive of the parliament was not to make sure that all eligible citizen should get full day paid holiday and enjoy full day with family and friends.
It was because of the very clear motive/purpose of the amendment of 1996 that the matter has not reached the court till now. Nobody approached the court to define the terminologies used in the act.
There was some confusion on full day paid hoilday with the orgainizations working in shifts and then the Election Commission of India issued a clarification in 1999 that for the 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 above clarification of the Election Commission is enough to understand the motive of the highest body responsible for conducting elections in the country.
As far as the term 'substantial loss' is concerned the term may vary from organization/establishment to organization/establishment. For one establishment even 10,000/- may be a substantial loss whereas for the other
establishment even 1,00,0000/- may not be a substantial loss.
Its very true that if the matter will reach court it will invite judicial scrutiny.
But lets not make matter complicated. 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 his/her professional obligations.
That is the responsibility of all of us managing organizations at senoir or junior level. Lets not knock the door of the court for each and every steps we need to take to run an organization.
regards,
Kamal Prasoon Sinha
From India, Pune
Dear Mr.Sinha Can you please upload a copy of the Election Commission Notification of 1999 referred to by you. It would be of immense help to me. Thanking You
From India, Madras
From India, Madras
Dear Mr.Sinha
Thanks for uploading the Election Commission Notification of 1999. In Chennai during the General Elections to the Tamilnadu Assembly in the year 2006, one software company in Chennai did not declare a holiday for any of its employees, whether they were on duty during the polling hours or whether they worked in shift. A complaint was lodged against the Company by a person not at all connected with the Company that the company violated the RP Act and the enquiry started. Finally the Company had to buy peace with the employees whom it asked to work during the polling day. I thought that this piece of information will be of interest to you.
With regards
From India, Madras
Thanks for uploading the Election Commission Notification of 1999. In Chennai during the General Elections to the Tamilnadu Assembly in the year 2006, one software company in Chennai did not declare a holiday for any of its employees, whether they were on duty during the polling hours or whether they worked in shift. A complaint was lodged against the Company by a person not at all connected with the Company that the company violated the RP Act and the enquiry started. Finally the Company had to buy peace with the employees whom it asked to work during the polling day. I thought that this piece of information will be of interest to you.
With regards
From India, Madras
Dear Mr. Harikrishnan,
Thanks for sharing information.
Here the in question is whether those employees had casted their vote or not? If they were not able to cast their vote due to their official work then the (software company) has committed an offence under RP Act.
Again when an official complaint with the district election official has been lodged, then the matter is between the offender(comapny) and the election officials. What role those employees played in the settlement of the issue i cant understand.
I have also faced such a situation but I (being representative of the company) protested against the order of one deputed election officer with the Chief Electoral Officer of the state and the matter was settled without any problem. My point was the employer has not committed any offence under RP Act as working employees have casted their votes and presence of those employees in the factory was a must (technically) on the polling day.
regards,
Kamal Prasoon Sinha
From India, Pune
Thanks for sharing information.
Here the in question is whether those employees had casted their vote or not? If they were not able to cast their vote due to their official work then the (software company) has committed an offence under RP Act.
Again when an official complaint with the district election official has been lodged, then the matter is between the offender(comapny) and the election officials. What role those employees played in the settlement of the issue i cant understand.
I have also faced such a situation but I (being representative of the company) protested against the order of one deputed election officer with the Chief Electoral Officer of the state and the matter was settled without any problem. My point was the employer has not committed any offence under RP Act as working employees have casted their votes and presence of those employees in the factory was a must (technically) on the polling day.
regards,
Kamal Prasoon Sinha
From India, Pune
Dear Mr Sinha
Thanks for your kind reply post
1.In the case referred to by me, I am aware of the manner in which the issue was settled.But I cannot divulge the information in a public forum like this.
2.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 poll could 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 over rule the provisions of a law enacted by Parliament.
3.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.
From India, Madras
Thanks for your kind reply post
1.In the case referred to by me, I am aware of the manner in which the issue was settled.But I cannot divulge the information in a public forum like this.
2.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 poll could 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 over rule the provisions of a law enacted by Parliament.
3.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.
From India, Madras
Dear Mr. Harikrishnan,
I agree that the law enacted by the 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 its the EC which conducts the elections and during elections the EC's has a final say on any matter related to conduct of elections.
Election Commission notification was issued to the officials (the Chief Secretaries and the Chief Electoral Officers of the States and UTs) directly responsible (incharge) for the conduct of elections to remove certain confusions prevailing among them. This notificatin is certaily not a tool to avoid the liability under Section 135B of RP Act.
Lets not forget that Section 135B of RP Act has a clause 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 true sense.
Section 135B of RP Act was passed to make it sure that every citizen must use their right to vote. It was not passed to harass organizations the for no geniune reasons.
Keeping the whole establishment open (on the polling day)... and requesting few employees to work for few hours (on the polling day) (as their absence may cause substantial loss to the organization) that too after making it sure that those employees have casted their votes, is a totally different conduct of the employer.
I am talking about the 2nd conduct of the employer.
Its certainly not possible for me to give details of my case in a public forum.
Regards,
Kamal Prasoon Sinha
From India, Pune
I agree that the law enacted by the 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 its the EC which conducts the elections and during elections the EC's has a final say on any matter related to conduct of elections.
Election Commission notification was issued to the officials (the Chief Secretaries and the Chief Electoral Officers of the States and UTs) directly responsible (incharge) for the conduct of elections to remove certain confusions prevailing among them. This notificatin is certaily not a tool to avoid the liability under Section 135B of RP Act.
Lets not forget that Section 135B of RP Act has a clause 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 true sense.
Section 135B of RP Act was passed to make it sure that every citizen must use their right to vote. It was not passed to harass organizations the for no geniune reasons.
Keeping the whole establishment open (on the polling day)... and requesting few employees to work for few hours (on the polling day) (as their absence may cause substantial loss to the organization) that too after making it sure that those employees have casted their votes, is a totally different conduct of the employer.
I am talking about the 2nd conduct of the employer.
Its certainly not possible for me to give details of my case in a public forum.
Regards,
Kamal Prasoon Sinha
From India, Pune
- I want to share some information here. I am from Pune, Maharashtra. I have gone thru all the posts in the thread above and without going into technicalities of P R Act and notification, I would like to share the following
- I am not sure whether declaring a holiday for entire day is necessary. In case of well known manufacturing company and many other companies in industrial belt of Pune, voting day was not declared as holiday during many past elections.
- In spite of strong Union presence in these manufacturing cos. Election Day was not a Holiday. On some occasions shift timings were so adjusted that employees were in a position to cast their votes, without any problem. Timings of only 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 general shift were allowed to leave two hours early and regular company transport was made available accordingly.
- Above arrangements were made public in advance by issuing a official circular to all employees. No action was taken against any company by election commission or government.
- Incidentally, I am wondering, what happens to voting rights of govt. employees on election duty, Policemen, Railway employees and so on..They can not skip their duty.
From India, Pune
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 continous 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 manfacturing company declare full day holiday on the polling day...yes there are adjustments so that employees should cast their votes.
I have seen there is a confusion even among officials on election duty regarding the implementation of section 135B of RP Act. To remove this doubt the Election Commssion itself issued a clarification.
I have seen this personally when a junior level election official filed an official complaint against my company and enquiry was instituted by the district election officer. We submitted all relevant documents and evidences showing that the presence of those employees was a must and also that they have casted 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 dist. election officer gave us a clean chit as no offence was committed under RP Act.
regards,
Kamal prasoon Sinha
From India, Pune
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 continous 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 manfacturing company declare full day holiday on the polling day...yes there are adjustments so that employees should cast their votes.
I have seen there is a confusion even among officials on election duty regarding the implementation of section 135B of RP Act. To remove this doubt the Election Commssion itself issued a clarification.
I have seen this personally when a junior level election official filed an official complaint against my company and enquiry was instituted by the district election officer. We submitted all relevant documents and evidences showing that the presence of those employees was a must and also that they have casted 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 dist. election officer gave us a clean chit as no offence was committed under RP Act.
regards,
Kamal prasoon Sinha
From India, Pune
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135B-PAID HOLIDAY FOR ELECTION DAY.pdf