Let Employees Cast Their Vote On Election Day, Even If It Causes Inconvenience To Employers: Madras High Court

The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy made an ardent appeal to all the employers to make it possible for their employees to cast their vote on election day, even if it entails a degree of inconvenience to the employers.

Noting that under the Constitutional scheme, every citizen has equal rights, the Court directed both the State Government and the Election Commission

"To publish appropriate notifications to make the employees aware of their rights so that the employees may assert themselves and take appropriate steps to exercise their franchise."

Significantly, Election Commission has also been given the liberty to indicate that subsequent complaints may be entertained and if found credible, the complaints may result in criminal proceedings being instituted.

The matter before the Court

The Court was hearing public interest litigation filed to ensure that person engaged primarily in the unorganized sector and in private employment are afforded a chance to participate in the exercise of voting at the ensuing State elections.

The petitioner pointed out that even though Section 135B of the Representation of the People Act, 1951 [Grant of paid holiday to employees on the day of poll], mandated that election day would be a paid holiday for employees engaged in any business, trade, industrial undertaking or any other establishment and who are entitled to vote, as a matter of fact, employers do not allow the concerned employees to take a day off and there is little done in the enforcement of the provision.

In response to this, the Election Commission said that the fine is so insignificant (rupees 500) that the provision does not work effectively as a deterrent.

Further, it was also submitted that the exception carved out in sub-Section (4) to Section 135B of the Representation of the People Act, 1951 gives a handle to employers to use the same as an excuse.

Notably, sub-section 4 states 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.

Case title- M. Ahamed Shahjahan @ M.A.Shahjahan v. Chief Electoral Officer (CEO) and Principal Secretary to the Government State of Tamil Nadu Public (Elections) [W.P.No.7720 of 2021]

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