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2004 DIGILAW 231 (BOM)

Goa MRF Employees Union v. R. S. Mardolkar

2004-02-23

NISHITA MHATRE, P.V.HARDAS

body2004
ORAL JUDGMENT P.V. Hardas, J.––This Petition raises an important question in respect of interpretation of the word "day" occurring in Section 135-B of the Representation of the People Act, 1951. 2. It is not necessary for us to advert to the various facts which are stated in the petition as this Court is only called upon to interpret the words "day of poll" in Section 135-B of the Representation of the People Act, 1951 as against a Circular issued by the Election Commission of India dated 6th April, 1999. 3. The Election Commission of India by its Circular dated 6th April, 1999, and in particular, in para 4 of the Circular, has stated, which is reproduced thus :–– "Further, there are industrial undertakings/establishments which are working on shift basis. A doubt has been raised whether paid holiday is to be declared only for the period/shift during which a poll is to be taken and not for other shifts which may commence after the conclusion of the poll. It is clarified that a holiday may be declared only for the shift during which a poll is to be taken. However, it should be ensured that there should be sufficient time gap between the close of poll and commencement of the shift duty". (Emphasis supplied) By virtue of this Circular, the Election Commission while interpreting the word "day of poll" in Section 135-B has stated that a holiday could be declared only for the shift during which the poll is taken and the other shifts could function as usual if they commenced after the polling hours. The Commission further directed that there should be sufficient time gap between the close of poll and the commencement of the shift duty. 4. A perusal of Section 135-B of the Representation of the People Act, 1951, makes it abundantly clear that the Legislators intended the "day of poll" to mean full 24 hours. 5. Mr. Valmiki Menezes, learned counsel appearing on behalf of the petitioner has relied on Black's Law Dictionary, Seventh Edition, page 402 for interpretation of the word "day". The learned Author while referring to "calendar day" has held it as a consecutive 24 hours day running from midnight to midnight. Even otherwise, the other Sections of the Representation of the People Act, 1951 carves out exception in respect of polling hours. The learned Author while referring to "calendar day" has held it as a consecutive 24 hours day running from midnight to midnight. Even otherwise, the other Sections of the Representation of the People Act, 1951 carves out exception in respect of polling hours. Section 135-B, by the use of the word "day", clearly indicates that a holiday has to be declared on the day of the poll and the day of the poll would include full 24 hours i.e. from midnight to midnight. This being the position, the contents of para 4 of the Circular issued by the Election Commission of India, dated 6th April, 1999, indicating otherwise is not in accordance with law. The mandate of Section 135-B is clear that every person entitled to vote in an election to the House of the People or the Legislative. Assembly shall be granted a holiday on the day of poll. The industrial establishment, business, trade etc. shall remain closed on the day of poll. The Election Commission does not derive any statutory power for issuing the Circular which is impugned in the present petition. Section 135-B of the Representation of the People Act, 1951, does not carve out any exception in case of industrial undertakings/establishments which are working on shift basis. Therefore, there is no ground at all for the Election Commission to opine that a paid holiday be declared only for the shift during which the poll is to be taken. The only a exception which is carved out in Section 135-B is in relation to an elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged. However, that exception does not fall for our consideration in the present matter. According to us, therefore, the use of the words "day of poll" would, therefore, mean full 24 hours and the industrial undertakings/establishment which are working on shift basis cannot declare a holiday only for the shift during which the poll is held. 6. Mr. A.N.S. Nadkarni, learned Advocate General appearing on behalf of Election Commission of India has filed an affidavit in this Court in which it is stated that the said circular is not a notification issued under any statutory power is it meant to dilute the consequences of the provision of Section 135-B of the Representation of the People Act, 1951. Mr. A.N.S. Nadkarni, learned Advocate General appearing on behalf of Election Commission of India has filed an affidavit in this Court in which it is stated that the said circular is not a notification issued under any statutory power is it meant to dilute the consequences of the provision of Section 135-B of the Representation of the People Act, 1951. The affidavit further states that in the event of the conflict, the provision of Section 135-B will prevail. 7. According to us, the contents of para 4 of the circular issued by the Election Commission of India dated 6th April, 1999, is de hors Section 135-B of the Representation of the People Act. In that view of the matter, we strike down para 4 of the said circular and make Rule absolute in terms of prayer clause (bb) of the petition by holding that para 4 of the circular, being contrary to Section 135-B of the Representation of the People Act, 1951 is quashed and set aside. In respect of the relief claimed in prayer clause (bbb), we leave it to the authorities to take appropriate action as is deemed necessary by them. 8. Rule made absolute accordingly with no order as to costs. Petition disposed of.