ORDER : D. Hari Paranthaman, J. 1. The petitioner is a Trade Union registered under the Trade Unions Act. It is not in dispute that the petitioner is a representative Union that enters into various settlements with the first respondent Management. It is the grievance of the petitioner Union that when Parliamentary Election and Tamil Nadu State Assembly Election took place on 10.05.2004 and 08.05.2006, respectively, the first respondent Management did not adhere to Section 135-B of the Representation of the People Act, 1951 ("the Act" for short), the Circular dated 07.04.2004 issued by the Election Commission of India based on the aforesaid provision and the consequential letters issued by the Commissioner of Labour dated 26.04.2004 and 10.04.2006, requiring the first respondent to grant paid holiday on the date of election. 2. The first respondent filed a counter affidavit stating that it had rescheduled the shift so as to facilitate the workmen to cast vote and thereafter to come and work and therefore, no fault can be attributed on the part of the establishment in not granting paid holiday to its workmen. While the aforesaid averment was on the merits of the case, the first respondent also pleaded that the writ petitions are not maintainable against a private establishment as no public duty is "cast" on them to declare paid holiday on the election dates. 3. Heard both sides. 4. Though the learned counsel for the first respondent has submitted with unusual vehemence that the writ petitions are not maintainable against a private industry and further, the workmen were not prevented from casting their vote on the election days and there was nothing wrong in rescheduling the shift. 5. At this juncture, it is worth mentioning that the elections are conducted to Parliament and State Assembly pursuant to the Constitutional obligation. Election Commission is a creature of the Constitution of India to ensure that a fair and free election is conducted. 5. At this juncture, it is worth mentioning that the elections are conducted to Parliament and State Assembly pursuant to the Constitutional obligation. Election Commission is a creature of the Constitution of India to ensure that a fair and free election is conducted. It is also pertinent to point out that the Representation of the People Act, 1950 was enacted to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union Territories and matters connected therewith. 6. Subsequently, Parliament enacted the Representation of the People Act, 1951. The Act was to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. It is useful to extract the Statement of Objects and reasons for the enactment of the Act:- "Statement of Objects and Reasons.-During the last Budget Sessions of Parliament the Representation of the People Act, 1950, was passed. It did not contain all the provisions relating to elections but merely provided for the allocation of seats in and the delimitation of, constituencies for the purpose of elections to the House of the People and Legislatures of States, the qualifications of voters at such elections and the preparation of electoral rolls. Provisions for the actual conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of these Houses, the corrupt and illegal practices and other election offences, and the decision of election disputes were all left to be made in a subsequent measure. The Bill seeks to make those provisions." 7. Section 135-B was inserted in the Act by Act 21 of 1996 with effect from 01.08.1996. The Bill seeks to make those provisions." 7. Section 135-B was inserted in the Act by Act 21 of 1996 with effect from 01.08.1996. Section 135-B is extracted hereunder:- "135-B Grant of paid holiday to employees on the day of poll-(1) 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 poll, be granted a holiday. (2) 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 me wages he would have drawn had not a holiday been granted to him on that day. (3) If an employer contravenes the provisions of sub-section (1) or sub-section (2), then such employer shall be punishable with fine which may extend to five hundred rupees. (4) 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." 8. Section 135-B(4) of the Act is the only exception for the employers to keep the establishment running on the poll day. 9. The learned counsel for the first respondent has admitted that the first respondent does not claim that the said establishment is covered under Section 135-B(4) of the Act. If the learned counsel for the first respondent claims so, then, it is a different matter. That is, if the first respondent is an establishment covered under Section 135-B(4) of the Act, then, no statutory duty is cast on the employer to declare holiday during the day of election. Since there is a mandate on the employers under Section 135-B of the Act to grant paid holiday to employees on the day of poll, there is no substance in the argument of the learned counsel for the first respondent that there is no public duty cast on the employer to grant holiday with wages on the poll day. 10. Since there is a mandate on the employers under Section 135-B of the Act to grant paid holiday to employees on the day of poll, there is no substance in the argument of the learned counsel for the first respondent that there is no public duty cast on the employer to grant holiday with wages on the poll day. 10. After the insertion of Section 135-B in the Act, any citizen, who is a workman in an establishment, can knock the doors of this Court or even the Apex Court under Article 32 of the Constitution of India, complaining of violation of fundamental right, as the same relates to participation in the democratic election process, about not being granted paid holiday, as mandated under the said Section. 11. Hence, I have no hesitation to reject the submission made by the learned counsel for the first respondent that the writ petitions are not maintainable against a private establishment, particularly, taking note of the fact that public duty is cast on the employer to declare holiday with wage on the poll day for the smooth conduct of the elections. In fact, we are proud that among the Asian countries which attained independence during 1940s and 1950s, India is the only country, where parliamentary democracy has thrived successfully, while other countries have ruined under the military rule. In the fitness of things, the Parliament thought of introducing Section 135-B in the Act, so as to strengthen the democratic process. Looking at this perspective, it is expected of the employers to extend their utmost cooperation to safeguard the democratic principles. 12. In fact, as per the Constitutional Bench judgment of this Court in K. Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer, Vattur Co-operative Agricultural Bank, (2006) 4 CTC 689 , in case of violation of statutory provision, a writ petition is maintainable. In this case, it is not only violation of statutory right, but, the said right flows from the Constitution of India as well and therefore, employer cannot and shall not choose to deny paid holiday to its employees, as mandated under Section 135-B of the Act. 13. Be that as it may. At this juncture, it is relevant to take note of the Circular issued by the Election Commission of India, dated 06.04.1999 which came to be issued based on Section 135-B of the Act. 13. Be that as it may. At this juncture, it is relevant to take note of the Circular issued by the Election Commission of India, dated 06.04.1999 which came to be issued based on Section 135-B of the Act. The said Circular reads as follows:- "To 1. The Chief Secretaries to Government of all States and Union Territories 2. The Chief Electoral Officers of all States and Union Territories 3. The Secretary to Govt. of India, Ministry of P.P. & P. Department of Personnel and Training, New Delhi. Subject: Grant of Paid holiday to employees on the day of poll - regarding. Sir, I am directed to invite your attention to Commission's letters No. 78/84, dated 9.11.84 and No. 78/87 dated 31.3.1987 as reproduced in Compendium of Instructions on Conduct of Elections - 1998 as items No. 85 and 86 regarding declaration of holiday(s) on the poll day(s) by the Central/State Governments in connection with General Elections and Bye Elections to the House of the People and State Legislative Assemblies. 2. The Representation of the People Act, 1951 has been amended in August, 1996 and a new Section 135B has been added to the Act. The Section 135B is reproduced below:- 135-B Grant of paid holiday to employees on the day of poll.-(1) 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 poll, be granted a holiday. (2) 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. (3) If an employer contravenes the provisions of sub-section (1) or sub-section (2), then such employer shall be punishable with fine which may extend to five hundred rupees. (4) 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. 3. (3) If an employer contravenes the provisions of sub-section (1) or sub-section (2), then such employer shall be punishable with fine which may extend to five hundred rupees. (4) 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. 3. The above provisions require that all establishments and shops shall be closed on the day of poll in the constituency where a General Election/Bye Election is to be held. However, there may be cases where a person is ordinarily resident of the Constituency and registered as an elector, may be serving/employed in an industrial undertaking or an establishment located outside the Constituency having a general/bye election. It is clarified that in such a situation, even those electors including casual workers working outside the Constituency concerned would be entitled to the benefit of a paid holiday extended under the Section 135B(1) of R.P. Act, 1951. 4. 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. 5. The daily wage/casual workers are also entitled for a holiday and wages on poll day as provided in Section 135B of R.P. Act, 1951. 6. The Commission desires that suitable instructions should be issued to all concerned and a copy thereof be endorsed to the Commission for its information and record. 7. The receipt of this letter may please be acknowledged." 14. Clause 4 of the said Circular dated 06.04.1999 facilitates an employer to have night shifts that fall beyond the polling hours. It is stated in Clause 4 of the Circular that holiday may be declared only for the shift during which poll takes place and that the employer shall ensure that there is sufficient time gap between close of poll and commencement of the shift duty. 15. It is stated in Clause 4 of the Circular that holiday may be declared only for the shift during which poll takes place and that the employer shall ensure that there is sufficient time gap between close of poll and commencement of the shift duty. 15. The said Clause 4 of the Circular was the subject matter of a writ petition before the High Court of Bombay at Goa. The Bombay High Court, in the judgment dated 23.02.2004 in The Goa MRF Employees Union v. Shri R.S. Mardolkar, Ex-Officio Secretary, Department of Industries and Labour, Goa held that Clause 4 of the said Circular is contrary to Section 135-B of the Act and accordingly, quashed the same. 16. Thereafter, Election Commission issued a fresh circular dated 07.04.2004 deleting the aforesaid Clause 4 of Circular dated 06.04.1999. In the said Circular, it is made clear by the Election Commission that all shops and establishments shall be closed on the day of poll where a General/Bye-election is to be held. Notwithstanding such Circular, the first respondent seems to have granted permission only for a few hours, during the poll day by adjusting the shifts. 17. In this context, it is relevant to extract paragraphs 4 and 7 of the counter affidavit filed in W.P. No. 17710 of 2004 and W.P. No. 16368 of 2006:- "4. It is submitted that an election to the House of People was scheduled for the Chennai City on 10.05.2004. The 1st respondent put a notice on 7.5.04 refixing the shift hours of me first and general shifts on 10.05.04 so that all the employees can conveniently cast their vote in the election and turn up for duty. The 1st respondent was not averse to grant leave to an elector who has to cast his vote outside the Chennai City. As per the notice dated 7.5.04 employees who were to report for work in the first shift on 10.05.04 were permitted to leave one hour earlier, i.e., at 1 p.m., Similarly, employees who were required to report for work on general shift on 10.05.04 could report at 10.30 a.m. instead of 9 a.m. As the employees who had to report for work in the second shift had more than 7 hours for voting, there was no need to change the second shift timings. Similarly the third shift timings were outside the voting hours and hence no change was required to be made in the third shift." "7. It is submitted that an election to the State Assembly was scheduled for the Chennai City on 8.5.2006. It is submitted that the 1st respondent had put up a notice informing the workmen that during their duty/shift they were granted two hours permission to enable them to exercise their franchise. The 1st respondent was not averse to grant leave to any workmen, who were to exercise franchise in an election outside the city scheduled on the same day. The Petitioner union insisted that a paid holiday should be declared for the whole day and the factory should be kept closed. I affirm that, barring the permanent workmen who are the members of the Petitioner's Union, all other members in the managerial and supervisory cadre turned up for duty and exercised their franchise during the period of time off. On 8.05.2006, the 1st Respondent's factory was kept opened and temporary employees and other employees reported for work and had availed the time off, for exercise their franchise." 18. From a reading of the aforesaid counter affidavits of the first respondent, it is clear that the first respondent, as a matter of right, claims to run the industry during the poll hours and enforce the attendance of workmen, which is impermissible due to the clear cut mandate under Section 135-B of the Act. 19. The learned counsel for the first respondent has brought to my notice, the judgment of the Kerala High Court reported in 1999 LLR 1156 [Binani Zinc Employees Union, Binanipuram P.O. by the Vice President and another v. The Labour Commissioner, Trivandrum and others] to fortify his contention that under Section 135-B(4) of the Act, it is not mandatory that all establishments will have to grant paid holiday to the employees on the date of poll. 20. I have perused the said judgment and the said judgment is distinguishable on facts in view of the fair submission made by the learned counsel for the first respondent that the first respondent establishment is not covered under Section 135-B(4) of the Act. It was a case, wherein, the employer sought exemption under Section 135-B(4) of the Act. 20. I have perused the said judgment and the said judgment is distinguishable on facts in view of the fair submission made by the learned counsel for the first respondent that the first respondent establishment is not covered under Section 135-B(4) of the Act. It was a case, wherein, the employer sought exemption under Section 135-B(4) of the Act. On facts and further taking into account, Section 135-B of the Act, the Kerala High Court found that the employer is covered under Section 135-B(4) of the Act. 21. 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. No costs.