1 30.8.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1420 OF 2010 M/s. FIS Global Business Solutions (India) Pvt. Ltd & anr. …..Petitioners V/S. Mr. M.A. Parulekar & Ors. …..Respondents Mr. J.P. Cama, Senior Counsel i/by. R.D. Suvarna, Advocate for the petitioners. Mrs. Lata Desai i/by. Dr. Pallavi Divekar, Advocate for respondents no.1 and 2. Mrs. U.V. Kezriwal, APP for the State-respondent no.3. CORAM : - SMT. R.P. SONDURBALDOTA, J. 30TH AUGUST, 2011. P.C. :- 1. Heard learned counsel for the parties. 2. By this petition, the petitioners seek quashing of the proceedings in Criminal Case No. 3964/SS/2009 pending in the court of the Additional Chief Metropolitan Magistrate, 38th Court, Ballard Estate, Mumbai filed by respondents no.1 and 2 for 2 30.8.2011 contravention of Clause 13(1)(c) of the Private Security Guards (Regulation of Employment and Welfare) Scheme, 2002 read with Section 3 of Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. Summonses have been issued against the petitioners by the learned Magistrate by his order dated 21st July, 2009. The petitioners have preferred to directly approach this Court without invoking the revisional jurisdiction of the Sessions Court against the order of issuance of process. Respondent no.3 is the State of Maharashtra and respondent no.4 is the Security Agency which was supplying security guards to the petitioners. 3. Petitioner no.1 is the Company incorporated under the provisions of the Companies Act, 1956. It was formally known as “E. Fund International (I Private Limited)”. Petitioner no.2 is head of it’s administration. Petitioners no.1 and 2 are the original accused nos.1 and 3. Accused no.2 is its Director one, Mr. Kim Jones. 4. On 16th April, 2008 respondent no.1 inspected the establishment of petitioner no.1 and found that there were 3 persons deployed as security guards in the premises. He therefore issued show cause notices dated 14th July, 2008 to the 3 30.8.2011 petitioners calling upon them to show cause as to why proceedings should not be initiated against them for contravention of Clause-13 of the Private Security Guards (Regulation of Employment and Welfare) Scheme (Amended), 2005 read with Clause 42 of the Scheme and Section 3(3) of the State Act. Thereafter, on 27th March, 2009 he filed the above proceedings against the petitioners and one Mr. Kim Jones. 5. The petitioners contend that the issuance of show cause notice and initiation of criminal proceedings against them is in contravention of the order dated 26th March, 2008 passed by this Court in Writ Petition No. 1408 of 2007. The petitioners were not parties to that petition. It had been filed by respondent no.4 praying inter-alia for a declaration that in view of the provisions of the Private Security Agencies (Regulation) Act, 2005 (hereinafter referred to as ‘the Central Act’) the provisions of the State Act and/or the Rules framed thereunder are not applicable to the security agencies who have applied for and obtained licenses under the Central Act for carrying on their business of supplying security guards. At the time of admission of the petition, this Court had by its order dated 26th March, 2008 directed respondent no.2 not to take coercive action against such petitioners whose applications were pending before the State Government until the 4 30.8.2011 decision was taken by the State Government on their applications. The petition later came to be dismissed by the judgment and order dated 14th August, 2009. But, the interim order was continued for a period of 8 weeks. Respondent no.4 has challenged the order of dismissal of its petition in the Apex Court, which has continued the interim relief granted by this Court pending the hearing of the proceedings before it. In view of the order dated 26th March, 2008, according to the petitioners, respondents no.1 and 2 ought not to have conducted inspection of their establishment and issued the show cause notices. The second ground of challenge is limited to petitioner no.2. It is contended that petitioner no.2 is not responsible for engaging the services of the security guards and also that he is not the authorized representative or manager of petitioner no.1. According to them, one Mr. Arun Annigeri is the authorized representative and manager of petitioner no.1. 6. The Maharashtra Private Security Guards (Regulation of Employment And Welfare) Act, 1981 has been enacted for regulating the employment of private security guards employed in factories and establishments in the State of Maharashtra and for making better provisions of the terms of employment and welfare through the establishment of a board under Section 6. The Act 5 30.8.2011 refers to two employers i.e. “employer” and “principle employer”. The definitions of the two terms under the Act read as follows :- “S. 2(3) “employer” in relation to a Security Guard in the direct employment of an agency or agent and deployed in a factory or establishment through such agency or agent, means such agency or agent; S. 2(8) “principal employer”, in relation to any class or classes of Security Guards deployed in a factory or establishment by the agency or agent or Board, means the person who has ultimate control over the affairs of the factory or establishment and includes any other person to whom the affairs of such factory or establishment are entrusted whether such person is called Authorized Representative, Manager or by any other name prevailing in the factory or establishment; Clause-13 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 2002 requires, both the principal employer and the employer agency to register themselves with respondent no.2-Board. It requires every principal employer who had engaged private security guards before commencement of the Scheme to get himself registered with respondent no.2 by applying in the prescribed form. Clause-13(2) requires that every employer agency which has directly employed private security guards for deployment to various agencies to whose security guards the State Government has granted exemption from operation by issuing the necessary notification, shall get itself registered by applying in the form 6 30.8.2011 prescribed therefor. It is thus seen that there must be separate registration of the employer agency and principal employer with respondent no.2. Clause-42 of the Scheme is the penal clause provides that whoever contravenes the provision of Clause-13, shall on conviction, be punished with imprisonment for a term of 3 months or with fine which may extend to Rs.500/- or both. Admittedly, both petitioner no.1 and respondent no.4 are not registered with respondent no.2. 7. Mr. Cama, the learned Senior Counsel, appearing for the petitioner, submits that since respondent no.4 has been protected by the interim order dated 26th March, 2008 which protection is continued till date, no officer of respondent no.2 could have inspected the establishments where the security guards employed by respondent no.4 have been deployed. I find no merit in the submission for two reasons. Firstly, that the petitioners are not parties to the petition filed by respondent no.4 in which the interim order relied upon had been passed and secondly because the Scheme requires separate registrations by both, the employer agency and the principal employer with respondent no.2. Admittedly, petitioner no.1 is the principal employer. Perusal of the definition of principal employer quoted above, shows that the person having ultimate control over the 7 30.8.2011 affairs of the factory or establishment, is the principal employer and the term includes any other person to whom the affairs of the establishment are entrusted, whether such a person is authorized representative or manager or described by any other name prevailing in the establishment. Petitioner no.2 has been described in the complaint as the head of administration. Therefore, he would be covered by the definition of principal employer and as such cannot escape the liability under the Act and the Scheme. 8. Mr. Cama, relying upon the decisions of the Apex Court and this Court being (1) Sham Sunder and Others V/s. State of Haryana reported in (1989) 4 Supreme Court Cases page 630, (2) National Small Industries Corporation Limited V/s. Harmeet Singh Paintal and another reported in (2010) 3 Supreme Court Cases page 330 and (3) Transport Corporation of India Ltd V/s. R.M. Gandhi, Regional Provident Fund Commissioner of Maharashtra and Goa and Others reported in 1991 Mh.L.J. page 1055, submits that, the allegations in the complaint against petitioner no.2 are vague and do not indicate as to how petitioner no.2 can be said to be in- charge of the day-to-day affairs of petitioner no.1 or controlled its day-to-day activities. As has been rightly pointed out by Ms. Lata 8 30.8.2011 Desai, the learned counsel for respondent no.1 and 2 the decisions cited by Mr. Cama are not relevant in the facts of the present proceedings. All the three decisions deal with the principle of vicarious liability in criminal proceedings. She points out that petitioner no.2 is not sought to be made vicariously liable, but, he is sought to be made directly liable in view of the definition of principal employer under the Act. 9. For the above reasons, I find no merit in the petition and hence dismiss the same. [SMT. R.P. SONDURBALDOTA, J]