-1- W.P.Nos. 6749 & 4252 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6749 OF 2009 Maharashtra Suraksha Rakshan Aghadi, ) a registered Trade Union, having its office at ) “Shramik”, Plot No. 31, Lokmanya Tilak Vasahat, ) Opp. Swami Narayan Mandir, Dadar (E), Mumbai-400 015 )..Petitioner versus 1. State of Maharashtra, through the Secretary, ) Ministry of Labour, Mantralaya, Mumbai-400 032 ) 2. The Security Guards Board for Greater Mumbai ) and Thane District, having its office at Copper Roller ) Mills Compound, L.B.S. Marg, Bhandup (W), ) Mumbai-400 078 ) 3. M/s. Industrial Security Consultants Pvt. Ltd. ) No.2, Amrapali, 409, Rajashri Shahu Maharaj Marg, ) Teligalli, Andheri (E), Mumbai-400 069 ) 4. M/s. New Bombay Park Hotel Pvt. Ltd., ) Plot No.1, Sector No. 10, near C.G.O Court, ) CBD Belapur, Navi Mumbai-400 014. ).Respondents Mr. K.K. Singhvi, Senior Advocate, with Mr. Sushil Mahadeshwar, instructed by Smt. Ranjana Todankar for the petitioner. Smt. S.S. Bhende, AGP, for respondent No.1. Smt. Lata Desai, instructed by Smt. P. Divekar, for respondent No.2. Mr. A.J. Rizvi for respondent No.3. Mr. B. Palavi for respondent No.4. WITH WRIT PETITION NO. 4252 OF 2009 -2- W.P.Nos. 6749 & 4252 of 2009 Maharashtra Suraksha Rakshan Aghadi, ) a registered Trade Union, having its office at ) “Shramik”, Plot No. 31, Lokmanya Tilak Vasahat, ) Opp. Swami Narayan Mandir, Dadar (E), Mumbai-400 015 )..Petitioner versus 1. The Security Guards Board for Greater Mumbai ) and Thane District, having its office at Copper Roller ) Mills Compound, L.B.S. Marg, Bhandup (W), ) Mumbai-400 078 ) 2. M/s. New Bombay Park Hotel Pvt. Ltd., ) Plot No.1, Sector No. 10, near C.G.O Court, ) CBD Belapur, Navi Mumbai-400 014. ) 3. M/s. Industrial Security Consultants Pvt. Ltd. ) No.2, Amrapali, 409, Rajashri Shahu Maharaj Marg, ) Teligalli, Andheri (E), Mumbai-400 069 ).Respondents Mr. K.K. Singhvi, Senior Advocate, with Mr. Sushil Mahadeshwar, instructed by Smt. Ranjana Todankar for the petitioner. Smt. Lata Desai, instructed by Smt. P. Divekar, for respondent No.1. Mr. B. Palavi for respondent No.2. Mr. A.J. Rizvi for respondent No.3. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. Judgment reserved on : 06 th July, 2010 Judgment pronounced on : 09 th August, 2010 JUDGMENT: (Per P.B. Majmudar, J.) It is agreed by the leaned counsel appearing for the parties that both these writ petitions can be finally disposed of at the admission stage itself. -3- W.P.Nos. 6749 & 4252 of 2009 Hence, both these writ petitions are disposed of by this common judgment. 2. Rule. Learned AGP and advocates appearing for respective respondents waive service of Rule. With the consent of the parties, Rule is made returnable forthwith and heard. 3. Firstly we shall deal with Writ Petition No. 6749 of 2009. 3.1 The petitioner union has prayed for quashing the notification dated 8th April, 2009 issued by the first respondent, a copy whereof is at Annexure-B to the petition, by which exemption has been granted to the Security Guards employed by respondent No.4-principal employer under Section 23 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981(hereinafter referred to as “the Act”). By the aforesaid notification, the Government granted exemption from the operations of all or any of the provisions of the Act and the Scheme, the Security Guards employed or to be employed by the employer agency specified in Sr. No. 1 of the Schedule-1, appended to the notification and deployed to the principal employer for a period of three years from the date of application of the notification in the official gazette subject to the condition as prescribed in Schedule-II. The said notification dated 8th April, 2009, for ready reference, reads thus: “Industries, Energy and Labour Department, Mantralaya, -4- W.P.Nos. 6749 & 4252 of 2009 Mumbai-400 032. Dated: 8th April, 2009. No. SGA-1508/C.R. 1237/Lab-5:- Whereas certain Employer Agencies employing Security Guards in Brihanmumbai and Thane Districts have applied for grant of exemption for the Security Guards employed by them, under Section 23 of the Maharashtra Private Security Guards (Regulation of Employment & Welfare) Act, 1981 (MAH LVIII of 1981) (hereinafter referred to as the said Act) on grounds that the said Security Guards are in the enjoyment of benefits, which are on the whole, more favourable to them than the benefits provided by the said Act or the Scheme made thereunder: And whereas, there are some agencies who do not intend to start business illegally have approached the State Government with a written undertaking that they will comply with all the terms and conditions which may be specified by Government from time to time in the Notification granting exemption to their Security Guards, if exemption is granted to them ; And whereas, the Government of Maharashtra, after consulting the Advisory Committee has formed an opinion that the Security Guards which have already been employed by such employer agencies are in the enjoyment of benefits, which are on the whole more favourable to them than the benefits provided by the said Act and the Maharashtra Private Security Guards (Regulation of Employment & Welfare) Scheme, 2002, (hereinafter referred t o as the “said scheme”). Now, therefore, in exercise of the powers conferred by Section 23 of the said Act, the Government of Maharashtra hereby exempts from the operations of all or any of the provisions of the Act and the Scheme, the Security Guards employed or to be employed by the employer agency specified in Sr. No.1 of the Schedule-1, appended herewith and deployed to the Principal Employer mentioned in Schedule-1 appended herewith for a period of three years from the date of application of this Notification in the Official Gazette subject to the condition as prescribed in Schedule-II. However, they should fulfill the conditions -5- W.P.Nos. 6749 & 4252 of 2009 mentioned in Schedule-II within a period of 3 months from the date of publication of this notification. Otherwise, the exemption given to the said security guards will stand automatically cancelled. In such cases, the Principal Employer who is engaging Security Guards of whose exemption is cancelled as above shall get himself registered with the Board as provided under clause 13 (1) (a) of the Scheme and also get registered the Security Guards with the Board whose exemption is cancelled and engaged those security guards for his establishment while registering such guards Board shall follow directions issued by the Government in respect of registration of the Guards.” 3.2 As pointed out earlier, this petition is confined only to the security guards employed with Respondent No.4 – principal employer. It is the grievance of the petitioner that in view of the Act of 1981, which is applicable in Brihanmumbai and Thane Districts, there is now no scope for granting exemption under Section 23 of the Act and as such the exemption is only a one time exemption which is to be considered at the initial stage at the time when the Act is made applicable and subsequently there is no provision to grant exemption under Section 23 of the Act. In the notification it was provided that the security guards employed or to be employed by the employer agency specified in serial No.1 of Schedule-I appended therewith and deployed to the principal employer mentioned in Schedule-1 appended therewith for a period of three years from the date of application of the notification. However, by a subsequent corrigendum dated 19th June, 2010, the words “or to be employed” have been deleted from the said notification dated 8th April, 2009. -6- W.P.Nos. 6749 & 4252 of 2009 4. Mr. Singhvi, learned Senior Counsel, appearing for the petitioner, submits that the exemption granted under Section 23 of the Act is only one time exemption at the time when the Act is made applicable in the concerned areas and subsequently there is no scope of applying the provisions of Section 23 of the Act. It is submitted by Mr. Singhvi that initially the provisions of the Act were made applicable to Brihanmumbai and Thane Districts. As and when the provisions of the Act are made applicable to other parts of Maharashtra, the said exemption provision can be invoked, but in areas where the Act is already operating the said exemption provisions cannot be invoked and otherwise it will frustrate the entire object of the Act and the scheme framed thereunder. It is further submitted by Mr. Singhvi that once the Act is made applicable, the employer agency has no role to play and the service conditions of the security guards are required to be governed under the provisions of the Act of 1981. It is further submitted by Mr. Singhvi that even otherwise to seek benefit under Section 23 of the Act, three conditions are required to be fulfilled viz. (i) the class or classes of security guards should be employed by the agency or agent; (ii) those security guards must be deployed by the concerned agency in a factory or establishment or in any class or classes of factories or establishments and (iii) in the opinion of the State Government, all such security guards or such class or classes of security guards are in the enjoyment of benefits which are on the whole not less favourable to such security guards than the benefits provided by or under the Act or any scheme framed thereunder. It is further submitted by -7- W.P.Nos. 6749 & 4252 of 2009 Mr. Singhvi that the concerned security guards, who have already been employed by such employer agencies, are in the enjoyment of benefits which are on the whole not less favourable to such security guards than the benefits provided by or under the Act or any scheme framed thereunder. Mr. Singhvi further submitted that after the Act has come into force, the principal employer is prohibited from taking private security guards from security agencies. The exemption could be asked only in respect of the security guards who, on the date of commencement of the Act in that particular area, were employed by the agency and deployed by the said agency in any factory or establishment and in the opinion of the State Government, those security guards were in the enjoyment of benefits which were on the whole not less favourable to such security guards than the benefits provided by or under the Act and the scheme framed thereunder. On the basis of the aforesaid submissions, Mr. Singhvi further submitted that looking to the provisions of the Act and the scheme framed thereunder, it is only a one time exercise for seeking exemption for private security guards who were employed by the agency and deployed by that agency in a factory or establishment and such exercise has to be done only at the time when the provisions of the Act are made applicable to different areas in the State. In order to substantiate his say, Mr. Singhvi has relied upon certain judgments of this Court and the Apex Court, to which reference will be made later on in this judgment. Alternatively Mr. Singhvi argued that assuming that Section 23 is applicable, there is no justification for issuing such exemption -8- W.P.Nos. 6749 & 4252 of 2009 notification in the instant case. 5. Ms. Bhende, learned Assistant Government Pleader, appearing for the first respondent-State and Mr. Rizvi, learned counsel appearing for respondent No.3, on the other hand, supported the exemption notification by submitting that it cannot be said that the exemption under Section 23 of the Act is applicable only at the initial stage when the Act is sought to be applied. 6. Mr. Rizvi has also submitted that after the enactment of the State Act, Central Act known as “The Private Security Agencies (Regulation), 2005 has been enacted. The Parliament, therefore, sought to cover the field relating to employment and deployment of private security guards by private security agencies and to regulate the recruitment and conditions of service or employment of private security guards employed by agencies. The Central Act prevailed over the State Act in so far as the security guards employed by the agency are concerned and in view of the same, the State Act has no application. It is further submitted that though it is no doubt true that a Division Bench of this Court in Writ Petition No. 1658 of 1999 (M/s. Alsecure and Protection Services (I) and Ors. vs. State of Maharashtra and another) decided on 14th August, 2009, has negatived such contention that in view of the enactment of the Central Act, the State Act has no application. The Special Leave Petition preferred against the said decision is pending, wherein certain interim orders have been passed by the Apex Court. In so far as application of Section 23 of -9- W.P.Nos. 6749 & 4252 of 2009 the Act is concerned, the learned counsel further submitted that it is a continuous process and it cannot be said that it is only one time provision in the Act. Mr. Rizvi further submitted that there is substantial amendment in the Act in the year 1996. According to him, if it was one time exemption, as contended by Mr. Singhvi, there was no reason to frame the scheme in the year 2002. It is further submitted by him that if the agency is totally abolished, then there was no question of referring to the agency in the said scheme. According to him, agency is not done away under the Act nor it is abolished. In the scheme there is a reference to the word “agency”. It is accordingly submitted that there is no substance in the contention of Mr. Singhvi that exemption is applicable only at the time when the Act is made applicable in a particular area and it is only one time exemption. Mr. Rizvi has also submitted that if submission of Mr. Singhvi is to be accepted that it is only one time exemption, then it will create difficulty in connection with those industries or factories which are established at the latter point of time. 7. Smt. Lata Desai, learned counsel appearing for respondent No.2 Board, has supported the contention of Mr. Singhvi that it should be held as a one time exemption at the time when the Act is made applicable. 8. So far as Writ Petition No. 4252 of 2009 is concerned, the same is filed by a Union registered under the Trade Unions Act, 1926. According to the -10- W.P.Nos. 6749 & 4252 of 2009 petitioner Union, under the provisions of the Scheme of 2002, every principal employer is required to be registered with the Board. The second respondent in the said writ petition is not registered with the Board. Respondent No.3 is a private contractor engaged in the business of supplying security guards to various establishments. It is prayed that since respondent No.2, principal employer is required to be registered with the security guards Board and since there is no such registration, appropriate direction may be issued directing respondent No.1 Board to register the security guards listed in Exhibit-A to the petition and to allot them to respondent No.2 establishment. It is further prayed for a direction to respondent No.2 to get itself registered with the Board. It is also prayed that appropriate penal action may be initiated against respondent No.2 as per clause 42 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare ) Scheme, 2002. 8.1. The said petition is resisted by the Board by filing a reply of Deepak Dattatraya Raikar, Secretary of the Security Guards Board for Greater Mumbai and Thane Districts. He has stated that the petitioner Union has merely lodged the so-called applications of security guards with the Board on 8th April, 2009, while the present writ petition seeking mandatory orders is filed in the same month. It is also averred that the security guards are required to submit certified records of attendance sheet/salary sheet and other details which show the period for which the concerned security guards are employed with the -11- W.P.Nos. 6749 & 4252 of 2009 principal employer and also to fulfill the conditions of educational qualifications and physical fitness. In the present case, the concerned security guards have not produced the certified records along with the applications and without completing the formalities, they have rushed to this Court by way of this petition. It is also further averred in the reply that the Board in consultation with the State Government issued an advertisement in Loksatta, a Marathi daily newspaper, inviting applications from the security guards, who wish to obtain registration with the Board. A challenge to the said decision was made by the petitioner union by way of writ petition No. 2122 of 2008 and another writ petition No. 1506 of 2008. Both the said writ petitions were disposed of by this Court on 27th January, 2009 by which certain directions were given. Pursuant thereto, respondent No.1 Board issued a fresh advertisement on 10th February, 2009 in Sakal, a Marathi newspaper, inviting applications from all security guards including the existing security guards, who are members of the petitioner Union, for registration with the Board. According to the deponent, the Board has received 16,000 applications from the security guards seeking registration with the Board and the Board is processing the applications diligently. It is accordingly prayed that this petition is without any substance and the same is required to be dismissed. 9. We have heard the learned counsel appearing for the parties at great length. We have also gone through the provisions of the Act and the -12- W.P.Nos. 6749 & 4252 of 2009 scheme framed thereunder and various case laws cited at the Bar. 10. The principal question which is required to be considered in Writ Petition No. 6749 of 2009 is as to whether the provisions of Section 23 of the Act which provides for exemption is only one time exemption i.e. At the time when the Act is made applicable to certain areas or the exemption can be made applicable at any point of time. In order to appreciate the aforesaid aspect, a reference is required to be made to Section 23 of the Act. The same reads thus :- “23. The State Government may, after consulting the Advisory Committee, by notification in the Official Gazette, and subject to such conditions and for such period as may be specified in the notification, exempt from the operation of all or any of the provisions of the Act or any Scheme made thereunder, all or any class or classes of Security Guards employed by the agency or agent as may be specified in the notification and deployed in any factory or establishment or in any class or classes of factories or establishment, if in the opinion of the State Government, all such Security Guards or such class or classes of Security Guards are in the enjoyment of benefits, which are on the whole not less favourable to such Security Guards than the benefits provided by or under this Act or any scheme made thereunder. Provided that the State Government, may, by notification in the Official Gazette, at any time, for reasons to be specified, rescind the aforesaid notification.” (emphasis supplied) So far as the words “by the agency or agent as may be specified in the notification and deployed” as concerned, the same are added subsequently by the amendment in the year 1996. -13- W.P.Nos. 6749 & 4252 of 2009 11. Sub-section (1) of Section 2 defines “agency” or “agent” as under: “agency” or “agent”, in relation to a security guard, means an individual or body of individuals or a body corporate, who or which employees security guards in his or its employment on wages and undertakes to execute any security work or watch ad ward work on contract, for any factory or establishment by engaging the security guards in his or its employment, but does not include a sub-agency or sub-agent or the Board.” Sub-section (1-a) of Section 2 defines “Advisory Committee” to mean a Committee constituted under Section 15 of the Act. Sub-section (8) defines “principal employer” which reads thus: “”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 Authorised Representative, Manager or by any other name prevailing in the factory or establishment” The aforesaid sub-section (8) was substituted in the year 1996. The security guard “ or “private security guard” is defined in sub-section (10) of Section 2 which reads thus: “Security Guard” or “Private Security Guard” means a person who is engaged through any agency or agent or Board to do security work or watch and ward work in any factory or establishment but does not include the members of any principal employer’s family or any person who is a direct employee of the principal employer.” -14- W.P.Nos. 6749 & 4252 of 2009 Considering the aforesaid provisions of the Act as well as the Scheme prevailing as on today, in our view, it is not possible to accept the contention of Mr. Singhvi that Section 23 of the Act is applicable only at the initial stage when the provisions of the Act are made applicable. In our view, till the security guard is registered with the Board, he can always consider as to whether he would like to be registered with the Board or seek exemption if he is working at an establishment where the service conditions are more favourable. In a given case, if he is paid better remuneration, there is no reason why he may not ask for exemption in such eventuality. However, once the security guard is registered and placed in common pool thereafter, there is no scope of application of Section 23 so far as such security guard or class of security guards are concerned. Till registration with the Board, in our view, the exemption can be given to a particular security guard or class of security guards in case, according to such security guard or security guards, the service condition wherein how they are deployed is better as compared to the service conditions which were available after registration with the Board. During the time when the exemption is in force, naturally such security guard may not get benefit of the provisions of the Act. However, at any point of time he can apply for registration with the Board after the exemption period is over. Once an exemption is granted, as aforesaid, the principal employer cannot ask for services of the security guard from the pool. In any case, if such provision is not available to any industry or factory -15- W.P.Nos. 6749 & 4252 of 2009 established after 1981, it may create a hurdle for any security guard employed or deployed with such an industry or factory, if he desires to ask for exemption. It is not possible to believe that application of Section 23 is only at the initial stage when the Act is made applicable in a particular area and thereafter it has no application. 13. Reading of Section 23 of the Act, which is prevailing as on today after the amendment in 1996, it clearly provides that the State Government may exempt from the operation of all or any of the provisions of the Act or any scheme made thereunder, all or any class or classes of security guards employed by the agency or agent as may be specified in the notification and deployed in any factory or establishment. A plain reading of the aforesaid Section hardly leaves any doubt that the security guard employed by the agency or agent as may be specified in the notification and who are deployed in any factory or establishment or any class or classes of security guards employed by