Case: Security Association  Vs. Union Of India


Decision reasoning: 1[ds]44. Article 246 of the Constitution does not provide for the competence of Parliament or the State Legislatures as commonly perceived but merely provides for their respective fields. Article 246 only empowers the Parliament to legislate on the entries mentioned in List-I and List-III of the Seventh Schedule and that in case of a conflict between a State Law and a Parliamentary Law under the entries mentioned in List-III, the Parliamentary law will prevail. It does not follow that the Parliament has a blanket power to legislate on entries mentioned in List-II as well. Thus, the argument of the appellants that the Parliament has supreme right to legislate over any area as per Article 246(1) is misplaced. Furthermore, this Court in Welfare Association, A.R.P., Maharashtra & Anr. vs. Ranjit P. Gohil & Ors. ((2003) 9 SCC 358 ) also held that:The fountain source of legislative power exercised by Parliament or the State Legislatures is not Schedule 7; the fountain source is Article 246 and other provisions of the Constitution. The function of the three lists in the Seventh Schedule is merely to demarcate legislative fields between Parliament and States and not to confer any legislative powerThus, Section 13(1)(j) of the Central Act which requires compliance with the Central Labour laws as a condition to ensure the validity of the licence obtained under the Act is a provision incidental to the purpose of the ActThe statement of object of the State Act clearly indicates that the State Act seeks to regulate the employment of Private Security Guards employed in factories and establishment in the State of Maharashtra and seeks to ensure better terms and conditions of employment of such guards through the establishment of a Board50. It is evident from the above that the subject matters of the two Acts are substantially different and the conflict in the operation of the two Acts is incidental. Furthermore, after comparing the provisions of both the Acts, that both the Acts operate in different fields and that there is only incidental connection between the two regarding the regulation of private security agencies, wherein Section 23 of the State Act exempts private security guards for the operation of business of private security agencies after ensuring that such exempted guards enjoy benefits, either equal or better than those provided by the State Act. Therefore, the High Court has correctly held that:25. It is clear that this group of petitions have been filed after the enactment of the Central Act to claim that in view of the enactment of the Central Act, the State Act has lost its efficacy in relation to the security agencies. Perusal of the preamble of the State Act shows; that the purpose; for which that Act has been enacted is - regulating the employment of security guards employed in factory and establishment in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare through the establishment of a board there for. It is thus clear that the State Act is a labour Legislation enacted by the State Legislature for making better provisions for the terms and conditions of employment of the private security guards and their welfare. The Legislation, therefore, is referable to Entry 24 in List III (Concurrent List) in the Seventh Schedule of the Constitution of India. The entry reads as under:24. Welfare of labour including conditions of work, provident funds, employers liability, workmens compensation, invalidity and old age pensions and maternity benefitsWe have, thus, no doubt, in our mind that the State Act is a Labour Legislation, which the State Government is competent to enact because of Entry 24 found in List III of Seventh Schedule of Constitution. So far as the Central Act is concerned, its preamble shows that the Act has been enacted by the Parliament - for the regulation of the Private Security Agencies and for matters connected therewith and incidental thereto. The subject matter of the State Act is private security guards who may be engaged by the principal employer either through the Board or through the security agencies. The subject matter of the Central Legislation is not the private security guards, but private security agencies. Thus, the subject of two Legislations is different. Perusal of the Central Act shows that it makes an endeavour to regulate the establishment and working of private security agencies. Section 4 lays down that no person shall carry on and commence the business of security agency unless he holds a licence issued under this Act. Section 5 of the Central Act lays down as to who are eligible for licence. From the scheme of the Central Act, it is thus clear that it regulates the business of private security agencies by making it obligatory on them to secure licence under the Central Act before commencing their business. The provisions found in the Central Act dealing with the eligibility of the security guards are incidental to the subject of legislation namely business of private security agency. The condition of service and welfare of the security guards is not the subject matter of Legislation in the Central Act. In list I or List III of the Seventh Schedule there does not appear to be any entry in relation to the regulation of business of security agency. Therefore, the Central Legislation may be relatable to residuary Entry 97 In List I. Perusal of the provisions of the State Act shows that it does not make any attempt to regulate the business of private security agency51. The other test to determine the issue of repugnancy is the doctrine of occupied field which stipulates that even where the Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the State Act. The question of repugnancy arises only when the law made by the Parliament and the State Legislature occupy the same field. (See: Deep Chand vs. State of Uttar Pradesh & Ors. (supra), , Hoechst Pharamaceuticals Ltd & Ors. vs. State of Bihar & Ors. (supra))Furthermore this Court in M. Karunanidhi vs. Union of India & Anr. (supra) held that:24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:1. That there is a clear and direct inconsistency between the Central Act and the State Act2. That such an inconsistency is absolutely irreconcilable3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the otherThe above was also upheld by this Court in the case of Government of Andhra Pradesh & Anr. vs. J.B. Educational Society & Anr. (supra)52. In the present case, after perusing the two Acts in entirety, we find that two statutes occupy different fields as stated earlier. The Central Act aims to regulate the business of private security agencies and Section 13(1)(j) of the Central Act which reads as under, does not turn the Central Act into a labour welfare statute as the same is an incidental provisionTherefore, we are of the opinion that the two statutes occupy distinct fields53. The appellants have also challenged the State Act to be violative of Articles 14 and 19 of the Constitution. However, we find that the same does not hold good as the restrictions imposed by the State Act are reasonable restrictions envisioned by the Constitution and that they protect the rights and ensure the welfare of private security guards engaged by private security agencies by means of Section 23 and relevant provisions of the Scheme of 2002. Furthermore, the High Court in the Tradesvel Case (supra) while answering the same question and considering the situation of the private security guards held the State Act is not to be in violation of Articles 14 and 19 or any other Fundamental Rights contained in the Constitution. Therefore, we accept the arguments put forth by Mr. Venugopal in this regard54. The other impediment which tried to be pointed out by the learned senior counsel appearing on behalf of the appellant in respect of Section 23 of the State Act that it compels all the security guards employed by the agencies and deployed with various principal employers to seek exemption is totally misconceived because it would bring about total stoppage of the agencys business. After analyzing Section 23 of the said Act, it appears to us that exemption can be granted to a class or classes of Security Guards, employed by agencies and deployed with the principal employer and who are in the enjoyment of benefits which are on the whole not less favourable to such security Guards than the benefits provided for or under this Act or any Scheme made thereunder. We have noticed that the High Court has duly taken care of that and considered the said scheme and pointed out that to seek the benefit of exemption under Section 23, three conditions are necessary. Firstly, the class or classes of Security Guards should be employed by the agency or agent. Secondly, those Guards must be deployed by the concerned agency in a factory or establishment or in any class or classes of factories or establishments and thirdly, in the opinion of the State Government, all such Security Guards or such class or classes of Security Guards at the time of seeking exemption 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. Now, since after the enactment of the State Act, the principal employer was prohibited from taking private Security Guards from Security Agencies, the exemption could be asked only in respect of private Security Guards who satisfied the aforementioned three conditions. Thus, it was only a one time exercise for seeking exemption for private Security Guards who were employed by the agency and deployed by that agency in factory or establishment. That exercise could be repeated as and when the provisions of the Security Guards Act are made applicable to different areas of the State on different dates as provided under Sub-section (3) of Section 1 of the Security Guards Act