Security Association & Ors vs Union Of India & Ors

As the present appeals challenge the validity of a State Act in light of a Central Act, the legislative history of the same has to be examined in the light of the current facts. The State Act which came into force on June 29, 1981 received the Presidential assent envisaged under Article 200 of the Constitution of India on September 24, 1981. Under the said Act, the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981 (hereinafter referred to as ‘Scheme of 1981’) was put into place. The constitutional validity of the State Act was challenged before the Bombay High Court in M/s Tradesvel Security Services vs. State of Maharashtra[1] and the High Court vide its order dated November 2, 1982 upheld the Act on the ground of it being a complete Code and allowed exemptions under Section 23 at initial stage only. The matters came before this Court as special leave petitions which were dismissed in 1983 and the Scheme of 1981 was stayed with a direction to the State Government to dispose of all the applications for exemptions and the same order was subsequently modified directing that the scheme be brought into force.

The State Government duly considered and rejected all the applications and twenty five writ petitions were filed before the High Court challenging the rejection by the State Government. These writs were dismissed and the Division Bench while disposing of the appeals arising therefrom, vide order dated July 11, 1985 stated that the applications were rejected as a result of a policy decision not to grant exemption and the same is incorrect, therefore it was directed that the exemption applications be considered afresh on a case by case basis. Against the same, the Security Guards Board constituted under Section 6 of the State Act, filed special leave petitions before this Court. The said special leave petitions were disposed of in term of the order passed by this Court on April 28, 1987 in Security Guards Board for Greater Bombay and Thane District vs. Security & Personnel Services Pvt. Ltd. & Ors.[2], holding that the State Act being a welfare statute is enacted to prevent exploitation, that exemption is not for any security guard but security guards working in factories or establishments and the like and that agencies can also apply for the same.

Appellant No.1 in this appeal is an Association of private security agencies (hereinafter referred to as the “Appellant Association”) whose members are engaged in the business of employing training, outfitting and equipping security guards and thereafter providing and/or supplying exempted security guards to their clients/principal employers. Appellant No.2 is a member of the Appellant Association.

Prior to January, 1997, some members of the Appellant Association on application had obtained an exemption under Section 23 of the State Act read with the Scheme of 1981 vide a common Notification dated January 22, 1997 and amended by Notification dated March 1, 1999. It has been claimed that the agencies named in the Notification had sought renewal of exmeptions and that respondent No.6 being the State of Maharashtra (hereinafter referred to as “respondent State”) failed and neglected to renew the said Notification, which led to the filing of several writ petitions. Pursuant to the orders of the High Court, the members of the Appellant Association continued to carry out their business.

The Parliament enacted the ‘The Private Security Agencies (Regulation) Act, 2005’ (hereinafter referred to as the “Central Act”) which came into force on March 14, 2006. Under the provisions of the Central Act, the State of Maharashtra along with other States were required to appoint the Controlling Authority as contemplated under Section 3 thereof and frame rules as contemplated under Section 25 of the Central Act. However, it has been stated that the respondent State failed to appoint any Controlling Authority or frame rules, as a result of which the members of the Appellant Association could not obtain the requisite licences under the Central Act. Some of the members of the Appellant Association, therefore, filed a writ petition before the High Court in September, 2006, inter alia, praying for a direction to the respondent State for appointing forthwith the Controlling Authority and framing the rules. Writ Petition No.2633 of 2006 along with some other writ petitions were disposed by the High Court as the writ petitioners did not press the same when they learnt that the respondent State was in the process of complying with the Central Act.

On February 23, 2007, the State of Maharashtra designated the Principal Secretary (Special), Home Department, Government of Maharashtra (respondent No.2 herein) as the Controlling Authority and his powers and functions were delegated to respondent Nos.3 to 5. By Notification dated 14th March, 2007, the State of Maharashtra framed “The Maharashtra Private Security Agencies (Regulation) Rules, 2007”. Thereafter, the members of the Appellant Association made applications for issue of licences under Section 7 of the Central Act so as to enable them to carry on their business of security agency but the same were not issued by the authorities concerned. The Security Guards Board for Greater Mumbai and Thane District (hereinafter referred to as “the Board”) started threatening the principal employers with prosecution under the State Act unless the principal employers get themselves registered with the Board and engage security guards of the Board. The members of the Appellant Association and their clients/principal employers started receiving show cause notices for prosecuting them.

For the reasons stated hereinabove, we do not find any merit in these appeals. Hence, the appeals are dismissed. Consequently, the contempt petitions are also disposed of accordingly. There will be no order as to costs.