Full Judgment Text
2016:BHC-AS:30586-DB
Shridhar Sutar 1 WP-7640-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7640 OF 2015
The Security Association of India … Petitioner
Versus
Union of India and others … Respondents
…..
Mr. K. P. Anilkumar, Advocate for petitioner
Mr. Sandesh Patil for respondent No.1
Ms. S. S. Bhende, AGP for respondent No.2
Mr. P. M. Palshikar for respondent No.3
…..
CORAM: DR. MANJULA CHELLUR, C.J.
AND M.S.SONAK, J.
DATE : 13 DECEMBER 2016
P.C.:
1. The petitioner, which claims to be an association of security
agencies, seeks declaration that the following provisions are ultra
vires Articles 14, 19 and 21 of the Constitution of India;
(i) Section 13(1)(k) of the Private Security Agencies
(Regulation) Act, 2005, (said Act).
(ii) Clauses 4(7) and 4(9) of the Private Security Agencies
Central Model Rules, 2006.
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(iii) Clause 4 of the Maharashtra Private Security Agencies
(Regulation) Rules, 2007 including in particular sub
clauses (1) and (7) thereof.
2. The Private Security Agencies (Regulation) Act, 2005 is the
Central legislation to provide for the regulation of private security
agencies and for matters connected therewith or incidental
thereto. Section 3 of the said Act requires the State Government,
by notification, to designate an officer not below the rank of a
Joint Secretary in the Home Department of the State or an
equivalent officer to be the controlling authority for the purposes
of the said Act. Section 4 of the said Act provides that no person
shall carry on or commence the business of private security
agency, unless he holds a licence issued under the said Act.
Section 6 prescribes the prerequisites a person must possess,
before, he is considered for issue of a licence under the said Act.
Section 7 prescribes the procedure to apply for licence under the
said Act. Section 8 is concerned with renewal of licence.
3. Section 9 of the said Act provides that every private security
agency shall, within six months of obtaining the licence,
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commence its activities. Such private security agency is also
required to ensure imparting of such training and skills to its
private security guards and supervisors as may be prescribed.
There is obligation to employ such number of supervisors as may
be prescribed. Section 10 of the said Act prescribes the
prerequisites in the matter of employment or engagement of
private security guards. Subsection (2) of Section 10 bars the
employment or engagement of any person as a private security
guard or supervisor who has been convicted by a competent court
or who has been dismissed or removed on grounds of misconduct
or moral turpitude while serving in any of the armed forces of the
Union, State Police Organizations, Central or State Governments
or in any private security agency.
4. Section 11 of the said Act empowers the State Government
to frame rules to prescribe the conditions on which licence shall be
granted under the said Act and such conditions shall include
requirements as to the training which the licensee is to undergo,
details of the person or persons forming the agency, obligation as
to the information to be provided from time to time to the
Controlling Authority regarding any change of their address,
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change of management and also about any criminal charge made
against them in the course of their performance of duties of the
private security agency or as the case may be, a private security
guard employed or engaged by them. The State Government may
also make provision in the rules to verify about imparting of
required training by the private security agency and to review
continuation or otherwise of licence of such private security
agency which may not have adhered to the condition of ensuring
the required training.
5. Section 13 of the said Act empowers the Controlling
Authority to cancel any licence on one or more of the grounds
specifying subclauses (a) to (l). Since, the challenge in this
petition is to the provision contained in Section 13(1)(k), said
provision is transcribed below for convenience of reference.
“13.(1) The Controlling Authority may cancel any licence on
any one or more of the following grounds, namely :
….......
….......
….......
(k) that there have been repeated instances when the private
security guard or guards provided by the private security
agency
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(i) failed to provide private security or were guilty of
gross negligence in not providing such security;
(ii) committed a breach of trust or misappropriated
the property or a part thereof which they were
supposed to protect;
(iii) were found habitually drunk or indisciplined;
(iv) were found to be involved in committing crimes;
or
(v) had connived or abetted a crime against the
person or property placed under their charge; or
….......
(2)Where the Controlling Authority, for reasons to be recorded
in writing, is satisfied that pending the question of
cancelling of licence on any of the grounds mentioned in
subsection (l), it is necessary to do so, that Controlling
Authority may, by order in writing, suspend the operation
of the licence for such period not exceeding thirty days as
may be specified in the order and require the licence holder
to show cause, within fifteen days from the date of issue of
such order, as to why the suspension of the licence should
not be extended till the determination of the question of
cancellation.
(3)Every order of suspending or cancelling of a licence shall be
in writing and shall specify the reasons for such
suspension or cancellation and a copy thereof shall be
communicated to the person affected.
(4)No order of cancellation of licence under subsection (l)
shall be made unless the person concerned has been given a
reasonable opportunity of being heard ”.
[Emphasis supplied].
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6. Section 14 of the said Act provides that any person
aggrieved by an order of the Controlling Authority suspending or
canceling the licence under Section 13 of the said Act may prefer
an appeal to the Home Secretary of the State Government within
sixty days of the date of such order. The proviso empowers the
State Government to enlarge the time if sufficient cause is shown
for not preferring the appeal within the prescribed period. The
State Government is obliged to afford the appellant reasonable
opportunity of being heard in the matter.
7. Section 24 of the said Act empowers the Central
Government to frame model rules in respect of all or any of the
matters with respect to which the State Government may make
rules under the said Act and where any such model rules have
been framed the State Government shall, while making any rules
in respect of that matter under section 25 of the said Act so far as
is practicable, conform to such model rules.
8. Section 25 of the said Act empowers the State Government
by notification, to make rules for carrying out the provisions of
this Act. Subsection (2) of Section 25, in particular, and without
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prejudice to the generality of such power prescribes the matters,
which such rules may provide.
9. In exercise of powers conferred by Section 24 of the said
Act, the Central Government vide Notification S.O. No. 617 (E)
has made the Private Security Agencies Central Model Rules,
th
2006, which came into force from 26 April, 2006. Amongst
other matters, Rule 4 of such model rules prescribes for the
verification of character and antecedents of the private security
guards and supervisors before they are employed or engaged by
any private security agency. Although, the challenge in this
petition is restricted to subrules (7) and (9), it will be appropriate
to transcribe the entire Rule 4 of the model rules for convenience
of reference.
“ 4. Verification of character and antecedents of the
private security guard and supervisor;
(1) Before any person is employed or engaged as a
security guard or supervisor, the Agency shall
satisfy itself about the character and
antecedents of such person in any one or more
of the following manner:
(a) by verifying the character and antecedents
of the person by itself;
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(b) by relying upon the character and
antecedent verification certificate
produced by the person:
Provided that the character and antecedent
certificate shall be valid and the Agency does
not have any adverse report regarding the
person's character and antecedents from any
other source; as prescribed hereinunder,
produced by the person provided it is valid and
the Agency does not have any adverse report
regarding the person's character and
antecedents from any other source;
(c) by relying on the report received from the
police authorities signed under the
authority of the District Superintendent of
Police or an officer of the equivalent or
higher rank.
(2) The person desirous of getting employed or engaged
as security guard or supervisor shall submit Form II
to the Agency. If the person has stayed in more than
one District during the last five years, the number of
forms will be as many as Districts.
(3) The Agency shall cause an inquiry into the
correctness of the particulars filled in either by itself
or by sending the form to the respective District
Superintendent of Police.
(4) The State Government may prescribe the form and
the manner in which the fee is to be deposited for
the service of character and antecedent verification
by police.
(5) The police will establish identity of the individual
and verify the character and antecedents of the
person by making a visit to the locality where the
person claims to have resided or residing and
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ascertain his identity and reputation from the
respectable residents of the locality. They will also
consult the police station record of the concerned
police station and other records at the District Police
Headquarter before preparing the character and
antecedents verification report. This report will
contain the comments of the police on every claim
of the person in character and antecedents Form
and also a general report about his activities
including means of livelihood in the period of
verification. The police will specifically state if there
is a criminal case registered against the person at
any point of time or if he has ever been convicted of
criminal offence punishable with imprisonment.
(6) The police will specifically comment if the engaging
or employing the person under verification by the
Private Security Agency will pose a threat to
National Security.
(7) The police authorities shall ensure that
character and antecedent verification report is
issued within ninety days of the receipt of the
character and antecedent form.
(8) The report of the police regarding character and
antecedents of a person will be graded as
confidential. It will be addressed in named cover to
a designated officer of the Security Agency
requesting for character and antecedents.
(9) Character and antecedents verification report
once issued will remain valid for three years.
(10) On the basis of police verification and on the basis
of their own verification, the Agency shall issue in
Form III a character certificate and this certificate
will not be taken back by such Agency even if the
person ceases to be the employee of that Agency”.
[Emphasis supplied].
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10. The State Government, in exercise of powers conferred by
section 25 of the said Act vide Notification No. PSA.1006/CR
th
501/Special4 dated 14 March, 2007 has made the Maharashtra
Private Security Agencies (Regulation) Rules, 2007. Amongst
other matters, Rule 4 provides for verification of character and
antecedents of a person before he is employeed or engaged as a
security guard or a supervisor by private security agency.
Although, the prayer clause (a) of the petition refers to subrules
(1) and (7) from the averments in the petition, it appears that the
petitioner seeks to challenge subrules (1) and (9) of Rule 4. In
any case, for convenience of reference, entire Rule 4 is prescribed
below.
“ 4. Verification of character and antecedents of the
private security guard and supervisor
(1)Before any person is employed or engaged as a security
guard or supervisor, the Agency shall satisfy itself
about the good character and antecedents of such
person in any one or more of the following manner:
(a) by verifying the character and antecedents of the
person from the police authorities by itself;
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(b) by relying on the report received from the police
authorities signed under the authority of the
District Superintendent of Police or Deputy
Commissioner of Police incharge of the Zone or
an officer of the equivalent or higher rank.
(2) The person desirous of getting employed or engaged as
security guard or supervisor shall submit Form II to
the Agency. If the person has stayed in more than one
District during the last five years, the number of forms
will be as many as District.
(3) The Agency shall cause an inquiry into the correctness
of the particulars filled in either by itself or by sending
the form to the respective District Superintendent of
Police or Deputy Commissioner of Police in charge of
the Zone.
(4) The State Government may specify by order, form the
amount and the manner in which the fee is to be
deposited for the service of character and antecedent
verification by police.
(5) The police will establish identity of the individual and
verify the character and antecedent of the person by
making a visit to the locality where the person claims
to have resided or residing and ascertain his identity
and reputation from the respectable residents of the
locality. They will also consult the police station
record of the concerned police station and other
records at the District Police Headquarters before
preparing the character and antecedents verification
report. This report will contain the comments of the
police on every claim of the person, in character and
antecedent and also a general report about his
activities, including means of livelihood in the period
of verification. The police will specifically state if there
is a criminal case registered against the person at any
point of time or if he has ever been convicted of
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criminal offence punishable with imprisonment.
(6) The police shall specifically comment if the engaging
or employing the person under verification by the
Agency poses a threat to national security.
(7) The police authorities shall ensure that character
and antecedent verification report is issued within
ninety days of the receipt of the character and
antecedent form.
(8) The report of the police regarding character and
antecedents of a person will be graded as confidential.
It will be addressed in named cover to a designated
officer of the Agency, requesting for character and
antecedents.
(9) Character and antecedents verification report
once issued will remain valid for three years.
(10)On the basis of police verification and on the basis of
their own verification, the Agency shall issue in Form
III a character certificate and this certificate shall not
be taken back by such Agency, even if the person
ceases to be the employee of that Agency. ”
[Emphasis supplied].
11. Since, the petitioner also alleges that Rule 4 of the
Maharashtra Private Security Agencies (Regulation) Rules, 2007
violates Section 24 of the said Act, the said section is transcribed
below for convenience of reference.
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“ 24. The Central Government may frame model rules in
respect of all or any of the matters with respect to which the
State Government may make rules under this Act and where
any such model rules have been framed the State Government
shall, while making any rules in respect of that matter under
section 25, so far as is practicable, conform to such model
rules ”.
12. Mr. K. P. Anilkumar, learned counsel for the petitioner
submits that the provisions in respect of which declarations of
unconstitutionality have been applied for are arbitrary and violate
Article 14 of the Constitution of India. In any case, learned
counsel submits that such provisions impose unreasonable
restrictions unprotected by Article 19(6) and therefore, such
provisions infringe the fundamental right of the petitioner
guaranteed by Article 19(1)(g) of the Constitution of India to
carry on occupation, trade or business.
13. Mr. Anilkumar submits the provision in Section 13(1)(k),
which entitles the controlling authority to cancel the licence of
private security agency, basically, for the faults on the part of the
security guards provided by the security agencies is patently
arbitrary. He submits that such a provision is akin to cancelling the
licence of a factory to operate for the fault of its employee or
agent. He submits that such a provision is extremely harsh and
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imposes a disproportionate burden upon the private security
agency. He submits that there are instances where licenses have
been cancelled even for a single default on the part of the security
guard, and such cancellation is invariably without even minimum
compliance with principles of natural justice. Mr. Anilkumar,
accordingly, submits that the provision in Section 13(1)(k) of the
said Act is liable to be declared as ultra vires articles 14 and 19 of
the Constitution of India.
14. By reference to the 2006 model rules framed by the Central
Government, and the 2007 rules framed by the State Government,
Mr. Anilkumar submits the requirement of securing verification of
character and antecedents of persons before they are employed or
engaged as security guards or supervisors by any private security
agency, is arbitrary and in the nature of an unreasonable
restriction, unprotected by Article 19(6) of the Constitution of
India. He submits that the security agencies, mostly engage ex
servicemen or members or persons who have served in the Police
force or as Home Guards. To require the verification of character
and antecedents of such persons, which is quite a time consuming
process, is unnecessary and constitutes an unreasonable restriction
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upon the fundamental rights of the persons carrying on the
occupation or business as private security agencies. He submits
that in any case, once the character and antecedents verification
report is issued by the competent authority, there is no reason for
prescribing validity period of three years in respect of such report,
unless there is any material on record to suggest that some crime
is reported against some particular security guard during such
period of three years.
15. Learned counsel further submits that a time limit of ninety
days granted to the authorities to issue the character and
antecedent verification report is too long and the same ought to
be reduced to thirty days, if such provision is to be regarded as a
reasonable restriction. He further submits that it is necessary to
direct that in case, the police authorities fail to complete the
verification process within thirty days from the date of receipt of
application, then, such verification report should be deemed as
granted. This, he submits, is necessary in order to save the
provisions from the charge of unconstitutionality.
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16. Learned counsel further submits that the condition in the
State rules to the effect that security guard should have minimum
five years stay in a particular place for seeking character and
antecedent certificate is also ultra vires the rights of the petitioner
and its members, apart from being ultra vires the provisions of the
said act, model rules and the State rules.
17. Mr. Sandesh Patil, who appears for the Union of India, Ms. S.
S. Bhende, learned AGP for the State of Maharashtra and Mr. P. M.
Palshikar, learned counsel for respondent No.3 have opposed the
submissions made by Mr. Anilkumar and submitted that the
impugned provisions are neither arbitrary nor do they impose any
unreasonable restrictions upon the petitioner or its members. They
submit that the petitioner, which, in all probabilities is an
unregistered association, can hardly be regarded as a citizen of
India, for it to claim any fundamental right under Article 19(1)(g)
of the Constitution of India. In any case, they submit that the
impugned provisions are regulatory in nature and the restrictions
imposed, are perfectly reasonable. They submit that the
restrictions are well protected under Article 19(6) of the
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Constitution of India. They submit that the petitioner has not
adverted any concrete instances of cancellation of licence or
unreasonable delays in the matter of issuance of character and
antecedent reports. In any case, they submit that individual
instances of dereliction are not grounds sufficient for striking
down the impugned legislative provisions and it is always open to
the persons aggrieved to challenge such instances before the
appropriate authority and in the appropriate manner. For all these
reasons, the learned counsel submit that the present petition be
dismissed with costs.
18. The rival contentions now fall for our determination.
19. The relevant provisions of the said Act, the 2006 model rules
framed by the Central Government and the 2007 Rules framed by
the State Government have already been adverted to. As noted
earlier, the said act and the rules made thereunder seek to
regulate private security agencies and provide for matters
connected therewith or incidental thereto. There is no challenge
to the said Act or the rules made thereunder on the basis of
legislative competence.
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20. The said Act provides for the designation of a controlling
authority in order to ensure due compliances to the provisions of
the said Act and the rules made thereunder. Section 13(1)
empowers such controlling authority to cancel the licences issued
to any private security agency, where, there have been repeated
instances when the private security guard or the guards provided
by the private security agency failed to provide private security or
were guilty of gross negligence in not providing security; or where
such security guards commit a breach of trust or misappropriate
the property or a part thereof which they were supposed to
protect; where they are found to be habitually drunk or
indisciplined; where they are found to be involved in committing
crimes; or have connived or abetted a crime against the person or
property placed under their charge.
21. There is no merit in the contention of Mr. Anilkumar, that
the provision contained in Section 13(1)(k) is arbitrary, because,
the provision enables the controlling authority to cancel the
licence of security agency, even where a single incident of
misconduct by a security guard is noticed. Section 13(1)(k) itself
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provides that the power of cancellation can be exercised when
“ repeated instances ” as prescribed in subclauses (i) to (v) are
found to exist. The use of the expression “ repeated instances ”, is
itself a safeguard provided to private security agencies and
therefore, it cannot be said the provision contained in Section
13(1)(k) is either arbitrary or that, the same imposes any
unreasonable restriction, which is alien to the purposes set out in
Section 19(6) of the Constitution of India.
22. In a situation, where the security guards provided by the
security agency, repeatedly fail to provide for security or are
grossly negligent in providing security or commit breach of trust
or misappropriation or are found to be habitually drunk or
indisciplined or are found involved in committing crimes or
connive or abet a crime against the person or property placed
under their charge, then, such security agency can be required to
assume the responsibility for the acts of such security guards
provided by them. There is nothing arbitrary or unreasonable in
making a provision of this nature taking into consideration the
nature of duties which security guards are required to discharge
and the standard of care which is expected of a private security
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agency, which provides for such security guards. Restriction, in the
present case, is undoubtedly reasonable and further, the same is in
the interest of the general public.
23. In order to determine the reasonableness of restriction, the
regard must be had to the nature of the business, which in the
present case, is providing of security guards, who are very often
left to guard the person and property of those who engage their
services. The reasonableness of restriction is to determined in an
objective manner and from the standpoint of the interests of the
general public and not from the standpoint of the interests of
person upon whom the restrictions have been imposed or upon
any abstract consideration.
24. Mr. Anilkumar's submission that licencee are cancelled by
the controlling authority even where a single instance of
misconduct on the part of the security guard is noticed or that the
cancellation of such licences is invariably without compliance with
principles of natural justice, deserves no acceptance. In the
petition, no specific instances of this nature have been cited. As
noted earlier, Section 13(3) of the said Act mandates the record of
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reasons by the controlling authority for either suspension or
cancellation of a licence. Section 13(4) of the said Act, in terms
provides that the order of cancellation has to be preceded by
afford of reasonable opportunity of being heard. This means that
the principles of natural justice and fair plea have been statutorily
structured in section 13 of the said Act. Restriction cannot be held
to be unreasonable, merely because in a given case it may operate
harshly. Further in determining whether a restriction is
unreasonable, the nature of the right alleged to have been
infringed, underlying purpose of the restriction imposed, the
proportionality of the restriction are some of the aspects which
have to be taken into consideration. The circumstances like
provision of appeal or the requirement to comply with principles
of natural justice before adverse action is initiated, are also
matters relevant for determining the reasonability of the provision
concerned. Parbhani Transport Cooperative Society Ltd. Vs.
The Regional Transport Authority, Aurangabad and others AIR
1960 S.C.(801) and Union of India and another Vs.
International Trading Co. and another 2003 (5) SCC 437.
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25. In the present case, apart from the reference to “repeated
instances”, in section 13(1)(k), section 13(3) of the said Act
requires the controlling authority to make an order or suspension
or cancellation of licence in writing and specify the reasons
therefore. Such order is required to be communicated to the
person affected. Section 13(4) provides that no order of
cancellation of licence under subsection (1) of Section 13 shall be
made unless the person has been given reasonable opportunity of
being heard. Section 14 provides for appeal to the Home Secretary
against the order of cancellation. Subsection 3 of Section 14
again in terms provides that before disposing of appeal the State
Government shall give the appellant reasonable opportunity of
being heard.
26. There are no individual instances cited by the petitioner to
demonstrate that the provision impugned, operates harshly. In any
case, individual instances of such nature, if any, can always be
corrected in appeal. Such individual instances, if any, are by no
means sufficient grounds to declare the provisions of Section
13(1)(k) of the said Act as unconstitutional or ultra vires. The
appellate authority is also required to afford opportunity of
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hearing before disposal of appeal against the cancellation. All
these factors are relevant to hold that the provision contained in
Section 13(1)(k) of the said Act is quite reasonable and there is no
merit in the contention that such provision violates Article 14 or
Article 19(1)(g) of the Constitution of India.
27. Insofar as the challenge to Rule 4 of the Central Model Rules
or the State Rules is concerned, we note that such rules require
the security agency to obtain certificate of verification of character
and antecedents of the person whom they propose to employ as
security guards or supervisors. The circumstance that some of the
members of the petitioner association employ or engage only ex
servicemen or persons earlier employed in the police force, is
quite besides the point. If the provisions of the said Act are
perused in their entirety, it is seen that there is no bar upon
security agencie's employing or engaging persons other than
exservicemen or exemployees of police force, as long as such
persons fulfill the requirements set out in Section 10 of the said
Act or such other requirements as may be prescribed. The rules,
which mandate the obtaining of certificate of verification of
character and antecedents, applies uniformly to all private security
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agencies and there is really nothing arbitrary or unreasonable with
regard to such a requirement. In fact, we are of the opinion that
such a provision is undoubtedly in the interest of the members of
the general public and to some extent, also in the interest of
private security agencies themselves.
28. The private security agencies who engage only
exservicemen or persons who have served in the police force or in
the home guards as security guards or supervisors, will
presumably have no serious difficulties in obtaining character and
antecedents certificates. However, it must be noted that there can
be no universal presumptions in this regard since, it cannot be
said with certainty that such exservicemen or exemployees of the
police force or home guards will invariably have good character or
antecedents, so as to render verification futile or unnecessary.
29. The submissions that, period of ninety days specified in Sub
Rule 7 of Rule 4 in the matter of issuance of character and
antecedent verification report ought to be reduced to thirty days
or that a provision should be made for grant of deemed
verification report, are quite misconceived. It is not within the
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province of this court in the exercise of its power of judicial review
to rewrite a statute. As long as the statute as it stands, is not in
violation of part III of the Constitution or otherwise beyond the
legislative competence, there is no question of striking down such
statute, on the basis of any hypothetical and unsubstantiated
apprehensions expressed by the petitioner.
30. There is a presumption of constitutionality and matters such
as prescription of qualification of safeguards are basically matters
of legislative policy, which cannot be interfered with in the
exercise of powers of judicial review, unless, it is established that
same are arbitrary or unreasonable. The same applies to the
prescription of time schedules within which applications seeking
character and antecedent verification reports must be disposed of.
In exercise of powers of judicial review, it is not within the
province of this court to either rewrite the statute or to create any
legislative fiction, by way of deemed permission, where there is
failure to dispose of the application within the prescribed period.
Accordingly, we find no merit in the challenge to the rules.
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31. There is no inconsistency between 2006 Model Rules and
the 2007 State Rules if the provisions containing Rule 4 of the
either rules are perused and analysed. Besides, Section 24 merely
prescribes the State Government, while making any rules under
section 25 shall, so far as is practicable , confirm to such model rules
made by the Central Government under section 24 of the said Act.
Accordingly, there is no merit in the challenge to the State Rules
on the ground that they violate Section 24 of the said Act.
32. In the case of Messrs Tradesvel Security Services Pvt. Ltd.
Vs. State of Maharashtra – 1982 (84) Bombay Law Reporter –
608 , the constitutional validity of the Maharashtra Private
Security Guards (Regulation of Employment and Welfare) Act,
1981 and the Private Security Guards (Regulation of Employment
and Welfare) Scheme, 1981 was upheld by this court. The
challenges based upon violation of Article 14 and 19 of the
Constitution of India were specifically repealed.
33. In the case of Security Association of India and another
Vs. Union of India and others – (2014) 12 Supreme Court
Cases – 65 the Supreme Court has specifically affirmed the
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decision of this court in the case of Tradesvel (Supra). Further, in
the said case, the Supreme Court has also rejected the contention
that the provisions of the State Act are repugnant to the provisions
of the Private Security Agencies (Regulation) Act, 2005 (Central
Act). In the context of the provisions of the State Act, the Supreme
Court, after making specific reference to the provisions contained
in Section 13 of the Central Act, has rejected the challenge to the
State Act as being violative of Articles 14 and 19 of the
Constitution. In fact, the Supreme Court has held that the
restrictions imposed are reasonable restrictions envisioned by the
Constitution and that they protect the rights and ensure the
welfare of the private security guards engaged by private security
agencie.
34. As regards the challenge to the provision of minimum five
years stay in a particular place for the purposes of seeking
character or antecedent certificate, we propose not to examine
such challenge in the present petition at the behest of the
petitioner. In the first place, we have not been shown such specific
provision either under the act or under the rules. Secondly, there
is not even a single instance cited by the petitioner in this regard.
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Thirdly, such a contention, can be better examined at the instance
of a person aggrieved by the operation of such a rule or
requirement, if any. For all these reasons and in the absence of any
particulars or proper pleadings we do not propose to examine this
particular issue.
35. For all the aforesaid reasons, we dismiss this petition. There
shall be no order for costs.
CHIEF JUSTICE
(M.S.SONAK, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7640 OF 2015
The Security Association of India … Petitioner
Versus
Union of India and others … Respondents
…..
Mr. K. P. Anilkumar, Advocate for petitioner
Mr. Sandesh Patil for respondent No.1
Ms. S. S. Bhende, AGP for respondent No.2
Mr. P. M. Palshikar for respondent No.3
…..
CORAM: DR. MANJULA CHELLUR, C.J.
AND M.S.SONAK, J.
DATE : 13 DECEMBER 2016
P.C.:
1. The petitioner, which claims to be an association of security
agencies, seeks declaration that the following provisions are ultra
vires Articles 14, 19 and 21 of the Constitution of India;
(i) Section 13(1)(k) of the Private Security Agencies
(Regulation) Act, 2005, (said Act).
(ii) Clauses 4(7) and 4(9) of the Private Security Agencies
Central Model Rules, 2006.
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(iii) Clause 4 of the Maharashtra Private Security Agencies
(Regulation) Rules, 2007 including in particular sub
clauses (1) and (7) thereof.
2. The Private Security Agencies (Regulation) Act, 2005 is the
Central legislation to provide for the regulation of private security
agencies and for matters connected therewith or incidental
thereto. Section 3 of the said Act requires the State Government,
by notification, to designate an officer not below the rank of a
Joint Secretary in the Home Department of the State or an
equivalent officer to be the controlling authority for the purposes
of the said Act. Section 4 of the said Act provides that no person
shall carry on or commence the business of private security
agency, unless he holds a licence issued under the said Act.
Section 6 prescribes the prerequisites a person must possess,
before, he is considered for issue of a licence under the said Act.
Section 7 prescribes the procedure to apply for licence under the
said Act. Section 8 is concerned with renewal of licence.
3. Section 9 of the said Act provides that every private security
agency shall, within six months of obtaining the licence,
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commence its activities. Such private security agency is also
required to ensure imparting of such training and skills to its
private security guards and supervisors as may be prescribed.
There is obligation to employ such number of supervisors as may
be prescribed. Section 10 of the said Act prescribes the
prerequisites in the matter of employment or engagement of
private security guards. Subsection (2) of Section 10 bars the
employment or engagement of any person as a private security
guard or supervisor who has been convicted by a competent court
or who has been dismissed or removed on grounds of misconduct
or moral turpitude while serving in any of the armed forces of the
Union, State Police Organizations, Central or State Governments
or in any private security agency.
4. Section 11 of the said Act empowers the State Government
to frame rules to prescribe the conditions on which licence shall be
granted under the said Act and such conditions shall include
requirements as to the training which the licensee is to undergo,
details of the person or persons forming the agency, obligation as
to the information to be provided from time to time to the
Controlling Authority regarding any change of their address,
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change of management and also about any criminal charge made
against them in the course of their performance of duties of the
private security agency or as the case may be, a private security
guard employed or engaged by them. The State Government may
also make provision in the rules to verify about imparting of
required training by the private security agency and to review
continuation or otherwise of licence of such private security
agency which may not have adhered to the condition of ensuring
the required training.
5. Section 13 of the said Act empowers the Controlling
Authority to cancel any licence on one or more of the grounds
specifying subclauses (a) to (l). Since, the challenge in this
petition is to the provision contained in Section 13(1)(k), said
provision is transcribed below for convenience of reference.
“13.(1) The Controlling Authority may cancel any licence on
any one or more of the following grounds, namely :
….......
….......
….......
(k) that there have been repeated instances when the private
security guard or guards provided by the private security
agency
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(i) failed to provide private security or were guilty of
gross negligence in not providing such security;
(ii) committed a breach of trust or misappropriated
the property or a part thereof which they were
supposed to protect;
(iii) were found habitually drunk or indisciplined;
(iv) were found to be involved in committing crimes;
or
(v) had connived or abetted a crime against the
person or property placed under their charge; or
….......
(2)Where the Controlling Authority, for reasons to be recorded
in writing, is satisfied that pending the question of
cancelling of licence on any of the grounds mentioned in
subsection (l), it is necessary to do so, that Controlling
Authority may, by order in writing, suspend the operation
of the licence for such period not exceeding thirty days as
may be specified in the order and require the licence holder
to show cause, within fifteen days from the date of issue of
such order, as to why the suspension of the licence should
not be extended till the determination of the question of
cancellation.
(3)Every order of suspending or cancelling of a licence shall be
in writing and shall specify the reasons for such
suspension or cancellation and a copy thereof shall be
communicated to the person affected.
(4)No order of cancellation of licence under subsection (l)
shall be made unless the person concerned has been given a
reasonable opportunity of being heard ”.
[Emphasis supplied].
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6. Section 14 of the said Act provides that any person
aggrieved by an order of the Controlling Authority suspending or
canceling the licence under Section 13 of the said Act may prefer
an appeal to the Home Secretary of the State Government within
sixty days of the date of such order. The proviso empowers the
State Government to enlarge the time if sufficient cause is shown
for not preferring the appeal within the prescribed period. The
State Government is obliged to afford the appellant reasonable
opportunity of being heard in the matter.
7. Section 24 of the said Act empowers the Central
Government to frame model rules in respect of all or any of the
matters with respect to which the State Government may make
rules under the said Act and where any such model rules have
been framed the State Government shall, while making any rules
in respect of that matter under section 25 of the said Act so far as
is practicable, conform to such model rules.
8. Section 25 of the said Act empowers the State Government
by notification, to make rules for carrying out the provisions of
this Act. Subsection (2) of Section 25, in particular, and without
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prejudice to the generality of such power prescribes the matters,
which such rules may provide.
9. In exercise of powers conferred by Section 24 of the said
Act, the Central Government vide Notification S.O. No. 617 (E)
has made the Private Security Agencies Central Model Rules,
th
2006, which came into force from 26 April, 2006. Amongst
other matters, Rule 4 of such model rules prescribes for the
verification of character and antecedents of the private security
guards and supervisors before they are employed or engaged by
any private security agency. Although, the challenge in this
petition is restricted to subrules (7) and (9), it will be appropriate
to transcribe the entire Rule 4 of the model rules for convenience
of reference.
“ 4. Verification of character and antecedents of the
private security guard and supervisor;
(1) Before any person is employed or engaged as a
security guard or supervisor, the Agency shall
satisfy itself about the character and
antecedents of such person in any one or more
of the following manner:
(a) by verifying the character and antecedents
of the person by itself;
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(b) by relying upon the character and
antecedent verification certificate
produced by the person:
Provided that the character and antecedent
certificate shall be valid and the Agency does
not have any adverse report regarding the
person's character and antecedents from any
other source; as prescribed hereinunder,
produced by the person provided it is valid and
the Agency does not have any adverse report
regarding the person's character and
antecedents from any other source;
(c) by relying on the report received from the
police authorities signed under the
authority of the District Superintendent of
Police or an officer of the equivalent or
higher rank.
(2) The person desirous of getting employed or engaged
as security guard or supervisor shall submit Form II
to the Agency. If the person has stayed in more than
one District during the last five years, the number of
forms will be as many as Districts.
(3) The Agency shall cause an inquiry into the
correctness of the particulars filled in either by itself
or by sending the form to the respective District
Superintendent of Police.
(4) The State Government may prescribe the form and
the manner in which the fee is to be deposited for
the service of character and antecedent verification
by police.
(5) The police will establish identity of the individual
and verify the character and antecedents of the
person by making a visit to the locality where the
person claims to have resided or residing and
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ascertain his identity and reputation from the
respectable residents of the locality. They will also
consult the police station record of the concerned
police station and other records at the District Police
Headquarter before preparing the character and
antecedents verification report. This report will
contain the comments of the police on every claim
of the person in character and antecedents Form
and also a general report about his activities
including means of livelihood in the period of
verification. The police will specifically state if there
is a criminal case registered against the person at
any point of time or if he has ever been convicted of
criminal offence punishable with imprisonment.
(6) The police will specifically comment if the engaging
or employing the person under verification by the
Private Security Agency will pose a threat to
National Security.
(7) The police authorities shall ensure that
character and antecedent verification report is
issued within ninety days of the receipt of the
character and antecedent form.
(8) The report of the police regarding character and
antecedents of a person will be graded as
confidential. It will be addressed in named cover to
a designated officer of the Security Agency
requesting for character and antecedents.
(9) Character and antecedents verification report
once issued will remain valid for three years.
(10) On the basis of police verification and on the basis
of their own verification, the Agency shall issue in
Form III a character certificate and this certificate
will not be taken back by such Agency even if the
person ceases to be the employee of that Agency”.
[Emphasis supplied].
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10. The State Government, in exercise of powers conferred by
section 25 of the said Act vide Notification No. PSA.1006/CR
th
501/Special4 dated 14 March, 2007 has made the Maharashtra
Private Security Agencies (Regulation) Rules, 2007. Amongst
other matters, Rule 4 provides for verification of character and
antecedents of a person before he is employeed or engaged as a
security guard or a supervisor by private security agency.
Although, the prayer clause (a) of the petition refers to subrules
(1) and (7) from the averments in the petition, it appears that the
petitioner seeks to challenge subrules (1) and (9) of Rule 4. In
any case, for convenience of reference, entire Rule 4 is prescribed
below.
“ 4. Verification of character and antecedents of the
private security guard and supervisor
(1)Before any person is employed or engaged as a security
guard or supervisor, the Agency shall satisfy itself
about the good character and antecedents of such
person in any one or more of the following manner:
(a) by verifying the character and antecedents of the
person from the police authorities by itself;
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(b) by relying on the report received from the police
authorities signed under the authority of the
District Superintendent of Police or Deputy
Commissioner of Police incharge of the Zone or
an officer of the equivalent or higher rank.
(2) The person desirous of getting employed or engaged as
security guard or supervisor shall submit Form II to
the Agency. If the person has stayed in more than one
District during the last five years, the number of forms
will be as many as District.
(3) The Agency shall cause an inquiry into the correctness
of the particulars filled in either by itself or by sending
the form to the respective District Superintendent of
Police or Deputy Commissioner of Police in charge of
the Zone.
(4) The State Government may specify by order, form the
amount and the manner in which the fee is to be
deposited for the service of character and antecedent
verification by police.
(5) The police will establish identity of the individual and
verify the character and antecedent of the person by
making a visit to the locality where the person claims
to have resided or residing and ascertain his identity
and reputation from the respectable residents of the
locality. They will also consult the police station
record of the concerned police station and other
records at the District Police Headquarters before
preparing the character and antecedents verification
report. This report will contain the comments of the
police on every claim of the person, in character and
antecedent and also a general report about his
activities, including means of livelihood in the period
of verification. The police will specifically state if there
is a criminal case registered against the person at any
point of time or if he has ever been convicted of
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criminal offence punishable with imprisonment.
(6) The police shall specifically comment if the engaging
or employing the person under verification by the
Agency poses a threat to national security.
(7) The police authorities shall ensure that character
and antecedent verification report is issued within
ninety days of the receipt of the character and
antecedent form.
(8) The report of the police regarding character and
antecedents of a person will be graded as confidential.
It will be addressed in named cover to a designated
officer of the Agency, requesting for character and
antecedents.
(9) Character and antecedents verification report
once issued will remain valid for three years.
(10)On the basis of police verification and on the basis of
their own verification, the Agency shall issue in Form
III a character certificate and this certificate shall not
be taken back by such Agency, even if the person
ceases to be the employee of that Agency. ”
[Emphasis supplied].
11. Since, the petitioner also alleges that Rule 4 of the
Maharashtra Private Security Agencies (Regulation) Rules, 2007
violates Section 24 of the said Act, the said section is transcribed
below for convenience of reference.
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“ 24. The Central Government may frame model rules in
respect of all or any of the matters with respect to which the
State Government may make rules under this Act and where
any such model rules have been framed the State Government
shall, while making any rules in respect of that matter under
section 25, so far as is practicable, conform to such model
rules ”.
12. Mr. K. P. Anilkumar, learned counsel for the petitioner
submits that the provisions in respect of which declarations of
unconstitutionality have been applied for are arbitrary and violate
Article 14 of the Constitution of India. In any case, learned
counsel submits that such provisions impose unreasonable
restrictions unprotected by Article 19(6) and therefore, such
provisions infringe the fundamental right of the petitioner
guaranteed by Article 19(1)(g) of the Constitution of India to
carry on occupation, trade or business.
13. Mr. Anilkumar submits the provision in Section 13(1)(k),
which entitles the controlling authority to cancel the licence of
private security agency, basically, for the faults on the part of the
security guards provided by the security agencies is patently
arbitrary. He submits that such a provision is akin to cancelling the
licence of a factory to operate for the fault of its employee or
agent. He submits that such a provision is extremely harsh and
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imposes a disproportionate burden upon the private security
agency. He submits that there are instances where licenses have
been cancelled even for a single default on the part of the security
guard, and such cancellation is invariably without even minimum
compliance with principles of natural justice. Mr. Anilkumar,
accordingly, submits that the provision in Section 13(1)(k) of the
said Act is liable to be declared as ultra vires articles 14 and 19 of
the Constitution of India.
14. By reference to the 2006 model rules framed by the Central
Government, and the 2007 rules framed by the State Government,
Mr. Anilkumar submits the requirement of securing verification of
character and antecedents of persons before they are employed or
engaged as security guards or supervisors by any private security
agency, is arbitrary and in the nature of an unreasonable
restriction, unprotected by Article 19(6) of the Constitution of
India. He submits that the security agencies, mostly engage ex
servicemen or members or persons who have served in the Police
force or as Home Guards. To require the verification of character
and antecedents of such persons, which is quite a time consuming
process, is unnecessary and constitutes an unreasonable restriction
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upon the fundamental rights of the persons carrying on the
occupation or business as private security agencies. He submits
that in any case, once the character and antecedents verification
report is issued by the competent authority, there is no reason for
prescribing validity period of three years in respect of such report,
unless there is any material on record to suggest that some crime
is reported against some particular security guard during such
period of three years.
15. Learned counsel further submits that a time limit of ninety
days granted to the authorities to issue the character and
antecedent verification report is too long and the same ought to
be reduced to thirty days, if such provision is to be regarded as a
reasonable restriction. He further submits that it is necessary to
direct that in case, the police authorities fail to complete the
verification process within thirty days from the date of receipt of
application, then, such verification report should be deemed as
granted. This, he submits, is necessary in order to save the
provisions from the charge of unconstitutionality.
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16. Learned counsel further submits that the condition in the
State rules to the effect that security guard should have minimum
five years stay in a particular place for seeking character and
antecedent certificate is also ultra vires the rights of the petitioner
and its members, apart from being ultra vires the provisions of the
said act, model rules and the State rules.
17. Mr. Sandesh Patil, who appears for the Union of India, Ms. S.
S. Bhende, learned AGP for the State of Maharashtra and Mr. P. M.
Palshikar, learned counsel for respondent No.3 have opposed the
submissions made by Mr. Anilkumar and submitted that the
impugned provisions are neither arbitrary nor do they impose any
unreasonable restrictions upon the petitioner or its members. They
submit that the petitioner, which, in all probabilities is an
unregistered association, can hardly be regarded as a citizen of
India, for it to claim any fundamental right under Article 19(1)(g)
of the Constitution of India. In any case, they submit that the
impugned provisions are regulatory in nature and the restrictions
imposed, are perfectly reasonable. They submit that the
restrictions are well protected under Article 19(6) of the
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Constitution of India. They submit that the petitioner has not
adverted any concrete instances of cancellation of licence or
unreasonable delays in the matter of issuance of character and
antecedent reports. In any case, they submit that individual
instances of dereliction are not grounds sufficient for striking
down the impugned legislative provisions and it is always open to
the persons aggrieved to challenge such instances before the
appropriate authority and in the appropriate manner. For all these
reasons, the learned counsel submit that the present petition be
dismissed with costs.
18. The rival contentions now fall for our determination.
19. The relevant provisions of the said Act, the 2006 model rules
framed by the Central Government and the 2007 Rules framed by
the State Government have already been adverted to. As noted
earlier, the said act and the rules made thereunder seek to
regulate private security agencies and provide for matters
connected therewith or incidental thereto. There is no challenge
to the said Act or the rules made thereunder on the basis of
legislative competence.
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20. The said Act provides for the designation of a controlling
authority in order to ensure due compliances to the provisions of
the said Act and the rules made thereunder. Section 13(1)
empowers such controlling authority to cancel the licences issued
to any private security agency, where, there have been repeated
instances when the private security guard or the guards provided
by the private security agency failed to provide private security or
were guilty of gross negligence in not providing security; or where
such security guards commit a breach of trust or misappropriate
the property or a part thereof which they were supposed to
protect; where they are found to be habitually drunk or
indisciplined; where they are found to be involved in committing
crimes; or have connived or abetted a crime against the person or
property placed under their charge.
21. There is no merit in the contention of Mr. Anilkumar, that
the provision contained in Section 13(1)(k) is arbitrary, because,
the provision enables the controlling authority to cancel the
licence of security agency, even where a single incident of
misconduct by a security guard is noticed. Section 13(1)(k) itself
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provides that the power of cancellation can be exercised when
“ repeated instances ” as prescribed in subclauses (i) to (v) are
found to exist. The use of the expression “ repeated instances ”, is
itself a safeguard provided to private security agencies and
therefore, it cannot be said the provision contained in Section
13(1)(k) is either arbitrary or that, the same imposes any
unreasonable restriction, which is alien to the purposes set out in
Section 19(6) of the Constitution of India.
22. In a situation, where the security guards provided by the
security agency, repeatedly fail to provide for security or are
grossly negligent in providing security or commit breach of trust
or misappropriation or are found to be habitually drunk or
indisciplined or are found involved in committing crimes or
connive or abet a crime against the person or property placed
under their charge, then, such security agency can be required to
assume the responsibility for the acts of such security guards
provided by them. There is nothing arbitrary or unreasonable in
making a provision of this nature taking into consideration the
nature of duties which security guards are required to discharge
and the standard of care which is expected of a private security
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agency, which provides for such security guards. Restriction, in the
present case, is undoubtedly reasonable and further, the same is in
the interest of the general public.
23. In order to determine the reasonableness of restriction, the
regard must be had to the nature of the business, which in the
present case, is providing of security guards, who are very often
left to guard the person and property of those who engage their
services. The reasonableness of restriction is to determined in an
objective manner and from the standpoint of the interests of the
general public and not from the standpoint of the interests of
person upon whom the restrictions have been imposed or upon
any abstract consideration.
24. Mr. Anilkumar's submission that licencee are cancelled by
the controlling authority even where a single instance of
misconduct on the part of the security guard is noticed or that the
cancellation of such licences is invariably without compliance with
principles of natural justice, deserves no acceptance. In the
petition, no specific instances of this nature have been cited. As
noted earlier, Section 13(3) of the said Act mandates the record of
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reasons by the controlling authority for either suspension or
cancellation of a licence. Section 13(4) of the said Act, in terms
provides that the order of cancellation has to be preceded by
afford of reasonable opportunity of being heard. This means that
the principles of natural justice and fair plea have been statutorily
structured in section 13 of the said Act. Restriction cannot be held
to be unreasonable, merely because in a given case it may operate
harshly. Further in determining whether a restriction is
unreasonable, the nature of the right alleged to have been
infringed, underlying purpose of the restriction imposed, the
proportionality of the restriction are some of the aspects which
have to be taken into consideration. The circumstances like
provision of appeal or the requirement to comply with principles
of natural justice before adverse action is initiated, are also
matters relevant for determining the reasonability of the provision
concerned. Parbhani Transport Cooperative Society Ltd. Vs.
The Regional Transport Authority, Aurangabad and others AIR
1960 S.C.(801) and Union of India and another Vs.
International Trading Co. and another 2003 (5) SCC 437.
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25. In the present case, apart from the reference to “repeated
instances”, in section 13(1)(k), section 13(3) of the said Act
requires the controlling authority to make an order or suspension
or cancellation of licence in writing and specify the reasons
therefore. Such order is required to be communicated to the
person affected. Section 13(4) provides that no order of
cancellation of licence under subsection (1) of Section 13 shall be
made unless the person has been given reasonable opportunity of
being heard. Section 14 provides for appeal to the Home Secretary
against the order of cancellation. Subsection 3 of Section 14
again in terms provides that before disposing of appeal the State
Government shall give the appellant reasonable opportunity of
being heard.
26. There are no individual instances cited by the petitioner to
demonstrate that the provision impugned, operates harshly. In any
case, individual instances of such nature, if any, can always be
corrected in appeal. Such individual instances, if any, are by no
means sufficient grounds to declare the provisions of Section
13(1)(k) of the said Act as unconstitutional or ultra vires. The
appellate authority is also required to afford opportunity of
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hearing before disposal of appeal against the cancellation. All
these factors are relevant to hold that the provision contained in
Section 13(1)(k) of the said Act is quite reasonable and there is no
merit in the contention that such provision violates Article 14 or
Article 19(1)(g) of the Constitution of India.
27. Insofar as the challenge to Rule 4 of the Central Model Rules
or the State Rules is concerned, we note that such rules require
the security agency to obtain certificate of verification of character
and antecedents of the person whom they propose to employ as
security guards or supervisors. The circumstance that some of the
members of the petitioner association employ or engage only ex
servicemen or persons earlier employed in the police force, is
quite besides the point. If the provisions of the said Act are
perused in their entirety, it is seen that there is no bar upon
security agencie's employing or engaging persons other than
exservicemen or exemployees of police force, as long as such
persons fulfill the requirements set out in Section 10 of the said
Act or such other requirements as may be prescribed. The rules,
which mandate the obtaining of certificate of verification of
character and antecedents, applies uniformly to all private security
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agencies and there is really nothing arbitrary or unreasonable with
regard to such a requirement. In fact, we are of the opinion that
such a provision is undoubtedly in the interest of the members of
the general public and to some extent, also in the interest of
private security agencies themselves.
28. The private security agencies who engage only
exservicemen or persons who have served in the police force or in
the home guards as security guards or supervisors, will
presumably have no serious difficulties in obtaining character and
antecedents certificates. However, it must be noted that there can
be no universal presumptions in this regard since, it cannot be
said with certainty that such exservicemen or exemployees of the
police force or home guards will invariably have good character or
antecedents, so as to render verification futile or unnecessary.
29. The submissions that, period of ninety days specified in Sub
Rule 7 of Rule 4 in the matter of issuance of character and
antecedent verification report ought to be reduced to thirty days
or that a provision should be made for grant of deemed
verification report, are quite misconceived. It is not within the
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province of this court in the exercise of its power of judicial review
to rewrite a statute. As long as the statute as it stands, is not in
violation of part III of the Constitution or otherwise beyond the
legislative competence, there is no question of striking down such
statute, on the basis of any hypothetical and unsubstantiated
apprehensions expressed by the petitioner.
30. There is a presumption of constitutionality and matters such
as prescription of qualification of safeguards are basically matters
of legislative policy, which cannot be interfered with in the
exercise of powers of judicial review, unless, it is established that
same are arbitrary or unreasonable. The same applies to the
prescription of time schedules within which applications seeking
character and antecedent verification reports must be disposed of.
In exercise of powers of judicial review, it is not within the
province of this court to either rewrite the statute or to create any
legislative fiction, by way of deemed permission, where there is
failure to dispose of the application within the prescribed period.
Accordingly, we find no merit in the challenge to the rules.
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31. There is no inconsistency between 2006 Model Rules and
the 2007 State Rules if the provisions containing Rule 4 of the
either rules are perused and analysed. Besides, Section 24 merely
prescribes the State Government, while making any rules under
section 25 shall, so far as is practicable , confirm to such model rules
made by the Central Government under section 24 of the said Act.
Accordingly, there is no merit in the challenge to the State Rules
on the ground that they violate Section 24 of the said Act.
32. In the case of Messrs Tradesvel Security Services Pvt. Ltd.
Vs. State of Maharashtra – 1982 (84) Bombay Law Reporter –
608 , the constitutional validity of the Maharashtra Private
Security Guards (Regulation of Employment and Welfare) Act,
1981 and the Private Security Guards (Regulation of Employment
and Welfare) Scheme, 1981 was upheld by this court. The
challenges based upon violation of Article 14 and 19 of the
Constitution of India were specifically repealed.
33. In the case of Security Association of India and another
Vs. Union of India and others – (2014) 12 Supreme Court
Cases – 65 the Supreme Court has specifically affirmed the
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decision of this court in the case of Tradesvel (Supra). Further, in
the said case, the Supreme Court has also rejected the contention
that the provisions of the State Act are repugnant to the provisions
of the Private Security Agencies (Regulation) Act, 2005 (Central
Act). In the context of the provisions of the State Act, the Supreme
Court, after making specific reference to the provisions contained
in Section 13 of the Central Act, has rejected the challenge to the
State Act as being violative of Articles 14 and 19 of the
Constitution. In fact, the Supreme Court has held that the
restrictions imposed are reasonable restrictions envisioned by the
Constitution and that they protect the rights and ensure the
welfare of the private security guards engaged by private security
agencie.
34. As regards the challenge to the provision of minimum five
years stay in a particular place for the purposes of seeking
character or antecedent certificate, we propose not to examine
such challenge in the present petition at the behest of the
petitioner. In the first place, we have not been shown such specific
provision either under the act or under the rules. Secondly, there
is not even a single instance cited by the petitioner in this regard.
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Thirdly, such a contention, can be better examined at the instance
of a person aggrieved by the operation of such a rule or
requirement, if any. For all these reasons and in the absence of any
particulars or proper pleadings we do not propose to examine this
particular issue.
35. For all the aforesaid reasons, we dismiss this petition. There
shall be no order for costs.
CHIEF JUSTICE
(M.S.SONAK, J.)
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