Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4473-4474 OF 2002
Krantikari Suraksha Rakshak Sanghatana …Appellant
Versus
Bharat Sanchar Nigam Ltd. and Ors. …Respondents
With
(Civil Appeal Nos. 4192/2003, 4475 and 4476/2002, 4477/2002,
4478/2002, 4692-4693/2002, 4698-4701/2002, 4702-4704/2002,
216/2003, 4695-4697/2002, 6722/2004, C.A.5227/08 @ SLP (C)
No.13553/2007)
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted in SLP (C) No.13553/2007.
2. In these appeals challenge is to the judgment of the Bombay
High Court dismissing a batch of writ petitions filed by the
appellants who are trade unions in the writ petitions. The principal
contention was that once Security Guard Board constituted under
the Maharashtra Private Security Guards (Regulation of
Employment and Welfare) Act, 1981 (in short the ‘Act’) allots guards
to a principal employer, it looses the power to recall, re-allot or
transfer such guard as the guard so allotted becomes an employee
of the principal employer. By the impugned judgment the High
Court held that the main contentions advanced by the Unions were
covered by a series of judgments of earlier Division Benches as well
as of learned Single Judges of the High Court which were binding
upon it. Nevertheless, the Division Bench also examined the
acceptability of contentions advanced and ultimately held that the
contentions were without substance.
3. Stand of the appellants in short is as follows:
Under the Act and the Scheme framed thereunder the
security guards, on allotment by the Board to an
2
employer/principal employer, become the employees of that
Principal Employer.
The exploitation of around 70,000 private security guards
employed through agencies in Maharashtra was extreme and
notorious. It has been set out in detail by His Lordship Justice P.B.
Sawant, as His Lordship then was, in the case of M/s. Tradesvel
Security Services Pvt. Ltd. Vs. State of Maharashtra (84 BLR 604). It
was to ensure that such exploitation could no longer take place
that the Board was set up by the State Government and given
certain supervisory powers. The Board is thus nothing but a
statutory recruitment/allotment body invested with certain powers
to oversee the master-servant relationship which exists between the
guards and registered employers to whom they are allotted, in
the context of the historical gross exploitation of this section of the
workers in the state. The mere fact that such powers are given to a
Board by statute does not mean that the master servant
relationship does not exist between the guards and registered
employers to whom they are allotted. It is always open for this
relationship to be regulated by statute.
It is an anathema to Indian industrial law that a servant
cannot have a master. Thus, an employer for the registered guards
3
has to be identified. The Board cannot be held to be their employer,
and it is not its case that it is the employer.
4. Strong reliance is placed on a decision of this Court in
Vizagapatnam Dock Labour Board v. Stevedores Assn.
Vizagapatnam and Ors. (1970 (2) SCR 303). This Court held that
the registered employer to whom the labour force is allotted by the
board is the employer whose work of loading and unloading of ships
is done by the dock workers allotted to them.
5. It is pointed out that this conclusion was arrived at despite
the circumstances that on recruitment and registration of the dock
labour force, fixation of wages and D.A., payment of workmen’s
compensation, taking of disciplinary action, prohibition of
employment of workmen who were not registered with the board,
categorization and fixation including increase or decrease in the
number of dock workers and transfer and promotion of dock
workers were done by the board. Reliance has also been made on
4
several judgments of learned Single Judge of the Bombay High
Court.
6. It is pointed out by the respondents that the entire batch of
writ petitions before the High Court to which these appeals relate
are concerned with Security Guards supplied by the statutory
board to principal employers and have nothing to do with private
security agencies or agency guards. All the principal employers
involved in these appeals had at the concerned time been using
Board guards i.e. those recruited and selected by the Board post
1987 to various principal employers.
7. Under Clause 3 of Section 2 of the original Act "employer"
means the person who has ultimate control over the affairs of the
factory or establishment where the security guard is employed.
th
Under the said Act, as amended, with effect from 29 April,
1996:-
(i) Clause 3 of section 2 provides that employer in
relation to security guards in the direct employment
of an agency or agent and deployed in a factory or
5
establishment through such agency or agent
means such agency or agent.
ii) Clause 8 of section 2 states that `Principal
employer' in relation to any security guard deployed
in a factory or establishment by an agency or agent
or board means the person who has ultimate
control over the affairs of the factory or
establishment.
8. Thus, under the original Act as well as under the amended Act
the person who has ultimate control over the affairs of the factory
or establishment where the security guard is deployed is his
employer.
9. As per Clause 26(4) of the unamended Scheme (and Clause 24
(4) of the amended scheme), the security guard must work under
the supervision, control and direction of the person who has
ultimate control over the affairs of the factory/establishment where
he is deployed. Therefore, under the tests laid down by this Court
for establishing the master-servant relationship as in the case of
Dharangadhara Chemical Works Ltd. v. State of Saurashtra (1957
SCR 152), Mangalore Ganesh Beedi Works etc. v. Union of India
6
etc. (AIR 1974 SC 1832), Silver Jubilee Tailoring House and Ors.
v. Chief Inspector of Shops and Establishments and Anr. (1974 (3)
SCC 498), Hussainbhai, Calicut v. The Alath Factory Thezhilali
Union, Kozhikode and Ors. (1978 (4) SCC 257) and Indian
Petrochemicals Corporation Ltd. and Anr. v. Shramik Sena and
Ors. (1999 (6) SCC 439) the person who has ultimate control over
the affairs of the factory or establishment where the security guard
is deployed, is the employer of the guard.
10. Sections 19, 20 and 21 of the Act, specifically state that for
the purpose of the Act mentioned therein the employer is the
person who has control over the factory or establishment where the
security guard is employed, since admittedly, wages are paid by
that person though it may be at times through the medium of the
Board for convenience.
11. With reference to Section 1(4) of the Act it is pointed out by
the respondent that it applies to persons who worked as security
guards in any factory or establishment but who are not direct and
7
regular employees of the factory or establishment as the case may
be. Reference is also made to Section 2 (1) stating that in this Act
unless the context otherwise requires ‘agency’ or ‘agent’ in relation
to a Security Guard, means an individual or body of individuals or
a body Corporate, who undertakes to execute any security work or
watch and ward work for any factory or establishment by engaging
such Security Guard on hire or otherwise, or who supplies such
Security Guards either in groups or as an individual, and includes
a sub-agency or a sub-agent of the Board.
12. Section 2(10) defines a ‘Security Guard’. It is pointed out that
though there is no dispute that the respondent in each case is the
principle employer but the prayer made in the writ petitions cannot
be accepted in view of what is stated in Section 1(4). Section 2(3)
defines the ‘employer’. It is also submitted that earlier also similar
petition had been filed and notwithstanding adverse adjudication,
the Unions are still persisting in pursuing the claims which had
already been rejected.
8
13. Learned counsel for respondents in Civil Appeal No.4477 of
2002 has submitted as follows:
(a) the Maharashtra Private Security Guards Act and
Scheme framed thereunder constitute a complete and
self-contained code;
(b) Security Guards who seek registration with the
statutory Board and are allotted to different principal
employers by the Board continue to be members of the
"Pool" as defined in Clauses 4(f) and 4(g) of the 1981
Scheme which is defined as the "Board Pool" in Clause 3
(c) of the 2002 Scheme and consequently continue to be
subject to common seniority maintained by the Board
(Clause 16 of 1981 Scheme) and Clause 15 of 2002
Scheme transfers by the Board, disciplinary action
including termination by the Board (Clause 31 of 1981
Scheme) and Clause 32 of 2002 Scheme.
(c) The power to recruit, select, appoint, allot,
promote, transfer, take disciplinary action, and
9
terminate employment of a registered security guard
in the “Pool” or “Board Pool” is vested exclusively in
the statutory Board.
(d) The principal employer has no power whatsoever
except to issue routine directions in the course of day to
day security work. Even Security Supervisors and
Security Officers are supplied/allotted by the Board, and
these Supervisors and Officers function under the
control of statutory Inspectors appointed by the Board;
(e) The Appellant's argument that a security guard
allotted to a principal employer becomes the employee of
that principal employer, and equally the argument that
the Board's power to allot is a one-time power which gets
exhausted once allotment is made, is completely
misconceived and ignores virtually all the provisions of
the Act and Scheme;
10
(f) Among other things, this argument ignores Section 1
(4) of the Act, which specifies that the Act applies only to
those security guards "who are not direct and regular
employees of the factory or establishment, as the case may
be". If the Appellant's argument is accepted, the guards
upon allotment will become direct and regular employees
of the principal employer, and thereby will go out of the
purview of the Act and Scheme, thus losing the entire
protection of the statutory provisions. It also ignores the
provisions of the Scheme, which apply only to guards
who are in the "Pool" or are "Pool Security Guards"
(under the 1981 Scheme) and are in the "Board Pool"
(under the 2002 Scheme). If guards were to become
employees of the principal employer upon allotment, the
entire Scheme would cease to apply to them instantly
upon being allotted to a particular employer;
(g) If the Appellant's arguments are accepted, it would
mean that the entire Scheme would become nugatory
and redundant. It is important to note that the 1981
11
Scheme applied only to guards recruited, appointed and
allotted by the Board (the 2002 Scheme also applies in
addition to guards employed by private security agencies,
with which these appeals are not concerned. Insofar as
the Board's guards are concerned, the entire provisions
of the Scheme are dependent upon their continuing to be
controlled by the Board after allotment. The Appellants'
argument would completely defeat these provisions and
render the entire Scheme into a dead letter.
(h) In any event, all these arguments have time and again
been considered and rejected by the Bombay High Court,
and applying the principle of stare decisis, the
Judgments of the High Court which have held the field
for the past 25 years ought to be upheld and affirmed.
(i) Without prejudice to the above, in any case the
present appellants are barred by res judicata, or
principles analogous thereto, from raising such
arguments, as the very same submissions have time and
12
again been rejected by the Bombay High Court in
proceedings filed by the appellant Union, and the said
Judgments having gone unchallenged by the present
appellant, they have become final and binding against
the Krantikari Suraksha Rakshak Sanghathan.
14. It is pointed out that only four grounds were urged by the
High Court and each one of them has been dealt with. It is also
pointed out that Sections 19, 20 and 21 specifically provide for
application of certain Act to the Security Guards. These are
Workmen’s Compensation Act, Payment of Wages Act and
Maternity Benefits Act which shows what for these specific statutes
are. No further Statute dealing with employer and employee
relationship and their rights thereunder is made applicable or
available to the Security Guards. In other words, the provisions of
the Act make it clear that it is only these statutes which have been
specifically made applicable to the Security Guard and accordingly,
other statutes are clearly excluded.
15. Reference is also made to Schemes of 1981 and 2002.
13
16. On consideration of rival submissions one thing is crystal
clear that the appellants based their case on the decision in
Vizagapatnam Dock Labour’s case (supra). The respondents on the
other hand relied on several earlier judgments of the Bombay High
Court, a few of which were deciding petitions filed by some of the
appellant’s Union, and in Writ Petition No.2671 of 1992 the claim
of direct employment with the principal employer by allotment by
the Board was agitated and was rejected by a Division Bench
consisting of Hon’ble Mrs. Justice Sujata Manohar and Hon’ble Mr.
Justice S.H. Kapadia. The Bench inter-alia observed as follows:
“7. The petitioners had relied upon a decision of
the Supreme Court in the case of Dock Labour
Board v. Stevactoras Assoco reported in AIR 1970
SC page 1826 at page 1632. The Supreme Court
while considering the Scheme framed under the
Dock Workers (Regulation of Employment) Act,
1948 had discussed the position of the Dock
Labour Board under the Scheme. The Supreme
Court observed in this connection that the purport
of the Scheme was that the entire body of workers
should be under the control and the entire body of
workers should be under the control and
supervision of the Board. But the Board cannot be
considered to be the employer of the Dock Labour
Workmen. After discussing the various provisions
of that Scheme, the Supreme Court said that the
registered employer to whom the labour force is
14
allotted by the board is the employer whose work of
loading or unloading of ships is done by the
workers allotted to them. The Supreme Court was
not concerned in that case with the question
whether the Board had the power to allot labourers
to another registered employer or not. The mere
fact, therefore, that the certain purposes the
employees is considered as an employees of the
registered employer under the Dock Labour
Scheme is not of any assistant to the petitioners in
the present petition. In fact, it was pointed out by
st
Mr. Devitre, Ld. Counsel for the 1 respondents
that under sections 19, 20 and 21 of the
Maharashtra Private Security Guards (Regulation
of Employment and Welfare) Act, 1951, the Board
shall be deemed to be the employer of registered
security guards for certain purposes as set out in
these sections. Therefore, the above decision of the
Supreme Court does not assist the petitioners in
the present case.
nd
8. The Secretary of the 2 respondent’s Board
has set out in his affidavit that the security guards
who were working with the Ist respondents at Sewri
and Wadala Units had become, by reason of their
length of posting familiar with the employees and
outside parties like suppliers and transporters. It
was, therefore, felt necessary for better security,
that the security guards should be rotated by the
nd
Board sending a fresh allotment. The 2
respondent Board therefore agreed to rotate the
security guards batchwise. It accordingly
transferred five security guards working in the
Wadala Unit to other establishments in the year
1992. No dispute was raised at that stage. The
petitioners have filed this petition now on an
apprehension that they may all be allotted to other
employers. No orders, however, of a fresh allotment
have been issued as far as the petitioners are
15
concerned, except for the five employees who were
sent to other establishments in 1992.
9. It is also necessary to note that the service
conditions of the petitioners are not going to be
adversely affected even if they are allotted to other
nd
registered employers. The 2 respondent has
stated that if the petitioners or any of them are
withdrawn from the Ist respondent such a
withdrawal will be concomitant with their allotment
to another registered employer. In these
circumstances we also do not see any prejudice to
the petitioners who also do not see any prejudice to
th
the 4 petitioner who are fully protected under the
said Scheme.”
17. It is clear that virtually all the arguments which are now being
advanced were also advanced earlier and each one was specifically
dealt with and rejected. It was held that Vizagapatnam Dock
Labour’s case (supra) was clearly distinguished and had no
application. Earlier to that Justice P.B. Sawant (as he then was) by
judgment dated 2.11.1982 dealt with the matter at great length. By
the said judgment, the Hon’ble Judge upheld the constitutional
validity of the Act and the Scheme and it was held that (a) the Act
was a complete and self contained code; (b) the Board had all
necessary powers under the Act to regulate all aspects of
employment and all service conditions of private Security Guards;
16
(c) there was no need under the Act and the Scheme to identify the
employer of Security Guards as all conditions of their employment
were governed by the Act; and (d) if at all there was any conditions
of service which are not regulated or covered by the Act and the
Scheme then for such conditions only the principal employer would
be treated as the employer of the Security Guard.
18. The judgment in Vizagapatnam Dock Labour’s case (supra)
was distinguished and it was held that the Dock Labour Act and
the scheme thereunder were different from the Act and Scheme. It
appears that the appellant- Krantikari Suraksha Rakshak
Sanghatana made another attempt to raise the same issues. They
were negatived by Justice B.N. Srikrishna as he then was. The
learned Judge expressly followed the judgment of Justice P.B.
Sawant holding that there was no need to identify the employer as
it was complete and self-contained code. It was however held that if
there were any aspects not covered by the Act, such as ‘unfair
labour practice” which was not involved the principal employer
would be treated for the limited purpose be identified as the
employer. It was inter alia observed as follows:
17
22. “Mr. Singhvi submitted that he was really not
interested in urging that the Security Guards Board
was the employer of the Security Guards under the
Security Guards Act and the Security Guards
Scheme. He was at pains to contend that under the
terms of the Security Guards Scheme, a registered
employer would become the employer of the
Security Guard from the moment the Security
Guard was allotted to the registered employer.
Before dealing with this contention, I might dispose
of the subsidiary contention of Mr. Singhvi which
appears to be no longer tenable. Mr. Singhvi
contended that though Clause 16 of the Security
Guards Scheme bears the heading “Promotion and
transfer of Security Guards”, there is no provision
whatsoever contained in the entire Clause 16 with
regard to transfer of Security Guards. Hence, the
Security Guards Board has no power to transfer a
Security Guard from one establishment to another,
in the submission of Mr. Singhvi. He contends that
the power of allotment of Security Guards to the
industrial establishment of the registered employer
possessed by the Security Guards Board is
exhausted upon one time exercise thereof. Once the
Security Guard is allotted to a registered employer,
the power is exhausted and there is no further
power in the Board directly or by implication,
under the Security Guards Scheme, to withdraw the
Security Guard and to re-allot him to another
registered establishment. Though prima facie
attractive this contention is not sound in my view,
apart from being no longer res integra.
23. The Division Bench of this Court in Suraksha
Rakshak and General Kamgar Union v. M.S.S.I.D.C.
rd
and Ors. (Writ Petition No.2671 of 1992 dated 23
March, 1993 per Smt. Sujarat Manohar and S.H.
18
Kapadia, JJ) has considered and rejected this
contention. The Division Bench pointed out that
direct employment and coverage under the Act are
anathema to each other. In view of the specific
provisions in the Security Guards Act under Section
1(4), the Act would apply to persons who work as
Security Guards engaged in any factory or
establishment, but are not direct and regular
employees of the industrial establishment. Secondly
upon examination of the provisions of the Scheme
the Division Bench took the view that the Security
Guards Board has the additional power to allot
registered Security Guards to any registered
employer and also terminate the employment and
these powers would include the power to withdraw
allotment to a given registered employer and re-allot
the guard to another registered employer. The
requirement of a registered employer may vary from
time to time and commensurately the Board is
entitled to adjust the allotment from time to time.
The Division Bench also pointed out that both the
power of allotment as well as the power of
termination are with the Board and a proper
implementation of the scheme requires that the
Board to possess the power to allot Security
Guards to such registered employer as it thinks fit
and there is nothing in the scheme to indicate that
the allotment once made is irrevocable or cannot be
changed. The fact that when a Security Guard is on
leave the Board has the power to allot another
Security Guard, also indicates that the allotment of
Security Guards is entirely under the control of the
Board and the Security Guard cannot claim a right
of permanent allotment to any particular registered
employer. In my view looking to the observations
and the findings made by the Division Bench
(supra) the contention of Mr. Singhvi cannot be
accepted. Under Clause 26(8) of the Security
Guards Scheme where an employer makes
19
persistent default of payments of wages and
allowances and levy to the Board, the Board has the
right to suspend supply of the Security Guards. The
existence of such a power of suspension of supply
of registered Security Guards is a registered
employer spells out the existence of the power of
withdrawal of the Security Guards.
24. Mr. Singhvi then contended that the historical
background of the legislation shows that the
Security Guards Act was intended to abolish the
agents or middlemen, to abolish the practice of hire
and fire and to provide better and more secure
employment to Security Guards. According to him,
this can only be ensured if the principal employer is
held to be the employer of the Security Guards. It is
difficult to accept the contention as urged by the
learned counsel. It may be possible upon analysis of
the detailed provisions of the Security Guards
Scheme, to postulate that for certain purposes the
registered employer may be held to be the employer
of the registered Security Guards, but it is not
possible to accept the contention that upon
allotment of a Security Guard to a registered
employer, the registered employer should be held to
be the employer of the Security Guard for all
purposes.
In para 55 it was inter-alia observed as follows:
“(a) Writ Petition No.45 of 1991
The findings of the Third Labour Court, Thane,
th
dated 13 July, 1990 and of the Industrial Court in
th
its order dated 4 December, 1990 taking the view
that a complaint under the Maharashtra
20
Recognition of trade unions and Prevention of
Unfair Labour Practices Act, 1971 against the
registered employer under the provisions of the
Security Guards Act, 1981 and the Security Guards
Scheme, 1981 is not maintainable is hereby
quashed and set aside. It is held that such a
complaint on behalf of the Security Guards would
be maintainable against the registered employer
under the Security Guards Scheme, 1981.
On the merits of the complaint, however, it
appears that the only grievance made was that the
Board had no power to redeploy a Security Guard
from the establishment of the Second respondent
Employer’s establishment to any establishment.
The act of the Board in withdrawing the Security
Guards from the establishment of the Second
Respondent Employer and posting them elsewhere
was alleged to be an unfair labour practice and
relief was claimed there against. On merits, I do not
see how any relief could have been granted.
Following the Division Bench judgment of our High
Court, I am of the view that the Board has full
power to withdraw a Security Guard from the
establishment and post him to any establishment of
another registered employer. Since there was no
other relief prayed for in the complaint the finding
of the Courts below that the complaint was liable to
be dismissed even on merits is correct and liable to
be upheld. Hence, there is no need to remand the
complaint for retrial. In the result, Writ Petition
No.45 of 1991 is hereby dismissed. Rule discharged
with no order as to costs.
(b) Writ Petition No.1409 of 1993.
th
The order of the Industrial Court dated 16
December, 1992 in Complaint (DLP) No.342 of 1992
holding that the complaint was not maintainable
21
and that it had no jurisdiction to entertain the
complaint, is hereby quashed and set aside. It is
held that the complaint is maintainable and that
the Industrial Court has jurisdiction to try the
complaint. On merits, the learned Judge of the
Industrial Court has held that no unfair labour
practice under Item No.1(a) of Schedule II of item
Nos. 5, 6 and 9 of Schedule IV of the ULP Act had
been proved and dismissed the complaint. Even the
findings appear to be correct. The petitioner Union
had taken the stand that it did not desire to lead
any evidence in the complaint, though the
allegations had been denied by the employers.
Consequently, even though I have held that the
complaint is maintainable there being no evidence
of unfair labour practice, the complaint must fail on
merits. Though Mr. Singhvi vehemently argued that
I may consider remanding the complaint for re-trial
after giving opportunity to the petitioner Union to
lead evidence on merits, I decline to do so. In the
circumstances, it is not possible to accede to the
request of the learned Advocate. This petition also
fails on merits. Hence, this writ petition is
dismissed and the rule is discharged with no order
as to costs.
© Writ Petition No.3862 of 1993-
In this case also the Security Guards were
withdrawn from one establishment of the second
respondent Employer and re-allotted to another
establishment. This act of the Board was alleged to
be an unfair labour practice on the part of the
registered employer and the Board. It was also
contended in the complaint that the Board had no
power whatsoever to withdraw the Security Guards
once allotted. Following the view of the Division
Bench of our High Court, I am of the view that the
Board has such power. The complaint in this writ
22
petition must therefore fail on merits and remand
would serve no purpose. Consequently, this petition
is also dismissed and the rule is discharged with no
order as to costs.”
19. In this case also Vizagapatnam Dock Labour’s case (supra)
was relied upon by the Union. But the High Court held that it was
rendered in respect of a different Act and Scheme. This judgment
was also not challenged by the appellant-Union.
20. It is interesting to note that another Writ Petition
No.3887/1988 was filed before the Division Bench which was
decided on 6.5.1997 and the judgment in W.P. 2671 of 1992 was
followed and it was held that the power of allotment included within
it the power to recall, re-allot and transfer and that under the
entire Act and Scheme would be defeated if the argument of direct
employment was to be accepted. The conclusions arrived at are as
follows:
“16. The second argument that the Board has no
power of withdrawing a Security Guard once
allotted is also devoid of any merit. If the power to
withdraw and re--allot is not with the Board then
formation of pool for the Security Guards would be
rendered meaningless. Taking into consideration
23
the provisions of the Act and the entire Scheme as
framed under the Act, it indicates that if the Board
has power to allot a Security Guard available in a
pool, it will have to be held that the Board has a
power to withdraw a Security Guard from one
establishment and allot him to another
establishment. We are of the opinion that
considering the Act and the Scheme and to proper
and smooth functioning of the said scheme, it will
have to be held that the Board has power to
withdraw a Security Guard from one establishment
and to re-allot him to another establishment and we
must mention at this stage that Shri Mahanty who
th
was withdrawn on 4 of July 1988 was immediately
th
re-allotted on 5 of July, 1988. Thus we conclude
that the power of allotment as available with the
Board, carries with it the necessary incidence of
power of withdrawal and re-allotment from the pool.
17. In fact, the same issue was agitated before the
Division Bench of this Court in Suraksha Rakshak
and General Kamgar Union (supra) and the Division
Bench while dealing with the argument that under
the Scheme once the Security Guard is allotted by
the Board to a registered employer, the Security
Guard becomes permanent allottee and the Board
has no power to withdraw an allotment or give a
fresh allotment with any other registered employer,
and after considering the Act and the Scheme, has
held that the Board has power to withdraw an
allotment of a Security Guard given to a registered
employer and re-allot the Guard to another
registered employer. The requirements of a
registered employer may vary from time to time and
the Board is entitled to adjust the allotment from
time to time. The Division Bench in paragraph 6 of
its judgment has also observed as follows:
24
"The Scheme, therefore, must be looked
at as a whole and proper implementation
of the Scheme requires that the Board
has the power to allot security guards to
such registered employer as it thinks
suitable. There is nothing in the Scheme
to indicate that the allotment once made
is irrevocable or cannot be changed”.
Thus, in our opinion, the issue has been
conclusively answered by the Division Bench in the
case of Suraksha Rakshak and General Kamgar Union
(supra) and needs no further elaboration.”
21. Here again, reference was made to Vizagapatnam Dock
Labour’s case (supra) and held that there was conceptual difference
between the Act and the Scheme involved in that case and the case
at hand.
22. As noted above, four Writ Petitions had been filed primarily on
four grounds. The High Court by the judgment after referring to the
earlier judgments held that the power of allotment clearly included
within its power to recall, re-allot and transfer of Security Guards.
In this context, reference was made to Section 1(4) of the Act to
25
which earlier also reference had been made by the Division Bench
in noting that its application was excluded in respect of direct
employees and therefore the argument of direct employment if
accepted would deprive the Security Guards of the protection under
the Act. Second ground related to the stand that on allotment
Security Guard becomes a direct employee of the principal
employer. Here again, after referring to the judgment of Justice
P.B. Sawant and a decision of this Court in Security Guards Board
v. State of Maharashtra (1987 (3) SCC 413) it was held that the
provisions for seniority, promotion and transfer in Clause 16 of
1981 Scheme would be rendered ineffective and would cause great
harm to guards if they were denied the benefits of common pool
seniority and promotion merely because of a fortuitous allotment in
the particular principal employer. The other two grounds related to
Contract Labour (Regulation and Abolition) Act, 1970 (in short
‘Contract Labour Act’) and the rules framed thereunder.
23. The High Court referred to an earlier petition filed by the same
appellant namely, Krantikari Suraksha Rakshak Sangathana v.
S.V. Naik (1993 (1) CLR 1003) and held that the Act was a self
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contained and complete code and unreported judgment of Justice
P.B. Sawant as he then was and Justice M.P. Kania dated
15.1.1988 in Writ Petition No.1172 of 1987 held that the Act is a
special statute which not only prevails over the Contract Labour Act
but further that the Act also prevails because of Article 254 (2) of
the Constitution.
24. Apart from the fact that in several earlier petitions the
appellant- Union had unsuccessfully come up with very same pleas
and the orders had attained finality. Issue cannot be permitted to
be indirectly raised in the manner done. The Act and the schemes
make it clear that they apply only to security guards who are “Pool
Security Guards”. As stated earlier the Act and the Scheme clearly
constitute a complete and self contained code which covers private
Security Guards. Section 1(4) of the Act and various provisions of
1981 and 2002 Schemes make it clear that the arguments that the
guard once allotted with the principal employer he becomes the
direct and regular employee of the principal employer is without
any substance. As rightly noted by the High Court the provisions of
the Act and the statute make it clear that the Board’s power of
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allotment carries with it the implicit and inherent power to recall,
re-allot and transfer a guard from one principal employer to
another. It needs no emphasis that the power to appoint carried
with it the inherent power to terminate. Therefore, the power to
allot necessarily carries with it the inherent power to re-allot or
cancel the allotment. It is also seen that both under the 1981 and
2002 Schemes certain clauses provide for transfer of guards. It is
also significant that under both the Schemes there is provision for
continued supervision, control, disciplinary powers and powers of
termination vested in the Board.
25. As has been rightly contended by learned counsel for the
respondents, Sections 19, 20 and 21 of the Act specifically provide
for application of certain Act to Security Guards. In other words,
these specific statutes have application. Other statutes are dealing
with employer and employee relationship and the rights thereunder
which are made applicable to Security Guards. To put it differently,
only the statutes clearly indicated are applicable to Security
Guards. Other statutes are clearly excluded.
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26. Looked at from any angle, the appeals are without merit,
deserve dismissal which we direct. No costs.
…………………………….…….J.
(Dr. ARIJIT PASAYAT)
…………………………….…….J.
(LOKESHWAR SINGH PANTA)
…………………………….…….J.
(P. SATHASIVAM)
New Delhi,
August 25, 2008
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