Case Note & Summary
The Bombay High Court, in its Civil Appellate Jurisdiction, heard three writ petitions filed by trade unions namely Karantikari Suraksha Rakshak Sanghatana, Maharashtra Rajya Suraksha Raksha & General Kamgar Union, and Laxman Gopal Bhosale & Ors., challenging the constitutional validity of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Act, 1996. The petitioners prayed for the amending Act to be declared illegal and unconstitutional and to be struck down. The challenge was mounted on two main grounds. First, it was contended that under the unamended Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, as interpreted by the courts, agencies or contractors were not permitted to provide security guards, and that employment had to be provided only through the Board constituted under the Act. The amending Act allegedly brought back and permitted agencies and contractors to provide security guards, thereby being a retrograde piece of legislation violative of Articles 14 and 21 of the Constitution and contrary to the directive principles contained in Articles 38, 39, 41, 42, 43 and 46. Second, the petitioners argued that the amending Act was repugnant to the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, an earlier law made by Parliament occupying the same field, and since no assent of the President of India was obtained for the amending Act, it was unconstitutional under Article 254(2) of the Constitution. The original Act of 1981 had obtained Presidential assent because it dealt with contract labour, a subject in the concurrent list. The amendment was claimed to reduce the rights of security guards, necessitating fresh assent. The State of Maharashtra, as the principal respondent, filed affidavits in reply opposing the petitions. The Security Guards Board constituted under Section 6 of the 1981 Act, contracting agencies, and principal employers were also joined as respondents. The court referred to the earlier judgment of a learned Single Judge in M/s. Tradesvel Security Services Pvt. Ltd. v. State of Maharashtra (1982), which had held the unamended Act valid and interpreted that the exemption under Section 23 could be availed only at the initial stage of the Act’s application and not thereafter. The Supreme Court decision in Security Guards Board for Greater Bombay & Thana Distt. v. Security and Personnel Service Pvt. Ltd. (1987) was also noted as relevant. The statement of objects and reasons of the amending Act stated that it sought to remove ambiguity and clearly establish the relationship of security guards with the agencies that directly employ them. The court scrutinized the pre-amendment definitions of ‘agency’, ‘employer’, and ‘principal employer’ under Section 2, and the provisions of Sections 19, 20, 21, and 23 of the 1981 Act. The hearing was concluded and judgment was reserved on 7 July 2006, with the final pronouncement made on 10 October 2006.
Headnote
A) Constitutional Law - Fundamental Rights and Directive Principles - Articles 14, 21, 38, 39, 41, 42, 43, 46 of the Constitution of India, 1950 - The petitioners contended that the amending Act was a retrograde piece of legislation that violated the fundamental rights under Articles 14 and 21 and was contrary to the directive principles enshrined in Articles 38, 39, 41, 42, 43 and 46, as it permitted agencies and contractors to provide security guards, allegedly reducing the rights of security guards. (Paras 2, 3)
B) Constitutional Law - Repugnancy under Article 254(2) - Article 254(2) of the Constitution of India, 1950 - The petitioners argued that the amending Act was repugnant to the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, a Central legislation occupying the same field, and since no fresh Presidential assent was obtained, the amending Act ought to be declared unconstitutional. The court was called upon to examine whether the amendment required a separate assent to remain valid. (Paras 2, 6)
C) Labour Law - Regulation of Private Security Guards - Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, Sections 2(1), 2(3), 2(8), 3, 6, 8, 19, 20, 21, 23 - The court examined the scheme of the 1981 Act, which aimed to regulate employment and welfare of private security guards through a Board, and the challenge to the amendments to definitions and exemption provisions. The earlier interpretation in Tradesvel Security Services Pvt. Ltd. v. State of Maharashtra had held that exemptions were available only at the initial stage and not after the Act became applicable to a factory or establishment, a position which the amendment sought to change. (Paras 4, 7, 8)
Issue of Consideration
Whether the Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Act, 1996 is unconstitutional being violative of Articles 14 and 21 of the Constitution, and repugnant to the Contract Labour (Regulation and Abolition) Act, 1970 under Article 254(2) for want of Presidential assent
Law Points
- challenge to constitutional validity of state amendment act
- violation of Articles 14 and 21 of the Constitution
- repugnancy to Contract Labour (Regulation and Abolition) Act
- 1970
- absence of Presidential assent under Article 254(2)
- interpretation of Maharashtra Private Security Guards Act
- 1981
- exemption provisions under Section 23
- regulation of private security guards
- workers' rights under directive principles
Case Details
2006 LawText (BOM) (10) 76
Writ Petition No. 5046 of 2000, Writ Petition No. 5231 of 1999, Writ Petition No. 5040 of 2000
H.L. Gokhale, J., J.H. Bhatia, J.
Mr.Sanjay Singhavi, Ms.Jane Cox, Ms.Tanu Mehta Tiwari, Mr.S.S. Pakale, Ms.Ranjana Todankar, Ms.Sonali, Mr.Prakash Mahadik (absent), Mr.A.A. Kumbhakoni, Mr.P.M. Mokashi, Mr.N.P. Deshpande, Mrs.Lata Desai, Ms.Pallavi Divekar, Mr.C.U. Singh, Mr.R.D. Suvarna, Mr.P.G. Karande, Mr.K.S. Bapat
Karantikari Suraksha Rakshak Sanghatana (in WP 5046/2000), Maharashtra Rajya Suraksha Raksha & General Kamgar Union (in WP 5231/1999), Laxman Gopal Bhosale & Ors. (in WP 5040/2000)
State of Maharashtra & Ors.
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Nature of Litigation
Challenge to constitutional validity of a state amendment act by trade unions representing security guards
Remedy Sought
Declaration that the Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Act, 1996 is illegal and unconstitutional and its striking down
Filing Reason
The amendment was allegedly retrograde, bringing back agencies/contractors to provide security guards, in violation of fundamental rights and directive principles, and repugnant to the Contract Labour (Regulation and Abolition) Act, 1970 without Presidential assent
Issues
Whether the Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Act, 1996 violates the fundamental rights guaranteed under Articles 14 and 21 of the Constitution and is contrary to the directive principles in Articles 38, 39, 41, 42, 43 and 46
Whether the amending Act is repugnant to the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and, in the absence of Presidential assent, is unconstitutional under Article 254(2) of the Constitution
Submissions/Arguments
Petitioners submitted that the amending Act was a retrograde piece of legislation as it permitted agencies and contractors to supply security guards, contrary to the scheme of the unamended Act as interpreted by the courts, thereby violating Articles 14 and 21 and the directive principles of the Constitution.
Petitioners further argued that the amending Act was repugnant to the Contract Labour (Regulation and Abolition) Act, 1970, and since no fresh Presidential assent was obtained under Article 254(2), it was unconstitutional.
Judgment Excerpts
The main submissions of the petitioners - Trade Unions to put in a nutshell are twofold. (i) The first submission is that under the Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Act, 1981 ('the said Act' for short), as it stood prior to this amendment and as it was interpreted by the Courts, the agencies or the contractors were not permitted to provide the Security Guards and that the employment of the Security Guards who were not the direct employees of the factories or establishments, had to be provided only by the Board constituted under the said Act. It is their contention that this amending Act brings back and permits the agencies or the contractors to provide the Security Guards. The amendment is sought to be challenged as being a retrograde piece of legislation and violative of Articles 14 and 21 of the Constitution of India apart from being contrary to the directive principles contained in Articles 38, 39, 41, 42, 43 and 46 of the Constitution of India. (ii). It is their further contention that the amending Act is repugnant to the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970. This Act is an earlier law made by the Parliament and it occupies the same field and since no assent of the President of India has been obtained to this amending Act, the same be declared as unconstitutional on the touchstone of Article 254(2) of the Constitution of India.
The provisions of the unamended Act and its application came to be challenged earlier by a few Security Agencies. By a judgment rendered by a learned Single Judge (P.B. Sawant, J., as he then was in this Court), the Act was held to be a valid piece of legislation. The said judgment was delivered in the case of M/s.Tradesvel Security Services Pvt. Ltd. vs. State of Maharashtra reported in LXXXIV 1982 BLR 608. The contention of the petitioners is that under this judgment the Security Agencies could obtain an exemption by way of a one time exercise only when this Act came into force. According to them the exemption could be availed of only at the initial stage and not once the Act became applicable to the factory or to the establishment (as seen on pages 657 and 658 of the above-referred Law Report). It is their further contention that under the said judgment once this Act comes into application, there is no scope for exemption to the agencies. Besides, according to them, only the Security Guards can obtain the exemption but not the agencies. This position is stated to have been changed by the amending Act.
Procedural History
Three writ petitions filed by separate trade unions were clubbed together. Affidavits in reply were filed by the State Government. All parties were heard through counsel. Judgment was reserved on 2006-07-07 and pronounced on 2006-10-10.
Acts & Sections
- Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981: 2(1), 2(3), 2(8), 3, 6, 8, 19, 20, 21, 23
- Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Act, 1996:
- Contract Labour (Regulation and Abolition) Act, 1970: 10, 12, 20, 21
- Constitution of India, 1950: Article 14, 21, 38, 39, 41, 42, 43, 46, 254(2)
