Bombay High Court
Maharashtra Rajya Suraksha Rakshak And ... vs State Of Maharashtra And Ors. on 23 November, 1990
Equivalent citations: (1994)IIILLJ946BOM
JUDGMENT Tipnis, J.
1. This petition filed by a registered union, namely the Maharashtra Rajya Suraksha Rakshak and General Kamgar Union, challenges the validity and legality of the Notification issued by the Government of Maharashtra on 28th of March 1990 under Section 23 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. State of Maharashtra is imp leaded as Respondent No. 1 while the Security Guards Board for Greater Bombay and Thane District is Respondent No. 2. Respondents 3 to 31 are various private security agencies mentioned in the Notification impugned in this petition.
2. Before the petition could be heard Shri Kurup appearing for some of the respondent - security agencies as also Shri Toprani appearing for Respondent No. 16 raised preliminary objections not for the maintainability of the petition but regarding the hearing of the petition. The first objection raised was that Shri K.K. Singhvi, the learned Counsel appearing for the petitioners, should not be permitted to argue the petition on behalf of the petitioners De-cause on the earlier occasions in matters connected with this Act, Shri Singhvi had represented the State of Maharashtra. We failed to find any merit in this objection. We do not think that it is for the Court or for the contestings respondents to decide as to who should argue the petition on behalf of the petitioners. It is not the claim of Shri Kurup and Shri Toprani that Shri Singhvi had appeared for any of the private agency on any earlier occasion. The second objection is regarding the placement of the petition on the roster of this board. This objection is also frivolous and without any merit. It is to be noted that this petition initially came up for admission before the Bench consisting of Shri Justice Pratap and Shri Justice Sawant who were hearing the writ petitions for admission. It appears that certain objections were raised before the said Bench and the Division Bench directed that the petition should be posted before some other Court. Thereafter, the matter was placed before the learned Chief Justice and the learned Chief Justice directed the matter to be placed before a Division Bench consisting or Shri Justice Pendse and Shri Justice Da Silva who were also hearing the writ petitions. The petition was accordingly admitted prior to Diwali vacation, i.e. on 8th of October, 1990. At the time of admission, the petitioner prayed and applied for interim stay but the Bench declined to grant any interim stay as it made the Rule returnable peremptorily on 12th of November 1990. The order of the Bench is as under:-
"No interim relief at present. In case the petition could not be heard by end of November 1990, liberty to apply for interim relief.
Thus, it is clear that the interim relief was rejected in view of the fact that the petition was peremptorily fixed for final hearing. It appears that the matter appeared before the Division Bench taking order matters on the appellate side as there were some office objections. It is thereafter that this petition was placed on Board at Sr. No. 1A on 19th of November, 1990 and reached hearing after the routine admission work was over. In view of these facts, we fail to appreciate any merit in the contention of Shri Kurup and Shri Toprani regarding the hearing of this petition. The third objection is rather unfortunate. Learned Counsel submitted that the matter should be heard by some other Court because one of us (Pendse, J.) had heard earlier petitions when the Government had declined to grant exemption to some of the security agencies who are respondents to this petition. This petition has nothing to do with the earlier petitions and, in fact, we find it highly improper for the Counsel to rise such an objection. We depreciate such a practice.
3. In order to appreciate the controversy raised by this petition, it is necessary to briefly trace the history in the matter. As it was found that the contract labour system in various industries and establishments had become the rule of the day and as it was further found that the Security Guards employed by the private agencies were exploited in more than one way on the basis of a recommendation of a committee specially appointed to investigate the matter the State of Maharashtra promulgated the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Ordinance of 1981 which was subsequently made into an Act known as "Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act of 1981". The private security agencies challenged the constitutional validity of the said Act. The learned Single Judge on the original side of this Court repelled the constitutional challenge and held the Act constitutionally valid. The judgment of this Court in the said case of Tradeswell Security v. State of Maharashtra is reported in 84 Bombay Law Reporter at Page 608. The decision of the learned single judge was challenged before the Division Bench of this Court. The Division Bench of this Court dismissed the appeal and ultimately the matter went upto the Supreme Court, but the Supreme court also dismissed the Special Leave Petition in limine.
4. After this first round, it appears that private security agencies started making applications under Section 23 of the Act for exemption from the provisions of the Act. There were about 139 such agencies. The petitioners have averred that the then Deputy Chief Minister of Maharashtra in about 1983 made a statement in a press conference to the effect that no contractor will get exemption from the provisions of the Act. The petitioners have further averred that similar assurance was also made publicly on 27th of March, 1983 by the then Chief Minister of Maharashtra. Out of about 139 agencies who made applications for exemption, the Advisory Committee constituted under Section 15 of the Act recommended grant of exemption to some 21 agencies. It appears that the Commissioner of Labour recommended grant of exemption to only 4 agencies. On 28th of June 1984 the Government of Maharashtra rejected all the applications for exemption on the ground that grant of such exemption will not be in the interest of Security Guards.
5. Against the decision of refusal to grant exemption under Section 23, it appears that about 25 security agencies filed writ petitions on the original side of this Court. The said writ petitions were finally heard by one of us (Pendse J) and the learned Judge by his judgment and order dated 11th of July 1985 was pleased to dismiss all the petitions mainly on the ground that the protection available to the Security Guards under Clauses 32 and 33 of the scheme prepared under the Act may not be available to the Security Guards employed by the private agencies. Aggrieved by the said decision, the private agencies involved in those petitions preferred appeals to the Division Bench and the Division Bench allowed the appeals and gave direction to the State Government to consider afresh the application for exemption made by the private security agencies on their individual merits. The Board, namely the Security Guards Board for Greater Bombay and Thane District, filed Special Leave Petitions against the said decision of the Division Bench to the Supreme Court of India. By judgment dated 28th of April 1987, , the Supreme Court allowed the appeals and set aside the judgment of the Division Bench of this Court. We will have occasion to refer to this judgment in great detail hereinafter.
6. The petitioners have averred that while pronouncing the judgment, at the request of the Counsel appearing for the private security agencies, the Supreme Court granted 90 days' time to these agencies to wind up their business. It is further averred by the petitioners that despite this decision the private security agencies continued to carry on their business even after 90 days. It appears that thereafter applications were made on behalf of the Security Guards for exemption from the provisions of the Act on the ground that the Security Guards were in the enjoyment of benefits which were, on the whole, no less favourable to them than the benefits provided by or under the said Act and the Scheme under the Act. It is the allegation of the petitioners that even during the pendency of these applications the State Government allowed private security agencies to carry on their business and failed to take requisite action against them under the provisions of the Act. It is further alleged by the petitioners that, on the contrary, the State Government gave directions to the Board not to prosecute the private security agencies who had applied for exemption. The petitioners have relied upon one such direction given by Shri Ramakant Asmar, Asstt. Secretary, Government of Maharashtra, Industry, Energy & Labour Department, by letter dated 5th of July, 1989 addressed to the Security Guards Board regarding Security Guards employed at ISKON through M/s. Hindustan Security Force. On 23rd of May, 1985 the State Government by a Notification re-constituted the Advisory Committee and it is the allegation of the petitioners that the representatives of the petitioners who were on the said Advisory Committee were eliminated. We must mention here that it is the case of the State Government that the new Advisory Committee was constituted after the expiry of the tenure of the earlier Committee and the Advisory Committee was constituted strictly in accordance with the provisions of Section 15 of the Act.
7. In the very first meeting of the said new Advisory Committee held on 12th of January, 1989 it appears that the members of the Advisory Committee decided that in respect of applications for exemption under Section 23 of the Act and regarding the proposal from the State Government, all the powers for further implementation and taking final decision were given to the Hon'ble Chairman of the Advisory Committee. The Hon'ble Chairman of the Advisory Committee was the Minister for Labour, Government of Maharashtra, who was also the Chairman appointed by the State Government while constituting the Advisory Committee under Section 15 of the Act.
8. It is further alleged by the petitioner that the Hon'ble Minister for Labour directed the Chairman of the Security Guards Board not to make any deduction from the wages of the Security Guards for the benefit of the petitioner union. Thereupon one Bhartiya Suraksha Rakshak Union filed a writ petition being Original Side Writ Petition No. 3329 of 1988 praying for a direction against the Board not to make any deduction from the wages of the Security Guards for the benefits of the petitioner-union. By order dated 31st of October, 1988 Shri Justice Daud, who heard the said petition, permitted the Board to make deductions only of those Security Guards who had assented in writing and who had not withdrawn their assent in writing at the time of making ex-gratia payment. Appeal filed by the Bharatiya Suraksha Rakshak Union against this order of Shri Justice Daud was summarily dismissed by the Division Bench of this Court. It appears that on 10th of February 1989 the State Government directed the Board not to make any deductions except the statutory one from the payment of Security Guards till the matter was finally decided by the judiciary. This order was challenged by preferring. Writ Petition No. 279 of 1989 filed by the petitioners and the learned single Judge passed an order dated 28th of February 1989 directing the Board to make deductions from the wages of Private Security Guards who were members of the petitioner-union and who submitted authority letters authorising the Board to make deductions from their wages towards annual membership, donations, etc., for being paid to the petitioner-union.
9. By draft Notification issued by State Government on 17th of April, 1989, the Government invited objections and suggestions to the proposed grant of exemption for a period of three years to the Security Guards mentioned in column-2 of the schedule appended thereto supplied by the private security agencies mentioned in Column 3 thereof. It appears that the petitioner-union preferred their objections. By final Notification issued on 28th of March, 1990 under Section 23 of the Act the Government of Maharashtra exempted classes of Security Guards mentioned in Column-2 of the Schedule supplied by the Private Security Guards agencies mentioned in column 3 of the Schedule on the establishment of principal employers in the areas of Municipal Corporation of Greater Bombay and Thane District.
10. The aforesaid Notification issued by the State Government under Section 23 of the Act is challenged in this petition. Shri Singhvi, the learned Counsel appearing for the petitioners, submitted that exemption contemplated under the provisions of Section 23 is in respect of all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments. Shri Singhvi submitted that under the provisions of Section 23 it was not competent for the State Government to issue the impugned Notification. Shri Singhvi in this behalf very strongly relied on the judgment of the Supreme Court reported in 1987 I CLR 424:1988-I Lab. LJ 146. Shri Singhvi next submitted that the issuance of Notification is not bona fide exercise of powers under Section 23 of the Act but is a mala fide exercise of powers. Shri Singhvi referredto certain facts and circumstances in support of his submission that the Notification as issued suffers from mala fides. Shri Singhyi further submitted that the Notification is also, bad inasmuch as the same was issued without requisite consultation with the Advisory Committee under the provisions of Section 23 of the Act. He submitted that the Advisory Committee constituted under Section 15 of the Act has some important and responsible role to play and requirement of consultation with the said Advisory Committee before issuance of Notification under Section 23 is not an idle formality but a very important requirement. Shri Singhvi submitted that apart from this objection to the newly constituted Advisory Committee, the record shows that this Advisory Committee ultimately in a meeting held on 12th of January 1989 completely abdicated its function in favour of the Chairman of the Committee who happens to be nominated by the State Government and in the instant case was the Minister for Labour, Government of Maharashtra. Shri Singhvi, therefore, submitted, as a matter of fact, there was no consultation at all as required by the provision of Section 23. Shri Singhvi further submitted that the Notification is also bad inasmuch as no enquiry at all was conducted with a view to satisfying or forming an opinion that all such Security Guards or class or classes of Security Guards are in the enjoyment of benefits which are, on the whole, not less favourable to such Security Guards than the benefits, provided by or under this Act or any Scheme made thereunder. Shri Singhvi, therefore, submitted that the Notification issued without such effective enquiry is bad in law. Shri Singhvi lastly submitted that even if the record is perused the Security Guards employed by the respective private agencies cannot be said to be in the enjoyment of benefits which are, on the whole, not less favourable to such Security Guards than the benefits provided under the Act or by the Scheme under the Act. For all these reasons, Shri Singhvi urged that the impugned Notification is totally illegal and invalid and should be so declared.
11. The petition is opposed by the State of Maharashtra. Shri Gursahani, the learned Sr. Counsel appearing for the State of Maharashtra, submitted that on proper reading of provisions of Section 23 as also the decision of the Supreme court , no fault can be found with the impugned Notification. Shri Gursahani submitted that the mention of specific private security agencies in column-3 of the Schedule is only for the purposes of identification of particular Security Guards in whose favour the exemption is granted and it is not proper to say that the exemption is granted in favour of any of the private security agencies mentioned in the Notification. Shri Gursahani submitted that exemption is given to the class of Security Guards mentioned in the Notification who were working in the factories or establishments, but only employed by the named security agencies mentioned in column-3 of the Notification. Shri Gursahani further submitted that though Advisory Committee in its meeting held on 12th of January 1989 had delegated its powers to the Chairman, this was a conscious decision after the matter was discussed in the meeting and there is nothing illegal or improper in the procedure followed. If properly constituted Advisory Committee in its wisdom decides to leave the decision to its own Chairman, it cannot be said that the Advisory Committee was never consulted. Shri Gursahani further submitted that the State Government has taken every care to go through all the materials supplied by the applicant-Security Guards as also the material collected during the investigations and from the enquiry from various security agencies, and after application of mind the State Government reached the conclusion or formed the opinion that the benefits available to the Security Guards employed by the named private agencies were not, on the whole, less favourable than the benefits provided by or under the Act or any Scheme made thereunder. Shri Gursahani, therefore, submitted that no fault could be found with the issuance of the impugned Notification.
12. Smt. Lata Desai, the learned Counsel appearing for the Board constituted under the Act, submitted that it was for the State Government to consider the matter under provisions of Section 23 and the State Government, having considered the matter, had issued the Notification and, therefore, the Board has nothing more to say in the matter.
13. Shri Kurup, the learned Counsel appearing for most of the respondent-private agencies, who are mentioned in column-3 of the Schedule to the Notification, submitted that the Notification is issued validly and properly in bona fide exercise of powers by the State Government under provisions of Section 23 of the Act. Shri Kurup submitted that the Notification is in accordance with the decision of the Supreme Court referred to above. Shri Kurup brought to our notice the definition of the word "establishment" in the Act as also the definition of "establishment" under Section 2(8) of the Bombay Shops and Establishments Act. Shri Kurup submitted that in view of this definition, the private agencies mentioned in the Notification would in law be establishment within the meaning of the said word used in Section 23. Shri Kurup, therefore, submitted that validly and legally private security agencies, like the one mentioned in the Notification, could be granted exemption from the provisions of the Act under provisions of Section 23 of the Act. Shri Kurup also submitted that the Security Guards, who are exempted from the operation of the Act by the impugned Notification, are not made parties to the petition and no order should be passed without hearing them. Regarding consultation with the Advisory Committee, Shri Kurup submitted that initially the Advisory Committee had recommended about 25 private agencies for grant of exemption. At that lime all the material was considered and that recommendations should hold good also for the purposes of the present Notification. According to Shri Kurup the consideration and recommendation of the Advisory Committee given earlier can be taken into consideration. Shri Kurup further submitted that exemption under Section 23 of the Act should be read in the context of the provisions of Section 22 and unless private security agencies employing Security Guards are held entitled to the grant of exemption under the provisions of Section 23, the provisions of Section 22 would not be effective or meaningful. Shri Kurup in this behalf relied on certain portion of the judgment of the Supreme Court in the above referred case. Shri Kurup further submitted that the several private agencies mentioned in the Notification were governed by almost all the labour legislations, in addition to that several stringent conditions were put in the Notification itself observance of which was an essential condition of the exemption, which, in effect, completely protected the interests of the Security Guards. Shri Kurup made reference to several provisions of the Industrial Disputes Act as also provisions of Shops and Establishments Act and Minimum Wages Act with a view to pointing out that the name private agencies employing Security Guards were covered by the provisions of the labour legislation and as such the interests of the Security Guards employed by the agencies were fully protected and guaranteed under the various provisions of the labour legislation, Shri Kurup attempted to show that in comparison to the benefits and advantages which the Security Guards are entitled while in the employment of most of the private agencies named in the Notification, the benefits and advantages available under the Act or under the Board and the Scheme are less favourable. Shri Kurup lastly submitted that if some defects are found in the Notification the same could be cured but the entire Notification should not be quashed inasmuch as quashing of the said Notification at this juncture would affect at least about 3,000 Security Guards employed by these private agencies and this consequence would be avoided by upholding the validity of the Notification or curing the defects in the said Notification.
14. Shri Toprani, the learned Counsel appearing for Respondent No. 16, adopted the arguments of Shri Kurup. He mainly contended that no Security Guard in whose favour exemption is granted is either impleaded or is before the Court and quashing of the Notification would result into great hardship to the Security Guards in whose favour the Notification is issued. Shri Ravel, the learned Advocate, whom we allowed to address as a Counsel for one of the interveners, namely Maharashtra Suraksha Rakshak Association representing some of the Security Guards allegedly exempted by the Notification, submitted that by the very definition Security Guard is related to private agency as only such Security Guards who are employed by the private agencies and supplied to various establishments and factories are covered by the definition. Shri Ravel submitted that some of the Security Guards in the employment of various private agencies have put in 12 to 13 years' service and at least from, human point of view the Notification should not be quashed. We also heard Shri Premji B. Sawant on behalf of one of the trade unions on behalf of the security guards. Shri Sawant supported the petitioners and adopted the arguments of Shri K.K. Singhvi.
15. As we are of the opinion that the main controversy in the matter is completely covered by the decision of the Supreme Court in the case of Security Guards Board, Bombay & Thane v. Security & Personnel Services Pvt. Ltd. and Ors. reported in 1987 I CLR 424 : 1988-I Lab LJ 146 and further as the said judgment fully analyses the provisions of the main Act as also the Scheme under the Act, we find it unnecessary to make detailed reference either to the provisions of the Act or to the Scheme.
16. In paragraph 7 and 8 of the aforesaid judgment, the Supreme Court has stated as under:
"7. It is obvious from Section 1(4) and the very definition of 'Security Guard' that the Act and, therefore, the Scheme are not applicable to persons who are direct and regular employees of a factory or establishment but are applicable only to persons working in any factory or establishment who were engaged or are to be engaged through an agency or agent and to persons who though not employed by the employer or agency or agent are working with their permission or under an agreement with them. Section 23, we have seen, provides for exemption from the operation of all or any- of the provisions of the Act or any scheme made thereunder of "all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments". The basic conditions to be satisfied is that the State Government should be of the opinion that "all such Security Guards or such class or classes of Security Guards are in the enjoyment of benefits, which are on the whole not less favourable to such Security Guards than the benefits provided by or under this Act or any Scheme made thereunder". A close Scrutiny of Section 23, particularly in the fight of Section 1(4) read with the definition of 'Security Guard', makes it clear that the exemption is not in respect of an agency or an agent or even a factory or establishment but in respect of all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments. In other words, the exemption is in regard to 'Security Guards', employed in any factory or establishment or in any class or classes of factories or establishments. The exemption may be in respect of all the Security Guards employed in a factory or establishment or in a class or classes of factories or establishments or in respect of a class or classes of Security Guards so employed. For example, all Security Guards employed in a factory may be exempted or Security Guard of a particular grade or doing a particular type of work in factory may be exempted. Again all Security Guards employed in a class of factories, say Textile Mills may be exempted. All Security Guards in all Textile Mills doing a particular type of work or drawing a particular scale of pay may be exempted. The co-relationship of the Security Guards or classes of Security Guards who may be exempted from the operation of the Act is to the factory or establishment or class or classes of factories or establishments in which they work and not with the Agency or agent through and by whom they are employed. This analysis has however no bearing on the question of locus "standi of the persons who may seek the intervention of the State Government by the issue of Notifications for exemption. Obviousjy the Security Guards or classes of Security Guards employed in a factory or establishment may apply to the Government to exempt them from the operation of the Act. Similarly Security Guards or classes of Security Guards employed in classes of factories or establishments may apply to the Government to exempt them from the operation of the Act. Again a factory or an establishment or a class or classes of factories or establishments may apply to the Government to exempt Security Guards employed in their factories or establishments from the operation of the Act. Though agencies or agents do not enter the picture directly, since the very definition of Security Guards means persons engaged or to be engaged through an agency or agent, it must follow that where Security Guards have been engaged or are to be engaged through them in any factory or establishment or a class of factories or establishments, such agency or agent may also apply to the Government, not to exempt all Security Guards engaged or to be engaged through them but to exempt Security Guards engaged or to the engaged in a factory or establishment or a class of factory or establishments. The question is not one of locus standi at all but which or what class or Security Guards are to be exempted from the operation of the Act and the Scheme. Therefore, we are of the view that even an agency or agent may apply to the Government to grant exemption, but the exemption to be granted by the Government is not to be of any agency or agent but only of Security Guards employed in a factory or establishment or a class or classes of factory or establishments.
8. One of the submissions of the learned counsel was that if Section 23 was read in the light of Section 22 it would follow that an agency could ask for exemption from the operation of the Act of all Security Guards employed through them. We do not see how that follows. All that Section 22 provides in effect is that the rights or privileges of any registered Security Guard shall not be altered to his detriment. It only means that if hitherto as an employee of the agency, the terms and conditions of his services were more attractive on the whole than the terms and conditions of service offered by the Act and the Scheme under the factory or establishment, the original terms and conditions of service will be preserved and become applicable to their service under the factory or establishment. It was submitted by the learned counsel that the Act and the Scheme did not provide for termination of the contract of employment between the agency and the Security Guard or for the transfer of the services of the Security Guards from the employment of the Agency to that of the factory or establishment. We do not agree with the submission. By necessary implication, the services of the Security Guards will stand transferred on allotment to the service of the factory or establishment on allotment to it by the Board. It is in that fashion, among other things, that security of service is secured to the Security Guards".
17. It will be obvious from the aforesaid observations of the Supreme Court that Section 23 provides for exemption from the operation of all or any of the provisions of the Act or any Scheme made thereunder of all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories and establishments; that the exemption is in regard to the "Security Guards" employed in any factory or establishment or in any class or classes of factories and establishments; that the co-relationship of the Security Guards or classes of Security Guards who may be exempted from the operation of the Act is to the factory or establishment or class or classes of factories or establishments in which they work and not with the agency or agent through and by whom they are employed. In paragraph-8, in fact, the Supreme Court has rejected the submission that reading Section 23 in the light of Section 22 an agency could ask for exemption from the operation of the Act of all Security Guards employed through them. To our mind, it is clear enough that submissions made on behalf of the State Government as also on behalf of the private security agencies were clearly negatived by the Supreme Court in the aforesaid judgment. The decision clearly lays down that there cannot be any exemption to the agency or agent through and by whom the Security Guards are employed.
18. Now, if we look to the Notification impugned in this petition, it is clear that the State Government has exempted the classes of Security Guards mentioned in col-umn-2 of the Schedule appended to the Notification supplied by private Security Guard/agencies mentioned in column-3 thereof on the establishment of principal employers in the areas of Municipal Corporation of Greater Bombay and Thane District registered or to be got registered within the time stipulated in Conditions No. II therein. Thus, it is clear that the impugned Notification grants exemption from the operation of the Act to the Security Guards mentioned in column-2 only and only if they are in the employment of the private security agencies mentioned in column-3 of the Schedule. In other words, the class of Security Guards exempted from the operation of the Act under the Notification is a class of Security Guards who are in the employment of the security agencies or who may in future join the employment of the security agencies mentioned in column-3. If any Security Guard leaves the employment of any of the agency mentioned in column-3 he ceases to be exempted. On the other hand, if any Security Guard joins the employment of the agency he is covered by the exemption. The Notification has no reference at all to any establishment or factory in which ultimately the Security Guards employed through the private agencies will be working. Read, in any manner, the Notification leaves no doubt that it is clearly in favour and in respect of private security agencies mentioned in column-3 of the Schedule appended to the Notification.
19. Reading provisions of Section 23 and the decision of the Supreme Court referred to above, it is impossible to hold that the State Government was competent to issue such a Notification in exercise of powers under provisions of Section 23 of the Act. It is also not possible to accept the submission of Shri Kurup that private security agencies mentioned in the Notification are establishments under the definition and, therefore, valid exemption. Notification could be issued under provisions of Section 23 of the Act. Apart from the fact that this submission is contrary to the decision of the Supreme Court referred to above, it is clear that the exemption must be in respect of Security Guards employed in any factory or establishment or any class or classes of factories or establishments. So the word "establishment" here means the establishment where the Security Guard will be actually working as a Security Guard as such. The security agencies mentioned in column-3 of the Notification are employing Security Guards not for the purposes of working with them but for the purposes of working with establishments or factories or other places. As such it is not possible to accept the submission of Shri Kurup that private agencies employing Security Guards would be establishments within the meaning of the word "establishment" used in Section 23 of the Act.
20. We are of the opinion, that in view of the aforesaid discussion the impugned Notification could not have been issued in exercise of powers of the State Government under Section 23 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, and the same deserves to be quashed.
21. The submission of Shri Singhvi regarding the absence of proper, valid and effective consultation with the Advisory Committee, in view of the facts to which we have already made reference, has also great force. As stated earlier, Section 15 of the Act empowers the State Government to constitute the Advisory Committee to advise it upon such matters arising out of administration of the Act or the Scheme made under the Act. The members of the Advisory Committee are required to be appointed by the State Government. However, provisions of Section 15 prescribe that the Advisory Committee shall include an equal number of members representing employers, the Security Guards and the legislature of the State and the members representing State Government shall not exceed one-fourth of its total number of members. Provisions of Section 23 empower the State Government, after consulting the Advisory Committee, by Notification to exempt from the operation of all or any provisions of the Act or any Scheme made thereunder, all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments. In this behalf it is impossible to accept the submission of Shri Kurup that the advice given by the earlier Advisory Committee should hold good for the issuance of the present Notification. As stated earlier, despite the recommendation of the Advisory Committee in respect of about 25 private/security agencies the State Government took a decision of not exempting them and petitions challenging the said decision were dismissed and the said decision was ultimately upheld by the Supreme Court. As such, by no stretch of imagination, the earlier consultation with the prior Advisory Committee could be sufficient as consultation for the purpose of issuing the impugned Notification. It may be mentioned in fairness to Shfi Gursahani that on behalf of the State Government he did not make such a submission.
22. Now, the consultation with the Advisory Committee, in our opinion, looking to the position and role of the Advisory Committee under the provisions of the Act, is extremely important. Undoubtedly the State Government is not bound by the suggestions or advice or consultation with the Advisory Committee. But provisions of Section 23 definitely demand that before forming the opinion the State Government must be informed of the views of the Advisory Committee. Any opinion formed without being informed or without the Advisory Committee being consulted will not be sufficient to exercise the powers under provisions of Section 23. In the facts of the case before us, as stated earlier, in the very first meeting of the Advisory Committee, the Advisory Committee completely left the matter in the hands of the Chairman, namely the Hon'ble Minister for Labour, Government of Maharashtra. In our opinion, this is total abdication of the function of the Advisory Committee and the formation of opinion by the State Government without effective consultation with the Advisory Committee would also invalidate any Notification issued under Section 23 of the Act.
23. So far as the submission of Shri Singhvi that no proper enquiry at all was made or investigation conducted for ascertaining whether the benefits enjoyed by the Security Guards employed by the private agencies are not less favourable than the benefits provided by or under the Act or by the Board or under the Scheme is concerned. Shri Gursahani fairly produced the entire record before us and though much could be said regarding the manner in which the information was given in several applications, in view or our finding on the very first submission we do not find it necessary to go any further in the matter on the aspect as to whether the terms and benefits afforded by the private agencies are not less favourable than those offered under the provisions of the Act or by the Board or under the Scheme.
24. So far as the fear expressed by the learned counsel appearing for the private security agencies regarding the effect of the Notification being declared invalid upon the Security Guards employed by the private security agencies is concerned, Shri Singhvi, the learned Counsel appearing for the petitioners, brought to our notice paragraph 11 of the judgment of the Supreme Court referred to above wherein the assurance by the learned Counsel appearing for the Board that every individual registered Security Guard who was previously working in a factory or establishment will be allotted to the same factory or establishment and if the total package of the terms and conditions of his service were better than the terms and conditions offered by the Board such persons would be employed on the previous terms and conditions or service, was made part of the order of the Hon'ble Supreme Court. In view of this position, the fear expressed by the learned Counsel is without any basis.
25. In the result, the petition succeeds. The Notification dated 28th of March 1990 issued by the State of Maharashtra under provisions of Section 23 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare ) Act, 1981 (Exhibit-F to the petition) is quashed and declared to be invalid and inoperative. The Rule is made absolute in terms of prayer (a) of the petition. Respondent No. 1 shall pay the costs of the petition to the petitioners.