Krantikari Suraksha
Rakshak Sanghatana Vs. Bharat Sanchar Nigam Ltd. & Ors. [2008] INSC 1420
(25 August 2008)
Judgment
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)
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 there under the security guards, on allotment by the Board to an
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
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 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.
Under the said Act,
as amended, with effect from 29th 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 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 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.
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;
(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.
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 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 Mr. Devitre, Ld. Counsel for the 1st 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.
8. The Secretary of
the 2nd 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 Board sending a fresh allotment. The 2nd 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 registered
employers. The 2nd 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 the 4th 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;
(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:
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. and Ors. (Writ Petition No.2671 of 1992 dated 23rd March, 1993 per
Smt. Sujarat Manohar and S.H. 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 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, dated
13th July, 1990 and of the Industrial Court in its order dated 4th December,
1990 taking the view that a complaint under the Maharashtra 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.
The order of the
Industrial Court dated 16th December, 1992 in Complaint (DLP) No.342 of 1992
holding that the complaint was not maintainable 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 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 was withdrawn on 4th of July 1988
was immediately re-allotted on 5th 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 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 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 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.
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.
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