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

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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

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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

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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

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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

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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

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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.  

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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

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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;

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(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

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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

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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.  

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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

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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

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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;

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(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:

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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.

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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

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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

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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

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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

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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

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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:  

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"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

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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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