SURAKSHA RAKSHAK KAMGAR UNION Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner, Suraksha Rakshak Kamgar Union, has challenged Notification No. SGA 1395/ (2828) Labour 5 dated January 8, 1996 in so far as it relates to the nomination of representatives on the Security Guards Board and the vires of section 6 (3) of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 in this petition under Article 226 of the Constitution of India.

(2.) THE Maharashtra Private Security Guards (Regulation of Employment and Welfare Act, 1981 (for brevity "the Act") was enacted with the avowed object of regulating the employment of private security guards employed in factories and establishments in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare through the establishment of a Board. The Act envisages framing of scheme or schemes providing for registration of employers and security guards in any factory or establishment and provide for the terms and conditions of employment of registered security guards and make provision for the general welfare of such security guards. The principal object of the scheme is for providing regular employment to all security guards and for making provision for the general welfare of the security guards. For administering the scheme, a Board has to be established under section 6. Section 6 reads thus:-

(3.) THE petitioner has challenged the vires of sub-section (3) of section 6 of the Act principally on the ground that no guideline is laid down therein for nominating members on the Board representing the Security Guards and, in the absence of the guideline, the provision is ultra vires. The submission is devoid of any merit. The schemes envisaged under section 3 of the Act have to be framed on the advice of the Advisory Committee constituted under section 15 of the Act. The schemes so formulated have to be administered by the Board. Section 8 of the Act says that the Board shall be responsible for administering every scheme and shall exercise such powers and perform and discharge such duties and functions as may be conferred on it by the scheme. The constitution of the Board for administering the schemes is provided for in section 6. Sub-section (3) of section 6 says that the Board shall consist of members nominated by the State Government representing the employers, the security guards and the State Government. Sub-section (4) of section 6 says that the members representing the employers and the security guards shall be equal in number and the members representing the State Government shall not exceed one-third of the total members representing the employers and the security guards. Combined reading of sub-sections (3) and (4) of section 6 reveals that the representatives of the employers and of the security guards shall be equal in number, and the members representing the State Government will not exceed one-third of the total number of members representing the security guards and the employers. The representation given to the employers and the security guards is two-third of the total number of membership and the remaining one-third is given to the State Government. Section 2 (3) defines "employer" and it says that, in relation to a security guard engaged by or through an agency or agent, it means the principal employer and in relation to any other security guard, the person who has ultimate control over the affairs of the factory or establishment and includes any other person to whom the affairs of such factory or establishment are entrusted, whether such person is called an agent, manager or by any other name prevailing in the factory or establishment. Section 2 (10) defines the term security guard as meaning a person who is engaged or is to be engaged through any agency or agent, whether for wages or not, to do security work or watch and ward work in any factory or establishment and includes any person, not employed by any employer or agency or agent, but working with the permission of, or under an agreement with, the employer or agency or agent but does not include the members of the employers family or any person who is a direct and regular employee of the principal employer. The definitions convey as to who is an employer and who is a security guard. Since the principal object of the Board is to administer the schemes framed under the Act, for making better provisions for the terms and conditions of employment of security guards and their welfare, representation of the security guards on the Board has been provided for under sub-section (3) of section 6. The nomination of members on the Board will be of persons representing the security guards. The nomination has to be made by the State Government and the State Government has to be satisfied that the person so nominated will be in a position to represent the security guards, meaning thereby that their interest will be adequately protected by those representatives. The representative of the security guards so nominated knows the purpose for which the nomination has been made. The guideline is inbuilt in sub-section (3) which says that the nomination will be of persons representing the security guards. The term security guard is defined under the Act. The schemes to be administered by the Board is illustrated in the Act. The representative of the security guards to be nominated knows the object for which he has been so nominated. The strength of the members to be nominated on the Board is stated in sub-section (4) of section 6. The nomination has to be made by the State Government. So, the question of arbitrariness is ruled out. It was observed in (R. S. Dass v. Union of India) A. I. R. 1987 Supreme Court 593, that where a power is vested in a high authority, there is a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations in arbitrary manner the courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power. The power exercisable under sub-section (3) is conferred on the State Government. There is a presumption that it will be exercised in a reasonable manner. Sub-section (3) cannot be invalidated on the simple ground that arbitrariness can be inferred from these provisions. To the contrary, presumption is that the power will be exercised in a reasonable manner by the highest functionary and the arbitrariness is ruled out. If in a given case it is proved that the State Government has acted in an arbitrary manner, the action can be struck down. There is a vital distinction between the provisions of a statute being arbitrary and the action pursuant to those provisions being arbitrary. The statute cannot be invalidated as we cannot presume that the power will be exercised in an arbitrary manner but the action taken under the statute, if hit by arbitrariness, can be struck down. We do not find that sub-section (3) of section is hit by the rule of arbitrariness. We uphold the validity of the statute.