International Airports ... vs International Airports ...
2002 Latest Caselaw 354 Bom

JUDGMENT

S.J. Vazifdar, J.

1. Learned counsel appearing on behalf of the petitioners in the above petitions agreed that the decision in Writ Petition No. 1623 of 1991 will decide the fate of all the above petitions. We have, therefore, confined the consideration of facts to Writ Petition No. 1623 of 1991.

2. The petitioner is a registered trade union, representing, inter alia, 235 security personnel, listed at exhibit A to the petition (hereinafter referred to as "registered security guards or as security personnel"). Respondent No. 1 is a statutory corporation, initially established under the International Airports Authority of India Act, 1971. Under Section 3 of the Airports Authority of India Act, 1994 the Central Government constituted the Airports Authority of India. Under Section 13(1) the undertakings of the International Airports Authority and the National Airports Authority were transferred to and vested in the Airports Authority, Under Section 13(2) the undertaking of the IAAI and NAA included all liabilities and obligations of whatever kind then subsisting in the IAAI and NAA. Respondent No. 2 is a statutory body (hereinafter referred to as "the Board") established under Section 6 of the Maharashtra Private Security Guards (Regulations of Employment and Welfare) Act, 1981 (hereinafter referred to as the "Security Guards Act or SG Act"). Respondent No. 3 is the Union of India.

3. The security personnel were engaged by respondent No. 1 to provide watch and ward services through the Board. The various security personnel had been engaged on different dates between 1987 and July 24, 1991. When the petition was filed on April 25, 1991, exhibit-A listed 125 security personnel.

Pursuant to leave granted by this Court, the petition was amended by adding security personnel to the list at exhibit A on August 2, 1991, and December 5, 1991.

4. Respondent No. 3, i.e. the Union of India, through its Ministry of Labour, issued a notification bearing No. S.O. 779(E), dated December 9, 1976, under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as "the Contract Labour Act"), as also the Contract Labour (Regulation and Abolition) Amendment Ordinance, 1986. The effect of the notification was to prevent respondent No. 1 from enploying contract labour for watching its buildings. The notification has been struck down by the Supreme Court in the case of Steel Authority of India Ltd. v. National Union Water Front WorkeRs. .

5. The petitioners contend that besides engaging the services of registered security guards through respondent No. 2, respondent No. 1 also employed security guards directly to perform similar work; that the services of the registered security guards are inter-changeable with those of the regular security guards directly employed by respondent No. 1; that the security guards directly or regularly employed by respondent No. 1 received far higher wages, emoluments and benefits than the security personnel; that the working conditions of regular security guards are better than those of registered security guards and that respondent No. 1 was treating the registered security guards and the regular security guards directly employed by it as two separate categories. The facts aredisputed by respondent No. 1. The details and legal consequence of the disputed facts will be considered later in this judgment.

6. The petitioners seek a declaration that a master and servant relationship exists between respondent No. 1 and the security personnel listed at exhibit A to the petition and that respondent No. 1 is, therefore, their employer within the meaning of the Industrial. Disputes Act, 1947; an injunction restraining the respondents from terminating the services of the security guards listed at exhibit A; a writ of mandamus, directing respondent No. 1 to pay the same wages and to extend the same service conditions to security guards listed at exhibit A as the wages paid and the service conditions extended to security guards directly employed by it and a writ of mandamus, directing respondent No. 1 to draw up and maintain a common seniority list of the security guards directly employed by it and those listed in exhibit A to the petition.

7. While several grounds have been taken in the petitions, Mr. K.K. Singhvi, the learned senior counsel appearing on behalf of the petitioners, inter alia, in Writ Petition No. 1623 of 1991 and learned counsel appearing on behalf of the petitioners in the other petitions restricted themselves to the following submissions:

(i) Once a security guard is allotted by the Board to a registered employer, the power of allotment is exhausted and the Board thereafter has no power to withdraw the security guard to re-allot him to another registered employer.

(ii) Under the provisions of the Security Guards Act, security guards, on being allotted by the Board to an employer/principal employer (hereinafter referred to as "the registered employer") become the employees of that registered employer.

(iii) The provisions of the Contract Labour Act apply to registered security guards and therefore, under Rule 25(2)(v)(a) of the Contract Labour Rules, the registered security guards are entitled to the same wages and conditions of service as security guards of the registered employer doing the same or similar nature of work.

(iv) The petitioners are entitled to the benefit of Rule 25(2)(v)(a) by virtue of the provisions of Section 22 of the Security Guards Act.

8. The first two submissions have been decided in the negative by judgments of this Court binding on us. Mr. Singhvi in his opening very fairly invited our attention to all the relevant judgments in this regard. It would, therefore, not have been necessary to deal with them in detail. Mr. Singhvi, however, endeavoured to support them on grounds hitherto not considered. He also submitted that some of the judgments were per incuriam and others no longer good law in view of the amendments to some of the provisions of the Security Guards Act and the Scheme made thereunder. It has, therefore, become necessary for us to deal with these submissions in detail.

9. The genesis of the Security Guards Act has been exhaustively set out in several judgments of the Supreme Court and this Court and especially by SAWANT J. (as his Lordship then was) in the case of Tradesvel Security v. State of Maharashtra, 1982 84 BLR 608 at page 623. It is unnecessary, therefore, to set out the same in detail again. A brief reference to the genesis is sufficient.

10. The demand for abolishing contract labour led to the enactment of the Contract Labour Act. However, certain occupations continued to escape the provisions of the Contract Labour Act as a result whereof the State of Maharashtra enacted the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (hereinafter referred to as "the Mathadi Act"), which came into force on June 13, 1969. The security guards who perform the duties of watch and ward did not fall within the provisions of the Mathadi Act. The trade union of the security guards, viz., Maharashtra Rajya Suraksha Rakshak and General Kamgar Union, Bombay, made representations to the State Government demanding the constitution of a separate Board on the lines of the Mathadi Board constituted under the Mathadi Act for ensuring regular employment and humane service conditions for security guards employed in establishments in Greater Bombay and Thane industrial complexes. The survey conducted by the State Government disclosed that the terms and conditions of employment of security guards engaged by establishments through agencies were far inferior to those of security guards employed directly by such establishments. The survey also noted unscrupulous and unfair dealings on the part of some of the agencies. Finding it necessary to stop exploitation of the unprotected security guards and to provide them with better service conditions, it was recommended that a notification be issued under the Mathadi Act to provide the security guards with the same facilities as the workers covered by the Mathadi Act. A non-official Bill introduced by a Member of the Legislative Council to cover security guards under the Mathadi Act was opposed by the State Government at that time because the Government was considering issuing a notification under the Contract Labour Act. It may be noted at this stage that a notification issued under the Contract Labour Act to abolish the contract labour system amongst security guards was struck down by this Court on the ground that the same was not a speaking order.

11. Ultimately on June 28, 1981, the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Ordinance, 1981, was promulgated. The Ordinance was replaced by the Security Guards Act with retrospective effect from June 29, 1981, after the Act received the assent of the President on September 25, 1981. The provisions of the Ordinance stood bodily incorporated in the Security Guards Act and there was no alteration in the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981 (hereinafter referred to as "the Scheme"), which was already made under the Ordinance and which is now deemed to have been made under the Security Guards Act by virtue of Section 31(2) thereof.

12. We now proceed to consider Mr. Singhvi's submissions.

Re: I. Once a security guard is allotted by the Board to a registered employer, the power of allotment is exhausted and the Board thereafter has no power to withdraw the security guard to reallot him to another registered employer.

13. Mr. Singhvi submitted that once a security guard has been allotted by the Board to the registered employer, the power of allotment is exhausted and the Board thereafter has no power to withdraw the security guard, to reallot him to another registered employer. According to him, the power of the Board to allot a security guard to a registered employer is exhausted upon a one time exercise thereof.

14. It was essential for Mr. Singhvi to make good this submission before dealing with the second submission, which really is the main submission as, the existence of a power of allotment and reallotment in the Board, would militate against the creation of an employer-employee relationship for all purposes between the registered security guard and a registered employer. This contention is not well founded and has been negatived by various judgments of this Court which are binding on us.

15. The petitioners in Suraksha Rakshak and General Kamgar Union v. M.S.S.I.D.C. (Writ Petition No. 2671 of 1992) prayed that the first respondent therein, who was a registered employer, should grant them regular and direct employment with effect from the date of their engagement. The petitioners also prayed for a writ of mandamus restraining the first respondent as also the Board from transferring, withdrawing or otherwise altering the status of the security guards/supervisors listed in the petition. The contention on behalf of the petitioners therein also was that under the Scheme once the security guards are allotted by the Board to a registered employer, they become permanent allottees and that the Board has no power to withdraw an allotment or give a fresh allotment to such security guards with any other registered employer. As in the case before us, the petitioners in that case had also been allotted by the Board to the first respondent.

16. The Division Bench of this Court in an unreported judgment dated March 23, 1993 proceeded on the admitted position that the Act applied to the petitioners therein and that the petitioners were not regular employees of the first respondent.

17. After referring to the various provisions of the Scheme, the Division Bench in paragraphs 4, 5 and 6 held as under:

"Under Clause 9, the functions of the Secretary of the Board include allotment of registered security guards in the pool who are available for work to registered employers. Under Clause 20 service records for registered security guards are maintained by the Board, under Clause 25(3), the obligation of a registered security guard includes his obligation to carry out the directions of the Board and to accept the employment under any registered employer for which he is considered suitable by the Board. Under Clause 31, the disciplinary powers over the registered security guards as also over registered employers, are with the Board. The Board, therefore has full powers to allot the registered security guards to any registered employer and to terminate such employment. These powers would include the power to withdraw allotment to a given registered employer and reallot the guard to another registered employer. The requirements of a registered employer, for example, may vary from time to time. The Board is entitled to adjust the allotment from time to time.

The contention of the petitioners that the obligation cast on the security guards to accept the employment which is considered suitable by the Board under Clause 25 is only a one-time obligation at the time of initial allotment from the pool of unemployed guards, cannot be accepted. This obligation remains throughout. Any other interpretation of Clause 25 would make the scheme unworkable. Both the power of allotment as well as the power of termination, are with the Board. The Scheme does not restrict the power of the Board to make an allotment only to initial allotment. It impliedly confers on the Board the power to change the allotment so made. The Scheme does not contemplate that the guards would be attached only to one employer. Hence, the security of tenure, and guaranteed service conditions which are provided under the Scheme are de hors employment with any particular registered employer. Thus, under the Scheme, there are provisions for the Board maintaining a welfare fund, a provident fund and a gratuity fund for such security guards.

The Scheme, therefore, must be looked at as a whole. A 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. 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. The security guard cannot claim a right to permanent allotment to any particular registered employer."

18. Referring to the judgment of the Supreme Court in the case of Dock Labour Board v. Stevedores Association, the Division Bench observed that 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. Based on this finding, Mr. Singhvi submitted that this case is therefore only an authority on the question of the power of the Board to re-allot security guards and not on the question of determining who the employer is. The fallacy of this submission arises from extracting a single observation from a judgment rather than reading it as a whole. The claim in the petition was that the respondent therein, i. e., the registered employer should grant the petitioners regular and direct employment. The relief was based on the submission similar to the one presently under consideration. Thus the judgment is relevant on the question of determining who the employer is. In any event it is relevant in so far as it negates the submission under consideration and consequently places an impediment in establishing that the registered employer is the employer of registered security guards for all purposes.

19. Mr. Singhvi submitted that the judgment is in any event per incuriam as the judgment of the Supreme Court in Security Guards Board v. Security and Personnel Services Pvt. Ltd., and Clause 25(4) of the Scheme were not considered by the Division Bench.

20. As far as the judgment of the Supreme Court is concerned, we have dealt with the same later and held that it does not lay down what Mr. Singhvi submits it does. Therefore, there is no question of the judgment of the Division Bench being per incuriam.

21. Clause 25(4) of the Scheme reads thus:

"(4) A registered security guard who is available for work when allotted by the Board for employment under a registered employer shall carry out his duty in accordance with the directions of such registered employer or his authorised representative or supervisor and the Rules of the employment or place where he is working."

22. Merely because in paragraph 4 the Division Bench referred to Clause 25(3) specifically it does not follow that the attention of the Division Bench was not drawn to Clause 25 in its entirety. Paragraphs 5 and 6 of the judgment establish that the Division Bench construed the effect of Clause 25 generally and in its entirety. The submission that the Division Bench did not consider Clause 25(4) specifically and that the judgment is therefore per incuriam is rejected. Further, the fallacy of this submission is a consequence of extracting a particular Clause and reading it in isolation. The Act and the Scheme must be read as a whole. Each Clause read in isolation may lead to different conclusions. As observed by the Division Bench "The Scheme, therefore, must be read as a whole". Mr. Dada's approach in analysing the Act and the Scheme as a whole commends itself to us.

23. Mr. Singhvi also submitted that the judgment is no longer good law in view of the amendments to the definition of the terms "employer" and "principal employer" and the provisions of Section 23 in the Act. The decision was not based on the definitions of "employer" and "principal employer" and the provision of Section 23 of the Act. It was arrived at on an analysis of the various provisions of the Act and the Scheme. We do not find anything in the amendment which has altered the position regarding the identity of the employer.

24. The judgment in Tradesvel's case (supra) also militates against this submission. It was contended in Tradesvel's case that prior to the Security Guards Act, the establishment could choose persons required to do security work by choosing agencies through which they were employed or by changing the agencies according to their will and that under the Security Guards Act the establishments would have to be content with the security guards assigned by the Board and even if they found their work unsatisfactory they would have no power to reject them. Dealing with the submission, SAWANT J. held:

"But there is also a provision under Clause 31 of the present Scheme whereby a registered employer can make a complaint against a registered security guard assigned to him and in that event a power is given to the Chairman of the Board to suspend the concerned security guard during investigation and assign to the employer another guard in his place."

25. The aforesaid observation, with which we are in respectful a'greement, clearly postulates the power of the Board to withdraw and reallot a security guard from one employer to another. It militates against the submission of Mr. Singhvi. The judgment has been affirmed by a Division Bench of this Court in Krantikari Suraksha Rakshak Sanghatana v. Security Guards Board for Greater Bombay and Thane, 1997 II CLR 81 to which we shall shortly make a detailed reference.

26. In Krantikari Suraksha Rakshak Sanghatana v. A. L. Alaspurkar 1996 II CLR 76 sriKRISHNA J. (as his Lordship then was) referred to and analysed the judgment of the Division Bench in SRGK Union v. MSSIDC in detail and rejecting in paragraph 22 the same submission went on to observe:

"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 allowance 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 to a registered employer spells out the existence of the power of withdrawal of the. security guards. "

27. We are in respectful agreement with the above observations and the interpretation of the judgment of the Division Bench by the learned judge.

28. The Division Bench of this Court in the case of Krantikari Suraksha Rakshak Sanghatana v. Security Guards Board for Greater Bombay and Thane, (supra) also had occasion to deal with an identical contention on behalf of the security guards. The Division Bench confirmed the judgment in Tradesvel's case and held in paragraph 16 as under:

"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 reallot is not with the Board then formation of a 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 for 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 reallot him to another establishment and we must mention at this stage that Shri Mahanty who was withdrawn on July 4, 1988 was immediately reallotted on July 5, 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 reallotment from the pool.

29. In paragraph 17, the Division Bench referred to and followed the earlier Division Bench judgment of this Court in Suraksha Rakshak and General Kamgar Union v. MSSIDC and observed:

"Thus, in our opinion, the issue has been conclusively answered by the Division Bench in the case of Suraksha Rakshak and General Union and needs no further elaboration."

30. We are bound by the above judgments of this Court. With great respect, we are also entirely in agreement with what has been held therein. In the circumstances we reject the submission of Mr. K.K. Singhvi that once a security guard is allotted to a particular establishment or employer, he cannot be withdrawn by the Board. We also reject the contention that the allotment by the Board of a security guard to a registered employer is a one-time exercise and that the Board has no power to withdraw the guard once he is allotted to an establishment.

31. It was also contended in Tradesvel's case (supra) that the assignment of security guards is in the hands of the Board and in the absence of guidelines it may happen that the Board may supply to an employer irrespective of his financial condition security guards who are in receipt of higher emoluments and other service conditions. It was, therefore, contended that an employer who may be incurring less expenses on the employment of security guards will have to bear an additional financial burden, if costly security guards whose higher service conditions are protected under Section 22 of the Act, are thrust upon him. This, it was submitted, would infringe the employers right to carry on business. sAWANT J. while rejecting the submission observed that the legislation merely converted the security guards into registered security guards and that the Board which has the representatives of the employers as well as independent representatives from the Government is expected to act reasonably. His Lordship went on to observe:

"Hence while allotting security guards, it is legitimate to presume that they will do so taking into consideration the employment of the security guards prior to the coming into operation of the present legislation, the financial position of the different employers and the feasibility of assigning security guards to particular employers. "

32. The above observation with which we are in respectful agreement, also militates against the submission that on the coming into force of the Security Guards Act the Board does not have the power to allot a security guard to any establishment other than the establishment in which he was working on the date on which the Act came into force.

33. The discretion vested in the Board to determine the registered employer qua a particular security guard and the power of the Board to subsequently withdraw and reallot a security guard to another registered employer is anathema to a direct and regular employment. If Mr. Singhvi's submission is to be accepted, conversely it must also be held that the registered security guards on being allotted to registered employers would become direct employees of the latter and the Security Guards Act and the Scheme would not apply to them. They would lose the protection of the Security Guards Act. Moreover, in that case, we are left wondering as to, to which security guards the Act would be applicable to. The logical consequence of Mr. Singhvi's submission would be that the Act would apply only to those security guards who are not allotted to any registered employer. Surely this was not the intention of the Legislature. Such an interpretation would frustrate the very purpose of the Act and render it unworkable, meaningless and otiose.

34. When we put this to Mr. Singhvi, he responded with an ingenious argument. He submitted that registered security guards are allotted to registered employers by the Board and, therefore, do not fall within the meaning of the expression "direct..... employees" in Section 1(4) of the Act. Nor, he submitted, can they be said to be "directly employed security guards" within the meaning of that expression in Clause 4 (f) of the Scheme.

35. Section 1(4) of the Security Guards Act and Clauses 4(f) and (g) of the Scheme read as under:

"Section 1(4). It applies to persons who work as security guards in any factory or establishment, but who are not direct and regular employees of the factory or the establishment, as the case may be.

Clause 4(f) "pool" means a list or register of security guards maintained by the Board but which does not include directly employed security guards.

Clause 4(g) "pool security guard" means a security guard whose name is entered in the pool".

36. According to Mr. Singhvi, a "direct employee" is only one who is employed without being routed through the Board or any agency. In other words, according to him, the term "direct" pertains, not to the nature of the legal relationship between the registered security guard and the registered employer but to the channel through or the route by which, the security guard was employed/engaged. Thus, according to him, the registered security guards on being allotted to registered employers by the Board become "regular" but not "direct" employees of the latter. They continue therefore to be entitled to the benefits of the Act and the Scheme as, while they are "regular" they are not "direct" employees of the registered employer.

37. Mr. Dada, as did the other learned counsel appearing on behalf of the respondents, relied upon the judgments in Security Guards Board v. Security and Personnel Services Pvt. Ltd., Alaspurkar's case and Tradesvel's case in answer to Mr. Singhvi's submission. We are, however, in agreement with Mr. Singhvi that this submission neither fell for consideration nor was in fact considered in these judgments. They are, therefore, of no assistance in answering the point under consideration which has been raised for the first time before us. We therefore proceed to consider it.

38. The submission, though ingenious, is not well founded. The expression ''direct and regular" pertains to the nature of the legal relationship between the registered security guard and the registered employer. It refers to those security guards whose terms of employment are arrived at between themselves and the registered employers inter se and not. by the Board. It refers to security guards who are employees of an employer for all purposes. If Mr. Singhvi's submission is to be accepted it would mean that a security guard appointed through any intermediary such as an employment agency, would not be a direct employee even if he is otherwise an employee for all purposes. This would create another category of security guards neither contemplated by the Legislature nor a necessary consequence of the operation of any of the provisions of the Security Guards Act or the Scheme. We find nothing in the Security Guards Act or the Scheme which persuades us to hold that the expression "direct" pertains to the channel through or the source from where the security guard was employed/engaged by the registered employer. Such a consideration would in fact bear no relevance or nexus to the purpose of the Security Guards Act or the Scheme.

39. Re : II. Under the provisions of the Security Guards Act, security guards, on being allotted by the Board to an employer/principal employer become the employees of that registered employer.

40. In support of the submission, Mr. Singhvi relied upon the judgment in Tradesvel's case (supra). In particular he relied upon the following observations:

"Lastly, the provisions of the Act and the Scheme together were challenged on a larger ground, viz., that neither the Act nor the Scheme spell out any employer-employee relationship either between the Board and the registered security guards or between the registered employers and the registered security guards. The petitioners. therefore, argued that to that extent the registered security guards are left without a remedy at law for their grievances arising out of their employment. Whereas hitherto there was a definite relationship of employer and employee between the agencies and the security guards and they could approach the adjudicating machinery under the Industrial Disputes Act and other labour legislations for enforcing their rights, they are now left without any such remedy, in the absence of an employer against whom proceedings could be taken. The security guards are, therefore, not benefited by the legislation but are worse off because of the same.

Assuming, however, that there are some service conditions of the security guards which are not provided for in the Act, the question is, is there no employer against whom the security guard can proceed?

It is in the light of the tests of the master and servant relationship laid down in the aforesaid decisions that we have to answer the question as to who is an employer of the security guards in the present case. Under Sub-clause (4) of Clause 25 of the Scheme, a registered security guard when allotted for employment under a registered employer is under an obligation to carry out his duty in accordance with the directions of such employer or his authorised representative or supervisor and the Rules of the employment or place where he is working. Under Clause 31(2) of the Scheme, the employer can report any act of indiscipline or misconduct of the guard to the personnel officer of the Board who has the power to warn him. In case of a misconduct deserving higher punishment either the personnel officer or the employer may report the matter to the Chairman of the Board who is authorized even to dismiss the guard. During the pendency of the investigation into the complaint of misconduct, the guard can be suspended by the Chairman. Further the employer pays the wages of the guard working with him either directly or through the Board. He also pays in the form of the levy, for the other benefits including the retirement benefits of the guard. Merely because it is not his hand which recruits or punishes the guard, the principal employer does not cease to be the employer of the guard. On the basis of (he tests laid down by the Supreme Court as above, therefore, it will have to be held that the registered employer or the principal employer as defined under the Act is the employer of the registered security guards for the purposes of matters not covered by the Act and the Scheme. The provisions of Sections 19, 20 and 21 of the Act will have therefore to be construed as being limited to the purposes of the specific statutes mentioned therein. The provisions are not to be construed negatively to mean that except for the said acts, neither the Board nor the principal employer is the master of the registered security guards.

In the circumstances, my conclusion is that in the first instance, there is no need to identify an employer in the present case. Assuming however that there is such a need, for purposes not provided for in the legislation, the employer will be the principal employer as defined in the Act. The present legislation cannot therefore be said to be unreasonable or not in public interest."

41. Mr. Singhvi in particular relied upon the portions emphasised above by us, in support of the above submissions. Before we deal with this judgment, it is necessary to refer to the judgment of the Supreme Court in the case of Security Guards Board for Greater Bombay and Thane v. Security and Personnel Service Pvt. Ltd. (supra), also relied upon by Mr. Singhvi in support of the submission under consideration. He placed strong reliance on paragraph 8 of this judgment which reads as under 1988-I-LLJ- 146 at p.p. 152 & 153:

"One of the submissions of 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 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 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."

42. Mr. Singhvi submitted that the ratio of the above cases was that a registered security guard on being allotted by the Board to a registered employer becomes a direct employee of the latter. The submission is not well founded. It has been negatived by two judgments of this Court, viz., the judgment of sriKRISHNA J. (as his Lordship then was) in A.L. Alaspurkar's case (supra) and the judgment of the Division Bench of this Court in the case of Krantikari S.R.S. v. Security Guards Bombay, and Thane, (supra).

43. In A.L. Alaspurkar s case, (supra) sriKRISHNA J. decided three petitions, viz.. Writ Petitions Nos. 45 of 1991, 1409 of 1993 and 3863 of 1993. In Writ Petition No. 45 of 1991, the petitioners had filed a complaint (ULP) before the Labour Court at Thane on behalf of the security guards, alleging that in view of the complaint regarding a theft filed by the company, the petitioners apprehended that the registered employer would approach the Board to remove all allotted security guards and replace them by a fresh set of security guards without any opportunity to them of being heard. This, it was contended, was in contravention of the provisions of the Industrial Disputes Act and unfair labour practices within the meaning of the M.R.T.U. & P.U.L.P. Act, 1971. The Labour Court upheld the objection of the registered employer regarding the maintainability of the complaint holding that the Board was not an industry within the meaning of Section 2(j) of the Industrial Disputes Act; that neither the registered employer, nor the Security Board was an employer of the security guards within the meaning of Section 3(6) of M.R.T.U. & P.U.L.P. Act and that the security guards are not the workmen within the meaning of Section 2(s) of the Industrial Disputes Act, inasmuch as there was no contract of employment between them and the registered employer. The Labour Court, therefore, held that the security guards were not the 'employees' within the meaning of Section 3(5) of the M.R.T.U. & P.U.L.P. Act. In the review application, the Industrial Court confirmed the order of the Labour Court. The order of the Labour Court and the Industrial Court were impugned in Writ Petition No. 45 of 1991.

44. In Writ Petition No. 1409 of 1993, the petitioner had filed a complaint (ULP) before the Industrial Court, alleging that the registered employer was annoyed by the agitation of the petitioner-union and apprehended that the entire set of security guards was likely to be withdrawn and substituted by a fresh set of the security guards to be reallotted to the said establishment. The complaint was dismissed by the Industrial Court on the ground that there was no employer or employee relationship between the registered security guard and registered employer. The Petition impugned the order dismissing the complaint.

45. The facts in Writ Petition No. 3862 of 1993 were that it was alleged in the complaint that the security guards who were allotted to the registered employer were withdrawn by the Board and allotted to some other employer. It was contended that this action amounted to an illegal termination of the services of the security guards by way of victimization and an unfair labour practice within the meaning of the M.R.T.U. & P.U.L.P. Act. The Industrial Court held that it had no jurisdiction to entertain the complaint, as there was no employer-employee relationship between the registered security guards on the one hand and the registered employer or the Board on the other. The writ petition impugned this order.

46. It was contended that once a security guard is allotted by the Board to the registered employer, the security guard becomes the direct employee of the registered employer. The above observations of SAWANT J. in Tradesvel's case (supra) and of the Supreme Court in Security Guards Board v. Security and Personnel Service Pvt. Ltd. (supra), were relied upon in support of the submission. The learned judge held as follows:

"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."

47. The extreme contention taken by either side viz., the contention on behalf of the security guards that upon allotment to a registered employer they become the employees of the registered employer for all purposes and the contention of the registered employers that under no circumstances can such security guards be held to be employees of the registered employer, was repelled. The learned single judge thereafter in detail and if we may add with great respect to his Lordship, accurately analysed and set out the true import of the above observations of SAWANT J. in Tradesvel's case (supra).

48. In this regard Mr. R.A. Dada, learned senior counsel appearing on behalf of respondent No. 1 invited our attention to paragraph 49 of the judgment. We may add that the answer to Mr. Singhvi's submission is essentially found in paragraphs 41 and 45 as well. After analysing the judgment in Tradesvel's case, sriKRISHNA J. went on to hold as follows:

"An in-depth analysis of the judgment of SAWANT J. in Tradesvel's (supra), became necessary in view of the fact that both sides in this group of petitions, with equal vehemence, contend that the judgment of SAWANT J. supports them. In my view, the opinion of the learned judge (SAWANT J.) is reflected in his observation "for the purposes not provided for in the legislation (Security Guards Act/Security Guards Scheme), the employer will be the principal employer; that is, the registered employer as defined in Section 2(3) of the Security Guards Act." (emphasis mine).

49. Though Mr. Singhvi vehemently urged that upon deployment of a security guard to the service of the registered employer, the security guard gets all rights under the contract of employment, I have already pointed out that this contention can, at best, be only partly correct. While it is possible to uphold the contention to the extent that the registered employer would be the employer of the security guard for a purpose which has not been adequately taken care of under the Security Guards Act and Security Guards Scheme, it is not possible to accept the extreme contention of Mr. Singhvi that the registered employer would be the employer for all purposes including the conditions of service. I am, therefore, unable to accept the contention of Mr. Singhvi that the security guards fortuitously deployed to the registered employer have a right to demand absorption as regular employees of the registered employer. This extreme contention of Mr. Singhvi does not appeal to me and is rejected.

50. As regards the above observations of the Supreme Court in the case of Security Guards Board for Greater Bombay and Thane v. Security and Personnel Service Pvt. Ltd. (supra), sriKRJSHNA J. in the judgment held as follows:

"The emphasised observations of the Supreme Court do not suggest, in my view, the meaning that learned counsel ascribes to them. The Supreme Court reproduced the provisions of Section 22 of the Security Guards Act which protect the better benefit, if any, available to the workmen prior to coming into force of the said Act and said that all that Section 22 provides in effect is that the rights or privileges of a 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 beneficial as a 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 his service while allotted to the factory or establishment. The expression 'service' has not been used by the Supreme Court in this passage as equivalent to a full-fledged contract of employment. The word 'service' has been used in this passage as equivalent to work and engagement and not as employment, as properly understood. I am, therefore, unable to accept the contention canvassed by Mr. Singhvi that upon deployment to the registered employer, the security guards become the employees of the registered establishment (sic) and are entitled to all benefits as the direct employees of that establishment."

51. The judgment in Alaspurkar's case (supra), fell for consideration on this aspect as well before the Division Bench of this Court in the case of Krantikari S.R.S. v. Security Guards Board for Greater Bombay and Thane (supra). The judgment of the Division Bench in paragraph 11 also extracts paragraph 8 of the judgment of the Supreme Court in the case of Security Guards Board, Bombay, Thane (supra). Before the Division Bench also reliance was placed on the decision of the Supreme Court in the case of Dock Labour Board v. Stevedores Association (supra), as well as on the observations of SAWANT J. in Tradesvel's case (supra) and of the Supreme Court in Krantikari Suraksha Rakshak Sangh v. Security & Personnel Service Pvt. Ltd. in support of the contention that the registered employer automatically became the employer of the security guards for all purposes. The Division Bench rejected the above contention and affirmed the interpretation of sriKRISHNA J. in Alaspurkar's case and of the judgment of SAWANT J. in Tradesvel and of the Supreme Court in Krantikari S.R.S. v. Security & Personnel Service Pvt. Ltd. (supra). The Division Bench in paragraphs 13, 14 and 15 observed as under:

"The learned single judge (B.N. sriKRISHNA J.) in the case of Krantikari Suraksha Rakshak Sanghatana, Thane (supra) has also observed:

"In my considered view, there can be several situations not provided by the Security Guards Act and the Security Guards Scheme, wherein it would be necessary to identify the employer so that the security guards may have a remedy against him. The case on hand is one such instance.

We are in complete agreement with the observations made by the learned single judge of this Court in Krantikari Suraksha Rakshak's case (supra)".

We also feel persuaded to take the same view inasmuch as it would be advancing the basic intention of framing the Scheme so as to provide security of service conditions of employment. A security guard cannot be left in the wilderness to find out his employer if he intends to remedy a wrong done to him. If such wrong creates a situation which will affect his basic conditions and the wage structure as protected by the said Act, a person responsible for the same, could be styled as an employer and if the test of master and servant relationship is applied for the purpose of remedying the wrong done to such a security guard, a person who is responsible and liable under the Scheme to remedy such wrong, could be said to be the principal employer for that specific and limited purpose. Thus, as pointed out earlier, it is always open to find out the employer of a particular security guard in the context of injury alleged by him and the necessary consequential reliefs claimed by him."

52. Reliance is placed on the decision of Visakhapatnam DOCK Labour Board (supra), for the proposition that the principal employer automatically becomes employer for all purposes is also incorrect inasmuch as there is a vital difference between the Scheme which was under consideration in Visakhapatnam Dock Labour Board's case and the present Scheme, as observed by the learned single Judge of this Court in Krantikari Suraksha Rakshak Sanghatana and also by the Division Bench in Suraksha Rakshak & General Kamgar Union. We are not persuaded to take a different view than the one expressed in these two judgments. The basic Scheme under consideration being different, the ratio laid down in the case of Dock Labour Board, will not be applicable to the facts of the present case.

53. The interpretation of sriKRISHNA J. of the judgment in Tradesvel's case (supra), is correct and we affirm the same. We are also bound by the judgment of the Division Bench in Krantikari Suraksha Rakshak Sanghatana v. Security Guards for Greater Bombay, Thane (supra). In view thereof, Mr. Singhvi's submission is rejected.

54. Mr. Singhvi also invited our attention to paragraph 59 of the judgment of Supreme Court in Air India Statutory Corporation v. UnitedLabour Union, in support of the above submission. The Supreme Court referring to its earlier judgment in Security Guards Board for Greater Bombay, Thane v. Security and Personnel Service Pvt. Ltd. (supra), observed as follows:

"In other words, the ratio of that case is that it is not material as to through which contractor the employee came to be appointed or such labour came to be engaged in the establishment concerned. The direct relationship would emerge after the abolition of the contract labour."

55. The Supreme Court was not concerned with nor decided the present submission under consideration. In this view of the matter, it is not necessary for us to consider Mr. Dada's submission that the observations of the Supreme Court in Air India's case (supra) are not binding in view of the judgment of the Constitution Bench of the Supreme Court having overruled the same in the case of Steel Authority of India Limited (supra).

56. Mr. Singhvi invited our attention to the judgment of the Kerala High Court in the case of Kerala State Coir Corporation Ltd. v. Industrial Tribunal 1995-I-LLJ-951. In that case, persons who worked as security personnel with the petitioner raised an industrial dispute on their services being terminated. The petitioners contended that the security personnel were allotted to it by a registered society. The Industrial Tribunal held that the security personnel were the workmen of the petitioners and the termination of their services not being in accordance with the Industrial Disputes Act, passed an award declaring them as continuing in service and directed the petitioners to pay their wages during the period they were kept out. The award was challenged before the Kerala High Court. Mr. Singhvi placed reliance upon paragraph 6 of the judgment, which reads as under at p. 952 of LLJ:

'"Workman' has been defined in Section 2(s) of the Act as any person employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied. ..... Some categories of persons have been excluded from the purview of the said definition and there is no case that any one of the eleven workmen involved in this case would fall within such excluded categories. The word 'employed' in the Section would postulate a master and servant relationship, no matter who supplied the person employed is under the control and supervision of the employer. Mode of payment, whether it was direct or through any other agency, does not normally determine the status of the person as workman. There is no dispute that eleven persons were rendering security service and it was the petitioner who allotted to work to those 11 persons and controlled them and decided the nature of work they had to render. The society's role was only to supply the persons to do the work. In such a situation those persons would be 'workmen' falling within the purview of Section 2(s) of the Industrial Disputes Act.".

57. We fail to see how this judgment can be of any assistance to Mr. Singhvi. Firstly, in the case before the Kerala High Court, the security personnel were supplied by the registered society whose role was "only" to supply the persons to do the work. The case before us is entirely different. The Board controls various factors and facets in relation to the registered security guards. As seen above, the role of the Board is not limited only to supply the security guards to the registered employer. Moreover the contention in the present case did not fall for consideration before the Kerala High Court.

58. In Dyes and Chemicals Workers Union v. Bombay Oil Industries Ltd., 2001-I-LLJ-1252, a Division Bench of this Court held that in order to fall within the definition of 'workman' in Section 2(s) of the Industrial Disputes Act, there must be a legal relationship of employer-employee or master and servant. Unless a person is thus employed, there is no question of his being a workman within the definition of Section 2(s) of the Industrial Disputes Act. It was further held that conversely whereas in the case of contractor's employees, there is no privity of contract of employment or vinculum juris establishing a relationship of employer-employee between the person who works and the employer, then such a person will not be a workman within the meaning of Section 2(s) of the Industrial Disputes Act. It was held that the position in law, therefore, is that every person who works for another, does not become a workman. He will become a workman only if there is a legal relationship of employer-employee master-servant between them. Conversely, in all other cases, in the absence of such relationship, the working person would not be a "workman" as understood in Section 2(s) of the Industrial Disputes Act. It is necessary, therefore, to ascertain in each case whether there exists a vinculum juris establishing a relationship of employer and employee between the security guards and the registered employer.

59. Relying upon the observations in paragraph 43 of the judgment in Alaspurkar's case it was contended that in Alaspurkar 's case (supra), it was held sub silentio that employees allotted by the statutory boards like the Mathadi Board become the direct employees of the employer. The extract from Alaspurkar's case upon which reliance is placed reads as under:

"I am, therefore, of the view that the Courts below were wrong in holding that there could never be a legal relationship of employer-employee between the registered employer and the security guards for any purpose whatsoever. Though, out of the several strands of the vinculum juris which go to make the employment contract, most may have been snapped by statute, as long as even a single strand remains, the policy of the statute, as declared by this Court in Tradesvel Security (supra), is that for that purpose, the registered employer must be considered the employer of the registered security guards."

60. We must mention that through inadvertence the sentence referring to the submission is incomplete and reads as under:

"Ms. Mhatre contends that sub silentio this case decides that employees allotted by statutory Boards like the Mathadi Board (it is not in dispute that the provisions of the Private Security Guards Act and the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 and the Schemes made for employment of registered employees under both the statutes are substantially similar)."

61. We may also mention that this is not a typographical error. After the matter was heard we called for the original judgment which also contains the same error. However, from the context it is clear that the submission of the learned counsel was as stated by us earlier. Relying upon the authority of the House of Lords in Quinn v. Leatham, (1901) AC 495 it was held that a judgment is only an authority for what it decides and not what is logically deducible therefrom. It was further held that the judgment in Alaspurkar's case (supra) does not lay down the proposition as canvassed. The Division Bench rejected the contention that the judgment was an authority on the proposition canvassed, even assuming such a proposition is logically deducible therefrom.

62. Mr. Singhvi submitted, in considerable detail and with the assistance of a comparative chart, that the provisions of the Scheme in Dock Labour Board v. Stevedors Association (supra) were similar to the present Scheme. This submission has been rejected more than once by judgments of this Court that are binding on us. The Division Bench in Dyes and Chemical Workers Union v. Bombay Oil Industries Ltd, (supra), held that there was no finding in Vishakapatnam Dock Labour Board v. Stevedores Association, Vishakhapatnam, (supra), that there was a relationship of employer-employee between the registered employer and the dock labourers. It was observed that the issue raised for consideration was whether the Dock Labour Board was the employer and the same was answered in the negative. The Division Bench, therefore, held that it was not possible to deduce from this judgment that the registered employers. even under the Vishakapatnam Dock Labour Act and the Scheme were clearly held to be employers of the dock labourers allotted to them by the statutory board. The Division Bench went on to reiterate what had been held in Tradesvel 's case (supra) as well as in Alaspurkar's case (supra) and in Krantikari Suraksha Rakshak v. Security Guards Board for Greater Bombay and Thane, (supra), viz., that the Scheme in Vishakapatnam Dock Labour case (supra) was not in pari materia with the Scheme under the Security Guards Act. The judgment is binding on us on this point. We accordingly reject Mr. Singhvi's submission.

63. Mr. Singhvi went a step further, submitting that the registered security guards became employees of the factory or establishment where they were working on the date of the commencement of the Act. In support of this submission, he relied on para 11 of the judgment of the Supreme Court in Security Guards Board v. Security and Personnel Services Pvt. Ltd., (supra) which reads as follows:

"On behalf of some of the security guards a writ petition was filed in Bombay High Court and it has been withdrawn to this Court to be disposed of along with the appeals. One of the contentions raised in the writ petition filed by the workmen is that the Scheme does not offer any continuity or guarantee of employment to those who are already working in factories or establishments having been engaged through agencies. We are assured by Shri K.K. Singhvi, learned counsel 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 of service offered by the Board such person would be employed on the previous terms and conditions of service. The assurance of Shri Singhvi is made part of our order. The learned counsel for the workmen also urged that there was an insistence upon payment of capitation fee and sponsoring by a union before a security guard was registered under the Scheme. This of course is not permissible under the Act or the Scheme and whoever has been so insisting will desist from doing so".

64. It is not possible to accept the submission. As we have seen above, the Board has the power even at the time of the initial allotment, to determine the registered employer of a given security guard. This must necessarily be so as the Board would have had to consider the requirements of various employers, the availability of suitable security guards for an employer and the availability of employment with employers at every stage including at the stage of the initial allotment. There is no and could not have been an inflexible requirement of allotment in every case of a security guard to the factory or establishment where he was employed on the commencement of the Act. This aspect did not fall for the consideration of the Supreme Court. Nor do we read the above observations of the Supreme Court as having laid down any such requirement. The apprehension on the part of the employees was sought to be allayed before the Supreme Court by the counsel for the Board by making the concession. Moreover, the judgment of the Supreme Court in any event does not negate the power of the Board to withdraw and reallot the security guards after the initial employment. Further the above observation can by no means be stretched to say that the Supreme Court held that consequent thereto an employer-employee relationship for all purposes was established between the security guards and the registered employer with whom they were working on the date of commencement of the Act. The point, therefore, is really a non sequitur.

65. Mr. Dada and Mr. C.U. Singh invited our attention to various other Clauses of the Scheme in support of the case against the above submissions. Considering the above judgments and the view taken by us, it is not necessary to deal with each of these clauses.

66. Mr. Singhvi finally submitted that if these issues are not decided in favour of the petitioner, it would cause grave injustice to them as it would deprive them of security of tenure. We are unable to agree. The fallacy is a result of raising the contention qua a particular registered employer. The interpretation of the Act and the Scheme cannot be based on the identity of the registered employer in a given case.

67. In the present case the registered employer is the Airports Authority-an employer which understandably any employee would seek a direct employment with for a variety of obvious reasons. On the other hand registered security guards allotted to registered employers who are not equally solvent, whose possibility of existence is not equally certain or whose terms and conditions of service are not equally beneficial, would stand to lose considerably, if we were to uphold the above submissions. The Act ensures protection to security guards irrespective of the registered employer they are allotted to.

68. In this regard, it is also pertinent to note Clauses 12 and 16 of the Scheme which read as under:

"12. Classification of security guards.- The Board shall arrange for the classification of security guards in suitable categories as may be determined by it from time to time.

16. Promotion and transfer of security guards.- A vacancy (other than a casual vacancy) in any category of security guard in a pool register shall ordinarily be filled by promotion of a security guard from the next lower category.

Explanation. The criteria for promotion shall ordinarily be

(a) seniority;

(b) merit and fitness for the category to which promotion is to be made;

(c) record of past service."

69. Mr. Dada invited our attention to a circular dated December 30, 2000, where six grades of security guards are mentioned, viz., security guard/lady searcher, head guard, security supervisor, assistant security officer, security officer and chief security officer. The wages and allowances in respect of each grade differs.

70. The security guards in general would suffer injustice if Mr. Singhvi's submissions are upheld. A security guard allotted to a registered employer may be eligible for promotion as per the Act and the Scheme. However registered employer may not require a security guard of a higher category/grade. If Mr. Singhvi's submission is accepted and the security guard is held to be an employee of the registered employer for all purposes, he would not be entitled to a promotion as there would be no post to which he could be promoted. On the other hand in the view we have taken, if there is a vacancy in a higher grade a security guard entitled to promotion would be promoted, withdrawn from the registered employer who has no requirement for such a security guard and reallotted to another registered employer who has a vacancy for the security guard of that grade.

71. These two instances clearly demonstrate the fact that the scheme as interpreted by Mr. Singhvi would in fact do security guards in general injustice.

72. Re. III. The provisions of the Contract Labour Act apply to registered security guards and, therefore, under Rule 25(2)(v)(a) of the Contract Labour Rules, the registered security guards are entitled to the same wages and conditions of service as security guards of the registered employer doing the same or similar nature of work.

73. The writ petitions proceeded in part on the basis that the notification dated December 9, 1976, issued by the Central Government under Section 10 of the Contract Labour Act is valid and subsisting. The submissions in the petition on the basis of the said notification do not survive in view of the judgment of the Constitution Bench of the Supreme Court in the case of Steel Authority of India Ltd. v. National Union Water Front Workers (supra), quashing the said notification prospectively: The submissions based on the said notification, therefore, do not survive.

74. We are unable to accept Mr. Singhvi's submission for more than one reason. Ms. Desai, on behalf of the Security Guards Board submitted that the Board is not a contractor. On behalf of the respondent it was also submitted that the provisions of the two legislations are in conflict with each other at least the provisions which deal with the quantum of wages and other terms and conditions of services of security guards and the provisions of the Security Guards Act prevail over those of the Contract Labour Act. To appreciate each of these submissions it is necessary firstly to refer broadly to some of the provisions of the Security Guards Act and the Contract Labour Act.

75. We shall first refer to the provisions of the Security Guards Act and the Scheme made thereunder. We have already examined earlier, the circumstances leading to the enactment of the Security Guards Act. The Security Guards Act, as the long title itself indicates, was enacted with a view to regulating the employment and welfare 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 establishment of a Board and for matters connected therewith.

76. Clause 3 of the Statement of Objects and Reasons is relevant and reads as under:

"In order to ensure that the security guards in factories and establishments were not exploited and for making better provisions for their terms and conditions of employment and welfare, through the establishment of a separate representative Board therefore, it was considered necessary to enact a special law immediately, on the lines of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969. It would then be possible in due course to make recruitment of these security guards through the Board only."

77. Section 2(1) defines agency or agent in relation to a security guard to mean an individual or body of individuals or a body corporate, who or which employs security guards in his or its employment on wages and undertakes to execute any security work or watch and ward work on contract for any factory or establishment by engaging the security guards in his or its employment, but does not include a sub-agency or sub-agent or the Board.

78. The Board is constituted under Section 6 of the Security Guards Act. Section 6 stipulates that the Board shall be a body corporate having perpetual succession and common seal. The members constituting the Board are nominated by the State Government representing the employers, security guards and the State Government. The Chairman of the Board is nominated by the State Government to represent the State Government and is a member of the Board.

79. Section 8 provides 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 confined on it by the Scheme. The Board may take such measures as it may deem fit for administering the Scheme. The Board is required to submit to the State Government an annual report on the working of the scheme during the preceding year.

80. While exercising powers and performing and discharging its duties and functions, the Board is bound by the directions issued by the State Government.

81. Under Section 14 the Board may determine any sum due from any employer or security guard under the Security Guards Act or any scheme made thereunder. For this purpose, the Board is entitled to conduct such enquiry as it thinks necessary. The sum determined under such proceedings are to be recovered as arrears of land revenue.

82. Under Section 16 of the Act, the Board is entitled to appoint Inspectors with powers to enter and search the premises where security guards are employed or engaged and examine various records required to be kept under the Scheme. The Inspectors may also be authorised to examine persons they find within the premises and require persons giving work to security guards to furnish information. The Inspectors may also be authorised to seize various documents and exercise such other powers as may be prescribed.

83. We now proceed to examine the relevant provisions of the Scheme framed pursuant to Section 4(1) of the Security Guards Act. Under Clause 6(11)(v), the Board may determine the wages, allowances and other conditions of service of the registered security guards. Under Clause 6(11)(xi) the Board may settle disputes between registered employers and registered security guards.

84. Clause 8 stipulates the responsibilities and the duties of the Chairman. The Chairman is made responsible for the satisfactory execution of the Scheme and is vested with the powers to execute the decision of the Board subject to its directions. Under Clause 24, the security guard is entitled to four holidays in a year with pay at the rates specified by the Board under Clause 29.

85. Under Clause 26, every registered employer shall accept the obligations of the scheme and shall not employ a security guard who has been allotted to him by the Secretary of the Board. Under Clause 27, no registered employer shall engage for employment a security guard unless he is registered or directly employed.

86. Clause 29(1) is important and reads as under:

"Wages, allowances and other conditions of service of Security Guards. (1) Without prejudice to the provisions of any award, it shall be unless otherwise specifically provided for in this Scheme, an implied condition of the contract between a registered employer that the rates of (sic) allowances and overtime, hours of work, rest intervals, leave with wages and other conditions of service including supply of uniforms, boots, torches, batteries, etc. necessary for the proper and efficient execution of their duties, shall subject to the provisions of Sub-clauses (2), (3), (4), (5) and (6) of this Clause, be such as may be fixed by the Board for each category of Security Guards."

87. The mode of fixing the rates of wages, allowances and overtime, hours of work, rest intervals, leave with wages and other conditions of service for registered security guards or revising or modifying the same is stated in detail in subsequent sub-clauses of Clause 29.

88. Clauses 31 to 36 deal with the disciplinary procedure, including the termination of employment, appeals and provisions for revision by the Chairman in respect of the registered employer and the registered security guards who fail to carry out the provisions of the Scheme. Thus, the Board is a statutory authority constituted essentially for the purpose of administering the Act and the Scheme, the object of which we have already seen.

89. It is necessary now to refer to the provisions of the Contract Labour Act. Under Section 10(1), the appropriate Government may prohibit by notification employment of contract labour in any process, operation or other work in any establishment. Section 12 is important and reads as under:

"Licensing of contractors. -(1) With effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.

(2) Subject to the provisions of this Act, a licence under Sub-section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the Rules, if any, made under Section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions, as may be prescribed."

90. Section 13 provides the mode of application for a licence, under Section 12 and the grant thereof.

91. Sections 16, 17, 18 and 19 authorise the appropriate Government to make Rules requiring the contractor to provide and maintain for the use of contract labour, inter alia, canteens, rest room, first aid facilities, sufficient supply of drinking water, toilets and washing facilities. The said facilities are to be provided by the contractor as per the specifications and requirements enumerated in the respective Sections. Rules 25 (vi) and 40 to 62 stipulate the details for the provisions of these facilities.

92. Section 20(1) provides that if any of the amenities required to be provided under Sections 16, 17, 18 and 19 are not provided by the contractor within the time prescribed therefor, such amenities shall be provided by the principal employer. Sub-section (2) of Section 20 reads as under:

"All expenses incurred by the principal employer in providing the amenity may be recovered by the principal employer from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."

93. Section 21 reads as under:

"Responsibility for payment of wages. -(1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.....

(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."

94. Sections 23 to 26 provide that a contravention of the provisions of the Act including regarding employment of contract labour shall be punishable with imprisonment or fine or both.

95. Section 28 authorises the appropriate Government to appoint Inspectors for the purpose of the Act with powers of search and seizure as well as to examine various persons. Under Clause 29, every principal employer and every contractor is required to maintain certain registers and records giving the particulars of contract labour employed, the nature of work performed by such contract labour, the rates of wages paid to the contract labour and such other particulars as may be prescribed.

96. The Security Guards Act and the Contract Labour Act read as a whole establish that the Security Guards Board is not a contractor. A comparison of several provisions of the two Acts demonstrates this. We shall indicate only a few salient aspects in this regard.

(a) The definition of "contractor" under Section 2(c) of the Contract Labour Act itself demonstrates that the Board constituted under the Security Guards Act is not a contractor. Section 2(c) is as under:

"Contractor" in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or Articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor;

In Section 2(c) a contractor is defined as a person who "undertakes to produce a given result for the establishment". The Security Guards Board is not required either under the Security Guards Act or the Scheme framed thereunder to "undertake" any such task qua the registered employer. No such provision has been brought to our notice.

(b) It is axiomatic that the Board under the Security Guards Act is charged with a duty of regulating the employment and welfare of security guards in Maharashtra as a class in general and not qua individual security guards. This is clear from almost every provision of the Act. This is in stark contrast to a contractor under the Contract Labour Act who is concerned only with the particular workers employed by the contractor. While the Contract Labour Act and the Rules framed thereunder do require a contractor to abide by various requirements and adopt certain steps to regulate the employment and ensure the welfare of contract labour engaged by it, the same, is however, restricted to the contract labour engaged or employed by them and not to contract labour as a class. It is also axiomatic that contractors are not and cannot be concerned with contract labour in general.

(c) The functions of the Board under the Security Guards Act are such that a contractor, as contemplated in Section 2(c) of the Contract Labour Act, cannot carry out. The very nature of some of the functions of the Security Guards Board are not only entirely different but alien to the functions of a contractor as defined in Section 2(c) of the Contract Labour Act. For example under Section 6(1)(i) the Board is required to ensure the adequate supply and the full and proper utilisation of registered security guards for the purpose of facilitating and doing security work in any factory or establishment. A contractor contemplated under Section 2(c) of the Contract Labour Act is not and cannot be concerned with this objective. Under Section 6(11)(xi) the Board may settle disputes between registered employers and registered security guards. This is again a function which a contractor under Section 2(c) of the Contract Labour Act cannot discharge. Section 2(c) never contemplated a contractor enjoined with a duty to discharge such functions. Under the Security Guards Act, the Board is authorised to fix the wages and the terms and conditions of the service of a security guard. This is a function alien to a contractor, whether under the Contract Labour Act or otherwise.

(d) A contractor supplies contract labour to the employer at a rate and on the terms and conditions negotiated between themselves. True, the negotiated rate may be regulated by the Contract Labour Act. However, under the Security Guards Act, the registered employer is bound to pay the amount fixed by the Board under Section 3(2)(d) read with Clauses 6(11)(v) and 29 of the Scheme. There is no question of the registered employer negotiating with the Security Guards Board a rate and other terms and conditions in respect of registered security guards. In the absence of the Contract Labour Act, the wages and the terms and conditions of the workmen supplied by a contractor would have been negotiated with the employer. Under the Contract Labour Act the terms and conditions are regulated as per Rule 25 of the Rules made thereunder. But, in neither case is the contractor entitled, unilaterally on its own, to fix the terms and conditions of service. The contractor would be bound either by the provisions of the Contract Labour Act or by the terms and conditions negotiated with the employer. Under the Security Guards Act, it is the Board that decides these questions in accordance with the provisions thereof.

(e) Similarly, Rule 21(2) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 (hereinafter referred to as "the Contract Labour Rules") also militates against the proposition that the Board under the Security Guards Act is a contractor. Under Rule 21(2) every application for the grant of a licence by the contractor shall be accompanied by a certificate by the principal employer in Form v. to the effect that the applicant has been employed by him as a contractor in relation to his establishment. Under the Security Guards Act, there is no question of the Board being employed as a contractor by the registered employer. The security guards are supplied by the Board not as a result of any engagement between them but by operation of the provisions of the Security Guards Act.

The Board is required to redress disputes between the registered security guards and the registered employers. The machinery for the redressal of such disputes is provided in detail under Sections 31 to 36 of the Security Guards Act. The decision of the Board has the force of law by virtue of the statute itself. No such power is contemplated by the Contract Labour Act in favour of a contractor.

(f) Sections 20 and 21 of the Contract Labour Act also establish that the Security Guards Board is not a contractor. Under Sections 20 and 21 the contractor is responsible to provide and maintain the facilities referred to in Sections 16 to 19 and for the payment of wages to the workmen. If the contractor fails to do so the principal employer is bound to provide and maintain the facilities and recover the cost from the contractor. There is no such provision in the Security Guards Act. It would be stretching things a bit too far to suggest that the State Legislature intended foisting all the liabilities and obligations of a contractor under the Contract Labour Act on the Security Guards Board.

97. The entire Scheme under the Security Guards Act militates against the concept and the functions and responsibilities of a contractor under the Contract Labour Act and the nature of the Security Guards Board and its functions militate against the submission that the Security Guards Board is a contractor under the Contract Labour Act. This will be even more evident when we deal with the question of conflict between the Security Guards Act and the Contract Labour Act. We are, therefore, of the view that the Board constituted under Security Guards Act is not a 'contractor' within the meaning of Section 2(c) of the Contract Labour Act.

98. Ms. Desai, the learned counsel appearing on behalf of the Board, invited our attention to a judgment of D.R. dHANUKA J. (as his Lordship then was) in the case of Hussain Mithu Mhasvadkar v. Bombay Iron and Steel Board, 1990 II CLR 860. The learned single judge held that the Board under the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (hereinafter referred to as "the Mathadi Act"), is a statutory authority discharging regal functions of the State and hence the Board is not an industry. The provisions of the Mathadi Act are similar to those of the Security Guards Act. In view of what we have held it is not necessary for us to consider whether the Board is or is not a contractor on the basis that it discharges the regal functions of the State.

99. We have held that the Board is not a contractor within the meaning of that term in Section 2(c) of the Contract Labour Act. It follows, therefore, that the provisions of the Contract Labour Act do not apply to security guards in Maharashtra who are governed by the Security Guards Act.

100. There is, however, yet another hurdle in the way of accepting the submission under consideration. On behalf of the respondents it was submitted with a considerable force that the provisions of the Contract Labour Act are in conflict with those of the Security Guards Act and that the provisions of the latter must prevail over those of the former.

101. In our view, on the Security Guards Act coming into force, the employment of security guards in Maharashtra is governed by the provisions thereof and not by the provisions of the Contract Labour Act. The Contract Labour Act is not applicable to security guards in Maharashtra. (We shall deal with Section 22 hereafter).

102. Mr. Singhvi submitted that the Security Guards Act is not a complete code in itself. We are afraid, it is not possible to accept this submission. We are in agreement with the observations of SAWANT J., in Tradesvel's case (supra) in so far as it is held that the legislation is a complete code by itself and it is not open for the parties to look to any other rights and obligations. This aspect of the matter is no longer res integra in view of the judgment of the Division Bench of this Court (PENDSE J. (as his Lordship then was) and KAPADIA J.) in the case of Krantikari S.R.S. v. S.N. Naik, 1993-II-LLJ-1145 (Bom-DB). In paragraph 4 of the judgment it is held as under at p. 1147:

".....As regards the breach of provisions of the Security Guards Act, the Industrial Court was right in coming to the conclusion that the Security Guards Act, 1981 was a complete code and if there was any alleged breach, it was open to the appellants to move the Security Guards Board under the said Act of 1981 ........"

103. That in the event of there being a conflict, the provisions of the Security Guards Act will prevail over the provisions of the Contract Labour Act is also no longer res integra in view of the Division Bench judgment of this Court (BHARUCHA J. (as his Lordship then was) and KANIA J.) dated January 15, 1988, in the case of Security Guards Board for Greater Bombay and Thane v. Shri S. V. Sinha and the General Insurance Corporation in Writ Petition No. 1172 of 1987. In that case the Board challenged the action of the General Insurance Corporation in terminating the services of security guards supplied by it on the plea that the Regional Labour Commissioner insisted on compliance with the provisions of the Contract Labour Act and the notification dated December 9, 1976, taking the view that the provisions of the Security Guards Act are not applicable to the General Insurance Corporation which was stated to be bound by the Contract Labour Act. The Division Bench analysed the provisions of the two enactments and held as under:

"In view of the clear provisions of Article 254 of the Constitution of India, it is apparent that the stand taken that compliance with the Regulations of the Contract Labour Act, 1970 makes it mandatory to discontinue the services of the security guards employed under the provisions of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 is not sustainable. The provisions of the Maharashtra Private Security Guards Act, 1981 are perfectly legal and so far as the State of Maharashtra is concerned, it is obvious that they should prevail even over the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, assuming that there is any conflict between the provisions of the two pieces of legislation."

104. Mr. Singhvi, however, submitted that the Division Bench had not held that there was in fact any conflict between the two enactments. He placed considerable emphasis on the use of the word "assuming" by the Division Bench. We are unable to agree. The entire judgment discusses in detail the concept of legislative competence and the provisions of Articles 246(2) and 254(2) of the Constitution. The arguments of learned counsel considered by the Division Bench also related entirely to the question of conflict between the two legislations. In this context, in paragraph 7 extracted above the Division Bench held that "in view of the clear provisions of Article 254 of the Constitution" the insistence by the Regional Labour Commissioner that compliance with the Regulations of the Contract Labour Act is not sustainable. The judgment read as a whole indicates that the Division Bench was of the view that there was a conflict between the two enactments and that the provisions of the Security Guards Act should prevail over the provisions of the Contract Labour Act. The emphasis on a single word "assuming" is shorn out of context and misplaced.

105. In any event, we are at present concerned with the question as to whether the provisions in the two enactments as regards wages and conditions of service of registered security guards are in conflict with each other. It is necessary therefore to juxtapose the relevant provisions of the two enactments in this regard.

106. Rule 25(2)(v)(a) and (b) of the Contract Labour Rules reads as under:

"25. Forms and terms and conditions of licence. -.... (2) Every licence granted under Sub-rule (1) or renewed under Rule 29 shall be subject to the following conditions, namely:

(v)(a) in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work:

Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Chief Labour Commissioner (Central).

(b) in other cases the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor shall be such as may be specified in this behalf by the Chief Commissioner (Central).

Explanation. While determining the wage rates, holidays, hours of work and other conditions of service under Clause (b) above, the Chief Labour Commissioner shall have due regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments."

107. Section 3(1) and 3(2)(d) of the Security Guards Act and Clauses 6(11)(v) and 29(1) (at the cost of repetition) of the Scheme under the Security Guards Act read as under:

"3. Scheme for ensuring regular employment of security guards. (1) For the purpose of ensuring an adequate supply and full and proper utilization of security guards in factories and establishments, and generally for making better provision for the terms and conditions of employment of such workers, the State Government may by means of one or more Schemes provide for the 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.

(2) In particular, a Scheme may provide for all or any of the following matters, that is to say,

(d) for regulating the employment of registered security guards and the terms and conditions of such employment, including the rates of wages, hours of work, maternity benefit, overtime payment, leave with wages, provision for gratuity and conditions as to weekly and other holidays and pay in respect thereof."

"6. Functions of the Board. -(11) The Board may-

(v) determine the wages, allowances and other conditions of service including age of retirement of registered security guards."

"29. Wages, allowances and other conditions of service of security guards. -

(1) Without prejudice to the provision of any award, it shall be unless otherwise specifically provided for in this Scheme, an implied condition of the contract between a registered employer that the rates, allowances and overtime, hours of work, rest intervals, leave with wages and other conditions of service including supply of uniforms, boots, torches, batteries, etc. necessary for the proper and efficient execution of their duties, shall subject to the provisions of Sub-clauses (2), (3), (4), (5) and (6) of this Clause, be such as may be fixed by the Board for each category of security guards."

108. The following sub-clauses of Clause 29 of the Scheme contain detailed provisions regarding the manner in which the rates of wages, allowances, overtime and hours of work, rest intervals, leave with wage and other conditions of service for the registered security guards are to be arrived at.

109. It is clear from the aforesaid provisions that the wages and the terms and conditions of employment under the two enactments will differ vastly. Even the nature of arriving at the quantum as well as the terms and conditions of service are fundamentally different. Under the Security Guards Act, the rates of wages are fixed by the Board as psr the detailed procedure therein. Moreover, the wages determined under the Security Guards Act apply universally to all security guards in a given category. Further, it is pertinent to note that even the categories of security guards are determined by the Board. In stark contrast, under the Contract Labour Act, the rates of wages will fluctuate even between identically situated employees inter se. The fluctuation will depend in the first instance, upon the terms and conditions between the contractor and the employee and thereafter under Rule 25(2)(v)(a) depending upon the terms and conditions of workmen directly employed by the principal employer of the establishment or under Rule 25(2)(v)(b) depending on the rate fixed by the Chief Commissioner. The terms and conditions of workmen directly employed by the principal employer as contemplated in Rule 25(2)(v)(a) will necessarily differ from employer to employer. Even under Rule 25(2)(v)(b) the Commissioner of Labour while determining the terms and conditions is to have regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments. Thus, even while determining the wages under Rule 25(2)(v)(b) the aforesaid differences between workers will exist.

110. To reiterate, therefore, the mode of fixing the terms and conditions of workmen under the Contract Labour Act and security guards under the Security Guards Act differs vastly. Consequently, the rates of wages and other terms and conditions of workmen under the Contract Labour Act and security guards under the Security Guards Act will also differ. The fundamental policy underlying the two enactments in the matter of fixing the terms and conditions of employment are distinct.

111. It is clear, therefore, that the provisions of the two enactments relating to the terms and conditions of employment are in conflict with each other. The provisions of the Security Guards Act prevail over those of the Contract Labour Act. The provisions of the Security Guards Act have not been challenged.

112. Strictly, therefore, even assuming that the conclusion we have reached works injustice to the registered security guards (which it does not) it would not alter the situation. It is a fallacy to suggest that this interpretation would work any injustice to the security guards. The fallacy once again arises as a result of the petitioners considering the situation only from their point of view. The Security Guards Act was not enacted keeping in mind security guards engaged in any particular establishment. The enactment deals with security guards in general. The Legislature thought it fit to provide uniformity in the terms and conditions of service of security guards of a particular class inter se. The policy cannot be faulted and in any event has not been challenged. If viewed in the broader perspective the fallacy of the submission is apparent. For instance there could be registered employers who pay directly employed security guards wages less than those fixed by the Board for registered security guards. The Legislature, therefore, departed from the scheme laid down under the Contract Labour Act. In some cases registered security guards may earn less and in some cases they may earn more as a result of the wages fixed under the Security Guards Act.

113. Even, assuming that there is no direct conflict between the provisions of the two enactments, an analysis of the provisions thereof makes it clear that the Security Guards Act evinced an intention to cover, in any event, the field regarding the determination of the rates of wages and conditions of service of security guards. Consequently the two enactments are repugnant at least to this extent. For two enactments to be repugnant, it is not necessary that the provisions thereof must be diametrically opposed to each other. The Security Guards Act being the dominant law as observed above must prevail over the provisions of the Contract Labour Act regarding the terms and conditions of service of registered security guards. This view is supported by several judgments including of the Supreme Court.

114. In G.P. Stewart v. Brojendra Kishore Roy Chaudhury a Division Bench of the Calcutta High Court considered the meaning of repugnancy in detail. The judgment has been cited with approval by the Supreme Court. It would be useful to set out the observations of the Calcutta High Court at length:

"Meaning of "repugnancy".- It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says "do" and the other "don't", there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say "don't" but in different ways. For example, one law may say "No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time" and another law may say, "No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time." Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second one ; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified. This was the type of repugnancy that arose for consideration in [1896] AC 348. The Canada Temperance Act, 1886, (a Dominion Act) contained one set of prohibitions, while the Ontario Act, 53 Vict. c. 56 (a Provincial Act), contained another and a rather different set. Their Lordships of the Judicial Committee of the Privy Council held that where the prohibitions of the Dominion Act were or might be in actual operation the Provincial Act was or would be inoperative by reasons of repugnancy; but where the former were not in actual operation (by reason of their not having been locally adopted), there could be no repugnancy (pp. 369, 370 loc cit). The question of repugnancy or inconsistency has arisen and been considered in several Australian cases, with reference to Section 109, Commonwealth of Australia Constitution Act which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall to the extent of the inconsistency be invalid. (A summary of the cases will be found in WYNESS LEGISLATIVE AND EXECUTIVE POWERS IN AUSTRALIA ; and in STREET ON ULTRA VIRES.) In the earlier cases (e.g. 8 CLR 465; 10 CLR 266; 28 CLR 1), the test of inconsistency adopted was whether it was possible to obey both the competing laws. But in the case in 37 CLR 466, where the conflict was between an award of the Conciliation Court providing for a working week of 48 hours and a New South Wales Act providing for payment of overtime for any work in excess of 44 hours; it was recognized that the test was too narrow. iSACS J. observed that two statutes imposing respectively twenty and twenty-five lashes for robbery might in a sense be both obeyed by infliction of forty-five lashes and he therefore propounded a more satisfactory test thus: If however a competent Legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another Legislature assumes to enter to any extent upon the same field: (Page 490 Loc. cit.)

115. It is unnecessary to mention all the subsequent Australian cases where this test was adopted; we content ourselves with citing only [1930] 43 CLR 472 where DIXON J. observed that inconsistency depends on the intention of the paramount Legislature to express by its enactment completely, exhaustively, or exclusively what shall be the law governing the particular conduct or matter to which its intention is directed. When a Federal statute discloses such an intention it is inconsistent with it for the law of a State to govern the same conduct or matter.

116. In Canada, of course, apart from a few exceptional provisions, such as those relating to agriculture and immigration, the Constitution Act itself does not confer any concurrent powers of legislation. There are only two legislative lists, but it has been settled by a long line of Privy Council decisions that there can be a domain in which provincial and dominion legislation may overlap, in which case neither legislation will be ultra vires, if the field is clear, but that if the field is not clear and in such a domain the two legislations meet, then the dominion legislation must prevail Grand Truck Railway Co. of Canada v. Attorney-General of Canada [1907] AC 65.

117. Once again therefore we are led to the same test as that propounded by ISACS J. "Is the field completely occupied by the dominant Legislature?" In England, the question of repugnancy has been considered chiefly in relation to bye-laws being treated as ultra vires if it is repugnant to the general law. In Gentel v. Rapps [1902] 1 KB 160 CHANNELL J. has elucidated the meaning of repugnancy thus:

"A bye-law is not repugnant to the general law merely because it created a new offence and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land. I say by necessary implication because I have in mind the cases with respect to bye-laws prohibiting persons from travelling on railways without a ticket. In those cases bye-laws which impose the same penalty as the general law without making a fraudulent intention part of the description of the offence have been held to be bad, because the statute creating the offence says that there must be a fraudulent intention on the part of the person charged with travelling without a ticket and the bye-law therefore by implication alters the general law. Again, a bye-law is repugnant if it adds something inconsistent with the provisions of a statute creating the same offence ; but if it adds something not inconsistent, that is not sufficient to make the bye-law bad as repugnant.

All these propositions are really reducible to the single test of the "occupied field" for in the first and the last illustrations, the ground not being covered by the general law, there is no repugnancy and in the others, the ground is already covered, so that the bye-law is repugnant. In Strickland v. Hayes [1896] IQB 290, a bye-law which provided that no person shall use profane language in any street was held to be bad, because the general law, namely the Town Police Clauses Act, 1847, dealing with precisely the same subject, required that annoyance should be caused by the language used in order that there might be an offence. In [1900] 1 Ch D 10, a bye- law that no person shall frequent or use any street for the purposes of betting was held to be good and not repugnant to the general law, the Metropolitan Streets Act, 1867, Section 23 of which provided that any three or more persons assembled together in any part of a street for the purpose of betting shall be liable to a penalty. The ground of the decision was in effect that the general law in this case did not occupy the same field as the bye-law; the one was concerned with the subject of street obstruction and the other with that of betting. In Gentle v. Rapps (supra), a bye-law providing that no person shall use offensive language in a tram-car was held to be consistent with the Town Police Clauses Act, 1847, which punished any person who in any street used offensive language to the annoyance of the residents or passengers, because the latter law (relating, as it did, to nuisances in streets) did not intend to deal with or affect the power to make bye-laws under special circumstances and dealing with particular places (namely bye-laws relating to nuisances in tram-cars). The principle deducible from the English cases, as from the Canadian cases, seem therefore to be the same as that enunciated by ISACS J. in the Australian 44 hour case (37 CLR 466) if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law.''

118. Mr. J.P. Cama, learned senior counsel appearing on behalf of the registered employers-respondents in W.P. Nos. 1399 of 1997, 507 of 1999 and 1538 of 1999 invited our attention to the observations of the Supreme Court in the case of Thirumuruga Kirupananda Variar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu, . The Supreme Court cited with approval the above judgment of the Calcutta High Court. In para 26 the Supreme Court held as under:

"26. It cannot, therefore, be said that the test of two legislations containing contradictory provisions is the only criterion of repugnance. Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. The contention of Shri Sanghi that there is no repugnancy between the proviso to Section 5(5) of the Medical University Act and Section 10-A of the Indian Medical Council Act because both can be complied with, cannot, therefore, be accepted. What has to be seen is whether in enacting Section 10-A of the Indian Medical Council Act, Parliament has evinced an intention to cover the whole field relating to establishment of new medical colleges in the country."

119. The observations are applicable to the present case. We are of the view that the State Legislature clearly evinced by the Security Guards Act an intention to cover the field regarding the regulation of employment and welfare of security guards in Maharashtra.

120. There is yet another test of repugnancy where the dominant law is a complete exhaustive code. In Deep Chand v. State of U.P., , the Supreme Court accepted three tests of inconsistency or repugnancy referred to by NICHOLAS in his AUSTRALIAN CONSTITUTION (2nd edition, page 303), the second of which reads thus (page 665):

"(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code."

(The same test was subsequently endorsed by the Supreme Court in Tikka Ramji v. State of U.P., [1956] SCR 393 and in Zaverbhai Amaidas v. State of Bombay ).

121. As observed earlier the Division Bench of this Court in Krantikari SRS v. S.N. Naik [1993] 1 CLR 1003 has held that the Security Guards Act is a complete code in itself. Thus, this test of repugnancy or inconsistency squarely applies in the present case.

122. In the circumstances the above submission of Mr. Singhvi is rejected. We shall now deal with the judgments cited by Mr. Singhvi in support of the submission under consideration. We have already dealt with the unreported judgment of the Division Bench of this Court in the case of Security Guards Board for Greater Bombay and Thane v. Sinha in Writ Petition No. 1172 of 1987. The judgment, of course, was not relied upon by Mr. Singhvi in support of his case. His submission was that the Court did not hold that there is any conflict between the two Acts.

123. Mr. Singhvi, relying upon the judgment of the Supreme Court in Raghbir v. State of Haryana, submitted that the test for repugnancy is whether the two Acts are fully consistent and absolutely irreconcilable. Firstly, the Supreme Court did not hold that this is the only test of repugnancy. In paragraph 10, it is clearly stated that this is only one of the circumstances of repugnancy between two enactments. Thus, the other tests dealt with by us above for determining repugnancy between two enactments remain. Moreover, the judgment does not really assist us for determining the question of repugnancy between the Security Guards Act and the Contract Labour Act. In Raghbir's case, the enactments that fell for the consideration of the Supreme Court were the Haryana Children Act, 1974 and the Criminal Procedure Code, 1973. Section 21 of the Haryana Children Act provided that notwithstanding anything to the contrary contained in any law for the time being in force, no delinquent child shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing the security. The appellant was however convicted for the offence of murder and sentenced to imprisonment for life by the sessions judge. The appeal was dismissed by the High Court. Sections 5 and 27 of the Criminal Procedure Code read as under.

"5. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

27. Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. "

124. On behalf of the appellant, it was contended that Section 5 of the Criminal Procedure Code left the Haryana Children Act unaffected by the provisions of the Criminal Procedure Code and that, therefore, the Act remained wholly intact. The Supreme Court rejected the contention on behalf of the respondents that Section 27 was a specific provision to the contrary and as such affected the Haryana Children Act. The Supreme Court held that Section 27 is not a specific provision to the contrary within the meaning of Section 5 of the Criminal Procedure Code. There was, therefore, clearly no conflict between the two Acts. We fail to see how this judgment can be of any assistance to Mr. Singhvi.

125. Mr. Singhvi next relied upon the judgment of the Supreme Court in Ram Chandra Mawa Lal v. State of U.P. AIR 1987 SC 183 : 1984 Supp. SCC 28 and submitted that one of the tests of determination whether two enactments are irreconcilable or untolerable is to pose the question, can the State law be obeyed or respected without flouting or violating the Central law in letter and in spirit. He however, submitted that when the State law merely promotes the real object of both the laws it is in the real sense, supplementary or complimentary to the Central law. He submitted that unless two enactments are irreconcilable or intolerable, there would be no repugnancy between the two enactments. Firstly, once again it would be noticed that the Supreme Court treated this as only one of the tests of repugnancy and the other tests referred to by us earlier remained unaffected. We are unable to see how this judgment is of any assistance while deciding the question of repugnancy between the Security Guards Act and the Contract Labour Act. In Ram Chandra Mawa Lal's case, the Central Government in exercise of powers under Clause 3 of the Fertilizer (Control) Order, 1957 promulgated under Section 3 of the Essential Commodities Act, 1955, issued a notification fixing the maximum retail selling price of certain varieties of fertilizers to the consumers. By a subsequent notification, the Central Government made an upward revision in the maximum retail selling price of the said fertilizers. Thereafter, the State of U.P. issued a notification under the Fertilizer Prices (Supplementary) Order, 1974 in exercise of powers conferred by Rule 114 of the Defence of India Rules, 1971. Under this notification, the registered dealers were prohibited from charging to cultivators prices in excess of the maximum price prevailing immediately prior to the upward revision authorised by the Central Government in respect of stocks acquired at pre-revision rates held by the dealers on the eve of the upward revision of price. Thus, the dealers could sell to the cultivators the fertilizers at higher rates from out of the stocks acquired after the notification permitting upward revision in prices. The dealers were prevented from selling at the higher prices fertilizers from the existing stock acquired by them at lower rates immediately prior to the upward revision contained in the notification. In these circumstances, the Supreme Court observed that the U.P. Fertilizers Price (Supplementary) Order was not inconsistent with the earlier notification issued by the Central Government. It was held that the Central notification did not specifically deal with the question as regards selling price in respect of sales from existing stock acquired by the dealers on pre-enhanced prices which remained unsold with them and that the Central notification did not deal with this ramification at all. The Supreme Court held that the State notification spoke of a refinement of the subject about which the Central notification was blissfully unaware and was altogether silent about; that the two provisions did not overlap and therefore there was no real inconsistency. We fail to see how this judgment can be of any assistance to Mr. Singhvi either. The Supreme Court found that there was no inconsistency between the Central and the State enactments. In paragraph 44 of the report, the Supreme Court held that the two enactments were not irreconcilable and that there was no intolerable inconsistency. In the case before us as held above, we have come to the conclusion that the provisions of the Security Guards Act and the Contract Labour Act at least in so far as the provisions which relates to the terms and conditions of service of the registered security guards are concerned are irreconcilable and inconsistent.

126. Section 22 of the Security Guards Act itself indicates that the State Legislature expressly evinced an intention that the terms and conditions of service of security guards engaged after the coming into force of the Security Guards Act would be determined and governed by the provisions thereof. Further, as Mr. Dada, rightly pointed out, to accept Mr. Singhvi's contention would lead to an extremely incongruous situation neither provided for nor contemplated by the Security Guards Act. For instance if Mr. Singhvi's submission under consideration is to be accepted, the registered security guards terms and conditions of service would be governed by the Security Guards Act. On being allotted to a registered employer, the terms and conditions of the registered security guards would be governed by the Contract Labour Act. Then again if such security guard is withdrawn and reallotted to another registered employer his terms and conditions of employment would again be governed by the Contract Labour Act. It may well happen that the terms and conditions of directly employed security guards with the new registered employer may be less favourable than the terms and conditions offered to directly employed security guards by the previous employer. In that event, the registered security guard would receive lower remuneration and less beneficial terms and conditions of the employment with the new employer. We are in agreement with Mr. Dada that such a situation was not even remotely contemplated by the State Legislature and in fact the Security Guards Act militates against the same.

127. Mr. Singhvi also relied upon a judgment of the Supreme Court in the case of Gram Panchayat v. Malwinder Singh, and contended that the assent of the President under Article 254(2) of the Constitution of India was not an idle formality; that the President has at least to be appraised of the reason why his assent is sought; that if assent is sought and given in general terms so as to be effective for all purposes, different considerations would arise but that if assent is sought to the law for a specific purpose, efficacy of the assent would be limited to that purpose and cannot be extended beyond it. No basis or reason for this submission is pleaded. Moreover, the petitioners have not challenged the President's assent to the Security Guards Act. The judgment is therefore, of no assistance in the present case.

128. Mr. Singhvi relied upon the judgment of the Supreme Court in the case of National Engineering Industries Ltd. v. Shrikishan Bhageria, AIR 1988 SC 229 : 1988 Supp SCC 82 : 1988-I-LLJ-363. The Supreme Court held that the two Acts which fell for consideration, viz, the Industrial Disputes Act, 1947 and the Rajasthan Shops and Establishments Act, 1948 were supplemental to each other, dealt with the rights of the workmen to obtain redressal of their grievances and that there was no repugnancy between the two Acts because there is no conflict between these two Acts in pith and substance. Had we come to the conclusion that the Security Guards Act and the Contract Labour Act are supplemental to each other and that there is no conflict between them in pith and substance, we would have accepted Mr. Singhvi's submission under consideration. We did not understand Mr. Dada as having contended to the contrary either. But the fact of the matter is that we have come to the conclusion that there is a conflict between the two Acts and that the two Acts are not supplemental to each other at least so far as the terms and conditions of employment of the registered security guards are concerned. Moreover, even in this case the other circumstances of repugnancy are not negatived by the Supreme Court.

129; In National Engineering Industries Ltd.'s case, (supra), respondent had adopted proceedings Under Section 33-C(2) of the Industrial Disputes Act, 1947 claiming certain amounts on account of salary not paid to him by the appellant. The respondent had also filed an application under Section 28-A of the Rajasthan Shops and Establishments Act, 1948 which was dismissed on the ground of limitation. After going through the various stages of litigation before the Labour Court and the High Court, the matter reached the Supreme Court in a petition under Article 136 of the Constitution of India. The Supreme Court came to the conclusion that the respondent was a workman and that the application under Section 33-C(2) was, therefore, maintainable. The other question, with which we are really concerned, related to which of the two Acts would apply. Section 37 of the Rajasthan Act specifically provided that nothing therein shall affect any rights or privilege which an employee was entitled to under any other law, contract, custom or usage, award, settlement or agreement between the employer and the establishment where he is employed on the date the Act came into force, if such rights or privileges were more favourable to the workman than those to which he would be entitled to under the Rajasthan Act. It was contended on behalf of the appellant that there would be a conflict between the decisions in the application before the Rajasthan Act, which was dismissed and the application under the Industrial Disputes Act if it was allowed. Rejecting the contention, the Supreme Court held that under the Rajasthan Act, there was a period of limitation of six months, whereas there was no such period of limitation under the Industrial Disputes Act, 1947. The Supreme Court held that this amounted to a curtailment of the workmen's right under the Industrial Disputes Act and that being the case, the workmen would be entitled to protection of Section 37 of the Rajasthan Act. Consequently, the Industrial Disputes Act would prevail. In these circumstances the Supreme Court held: "In the premises there is no conflict between the two Acts and there is no question of repugnancy". The provisions of two enactments considered by the Supreme Court are totally different from the provisions of the Security Guards Act and the Contract Labour Act. The judgment, therefore, is of no assistance to Mr. Singhvi.

130. The last judgment relied upon by Mr. Singhvi was the case of Jugal Kishore v. State of Maharashtra, . Relying upon this judgment, Mr. Singhvi submitted that it is necessary to take a constructive attitude in interpreting the provisions of law and determine the main aim of the particular Act in question in adjudication before the Court. There can be no quarrel with this submission.

131. In the circumstances, the above submission of Mr. Singhvi is rejected.

Re. IV. The petitioners are entitled to the benefit of Rule 25(2)(v)(a) by virtue of the provisions of Section 22 of the Security Guards Act.

Section 22 reads thus:

"22. Rights and privileges under other laws not affected in certain cases. Nothing contained in this Act shall affect any rights or privileges, which any registered security guard employed in any factory or establishment is entitled to on the date on which this Act comes into force, under any other law, contract, custom or usage applicable to such security guard, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act and the Scheme:

Provided that, such security guard shall not be entitled to receive any corresponding benefit under the provisions of this Act and the Scheme."

132. The protection under Section 22 will, however, be available only to those security guards who were employed in any factory or establishment on the date on which the Security Guards Act came into force, i.e., June 29, 1981. As observed by SAWANT J. in Tradesvel's case (supra), the provisions of Section 22 are transitory in nature and not of a permanent duration. The provisions were made with a view to ensure that those who avail of higher benefits are not compelled to accept lesser ones merely because they are covered by the present legislation. Thus under the provisions of Section 22 if security guards employed with any agency or agent were entitled to higher benefits from such agent or agency, they would continue to be given the same benefits wherever they may be assigned by the Board thereafter.

133. Thus in each case it will have to be first decided by the competent authority as to whether the security guard is entitled to the benefit of the protection under Section 22 of the Security Guards Act. Thereafter, the details of the terms and conditions of each such security guard will have to be arrived at keeping in mind the provisions of Rule 25(2)(v)(a).

134. It is not possible for us in exercise of extraordinary jurisdiction under Article 226 of the Constitution to decide these questions of fact especially those relating to the details of the terms and conditions of service.

135. In Steel Authority of India, , the Supreme Court held as under atp. 1132 of LLJ:

"119. (5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the conditions as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the conditions as to academic qualifications other than technical qualifications.

120. We have used the expression 'industrial adjudicator' by design as determination of the questions aforementioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts is exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal/Court whose determination will be amenable to judicial review."

136. A Division Bench of this Court (R.M. lODHA and Ms. nISHITA MHATRE JJ.) in R.P. Kunder v. Indian Oil Corporation Ltd. by an unreported judgment dated October 9, 2001 in Writ Petition No. 917 of 1995 had occasion to consider a similar question. In that case it was contended on behalf of the petitioners, inter alia, that the petitioners were canteen employees; that despite working for a number of years they were not paid even minimum wages and were not considered as employees of the Corporation; that they were being treated as employees of the contractor although the contract between the Corporation and the contractor was sham and bogus and that therefore the petitioners were in fact employees of the Corporation and not of the contractor. The Division Bench after an exhaustive review of the authorities on the subject found on facts that on the face of the documents before it no inevitable conclusion as sought by the petitioners could be drawn; that the reply filed by the Corporation raised a serious dispute which could effectively be resolved only by recording evidence and not merely on the basis of material placed before the Court. Her Lordship Ms. N. mHATRE J. speaking for the Court held:

"We are of the view as laid down by the Apex Court in Steel Authority of India Ltd. 2001-II-LLJ-1087 that determination of the questions, whether the corporation is in absolute control of the canteen which is. merely being run through a contractor and whether the canteen contract between the Corporation and the contractor is sham and bogus would require an enquiry into disputed questions of fact which cannot be conveniently made by this Court in exercise of its jurisdiction under Article 226 of the Constitution. The appropriate authority to go into such questions and issues will be the Industrial Tribunal and, therefore, it would be necessary for the petitioners to justify the demand before the Industrial Tribunal/ Court on the basis of both oral and documentary evidence, that they are entitled to be regularised as workers of the Corporation."

137. It is sufficient to refer to the facts in Writ Petition No. 1623 of 1991. Almost every material fact is disputed and will require evidence to be taken and considered. We have already examined, earlier in the judgment, the petitioner's case. Respondent No. 1 has on the other hand contended that the security in the watch and ward buildings, terminals as well as the entire operational area of the airports vests exclusively in the hands of the Maharashtra State Police and the State Reserve Police Force; that it has no power or authority to engage watchmen whether directly or through any contractor to maintain security in the operational areas or to watch over the terminal buildings at the airport; that the security guards utilised by the first respondent are those who have been supplied by the Security Guards Board and that such security guards supplied by the Board are utilised primarily for guarding the vacant land of respondent No. 1 against encroachment. It was thus contended that even the notification of December 9, 1976, did not apply to the petitioners. Respondent No. 1 has also denied that it directly employed security guards to carry out work which is similar to that carried out by the petitioners; that the petitioners are interchangeable with the directly employed security guards and that they act as relievers for each other when necessary. There is even a dispute regarding the number of hours of duty and the payment of overtime wages. The petitioners have in turn denied the case of respondent No. 1.

138. It is not possible for this Court in exercise of its writ jurisdiction to resolve these disputed questions of fact. The petitioners who are entitled to the benefits of Section 22 of the Security Guards Act are at liberty to agitate such rights as they may have before the appropriate Court or Tribunal.

139. In the circumstances the petitions are dismissed with liberty to the petitioners to pursue the remedy, if any, before the appropriate Court or Tribunal. In the circumstances of the case, there shall be no order as to costs.

140. Certified copy expedited.

141. After we pronounced the judgment, a request was made on behalf of some of the petitioners to continue the stay order granted earlier by this Court for a period of 12 weeks. Taking into consideration the wide aspect of claims made and the interim reliefs earlier granted, we hereby direct that the interim relief wherever granted shall continue to protect the petitioners therein for a period of 12 weeks from today.