Bombay High Court
Mah. Suraksha Rakshak Va ... vs State Of Bank Of India Through ... on 23 June, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1771/2013
PETITIONERS : 1. Maharashtra Suraksha Rakshak Va
Ashangathit Kamgar Sanghatana,
Nagpur, Regd., No.5056, through
Its President Shri Narayan Mahale,
aged about 50 years.
2. Vijay s/o Sukhadev Titare,
Aged about 48 yrs., Occ. : Service.
3. Prakash s/o Pundlikrao Kakade,
Aged about major, Occ. Service.
4. Pramod s/o Haribhjan Lokhande,
Aged about 40 yrs., Occ : Service.
5. Divakar s/o Namdeorao Thool,
Aged about major, Occ : Service.
6. Anil s/o Wasudeo Kotangale,
Aged about major, Occ : Service.
7. Surendra s/o Shamrao Tembhurne,
Aged about major, Occ : Service.
8. Rajesh s/o Vithobaji Parate,
Aged about major, Occ : Service.
9. Indranath s/o Eknath Mandpe,
Aged about major, Occ : Service.
10. Yeshvant s/o Vitthal Devlikar,
Aged about major, Occ : Service.
11. Sukhadeo s/o Deochandra Shende,
Aged about major, Occ : Service.
12. Dharampal s/o Baliram Wasnik,
Aged about major, Occ : Service.
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13. Prashant s/o Narayan Wanjari,
Aged about major, Occ : Service.
14. Sunil s/o Janardhan Dongre,
Aged about major, Occ : Service.
15. Vinod s/o Shankarrao Khobragade,
Aged about major, Occ : Service.
16. Manoj s/o Shyamrao Khobragade,
Aged about major, Occ : Service.
17. Prabhakar s/o Bajirao Saraf,
Aged about major, Occ : Service.
18. Bhalchandra s/o Gulabrao Barapatare
Aged about major, Occ : Service.
19. Kishor s/o Narayanrao Gokhale,
Aged about major, Occ : Service.
All R/o C/o M.S.R.V.A.K. Sanghatana
O/o Bhartiya Communist Party Office,
Rahul Complex, Near S.T. Stand, Nagpur.
...VERSUS...
RESPONDENTS : 1. State Bank of India,
Through its Zonal Manager, Kingway,
Kasturchand Park, Nagpur.
2. Central Investigation & Security
Bureau Services Ltd., Nagpur,
12-A, Redcross Road, Sadar,
Nagpur - 440001.
3. Nagpur Security Guard Board,
Civil Lines, Bhosla Chambers,
Nagpur, through its Chairman.
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4. State of Maharashtra,
Through its Secretary, Department of
Industries and Labour, Mantralaya,
Mumbai - 32.
(Amended as per order dated 07.04.2014)
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Shri M.V. Mohokar, Advocate for petitioners
Shri M. Anilkumar, Advocate for respondent no.1
Shri D.M. Kakani, Advocate for respondent no.2
Shri M.R. Pillai, Advocate for respondent no.3
Mrs. H.N. Prabhu, AGP for respondent no.4
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 23.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioners seek a direction against the
respondent no.1 - State Bank of India and the respondent no.2 -
Company to comply with the provisions of the Maharashtra Private
Security Guards (Regulation of Employment and Welfare) Act, 1981 and
to restrain the respondent no.1 - Bank from engaging unregistered
security guards in place of the petitioner nos.2 to 19. The petitioners have
also sought a direction against the respondent no.1 and 2, restraining
them from terminating the services of the petitioners and from engaging
other unregistered security guards through the unregistered security
guards agency. Certain other ancillary prayers are also made in the writ
petition.
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The petitioner no.1 claims to be an Union of Security Guards
and the petitioner nos.2 to 19 claim to be the security guards engaged for
the security of 18 A.T.M. Centres of the State Bank of India in several
parts of Nagpur city. According to the petitioners, the petitioner nos.2 to
19 are eligible for appointment to the posts of security guards and
therefore the respondent no.2 - Company appointed and posted them at
various ATM centres of the State Bank of India. It is stated that the
petitioners are working in the ATMs for a long time. It is stated that
though the respondent no.2 - Company is an agency of security guards
and is required to register itself under the Act of 1981 as an agency, the
respondent no.2 has not taken any steps in that regard. It is submitted
that an inspection was conducted by the Security Guards Board some time
in the year 2010 for the ATMs of the State Bank of India in several parts
of the city and it was found that the petitioners were working in the ATMs
as security guards. It is submitted that the petitioners had applied to the
Security Guards Board for their registration and the petitioners are
registered security guards that are continuously working with the
respondent no.1 and 2 on the respective ATM centres. Since according to
the petitioners, the respondent nos.1 and 2 have not fulfilled their
obligation by getting themselves registered as an employer and agency
respectively, pertaining to the ATMs though the respondent no.1 has
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appointed the petitioners as security guards at the ATMs through the
respondent no.2. In the aforesaid set of facts, the prayers referred to
herein above, are made by the petitioners.
Shri Anilkumar, the learned Counsel for the State Bank of
India has denied the claim of the petitioners. It is submitted that the State
Bank of India is registered as an employer under the Act of 1981 in
respect of its Banks and security guards are engaged by the State Bank of
India in various branches of its Banks. It is, however, submitted that the
State Bank of India does not require any security guards for the ATMs of
the Bank and hence it is not necessary for the State Bank of India to get
itself registered as an employer under the Act of 1981. It is submitted that
even as per the regulations - guidelines of the Indian Banks' Association,
it is not necessary for the Banks to post security guards at the ATMs as the
ATMs have enough security due to the usage of CCTV cameras, alarms
etc. It is stated that the Banks do not require security guards at the ATMs
though they require the security guards for the various branches of their
Banks. It is submitted that an agreement was entered into between the
State Bank of India and the respondent no.2 - Company on 7.1.2013 and
as per this agreement the respondent no.2 only provides caretaker
services at the ATMs. It is submitted that in the aforesaid background, the
respondent - Bank is not required to get itself registered for the ATMs
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under the Act of 1981. It is submitted that since it was wrongly claimed
by the Security Guards Board that the petitioners were working as
security guards at the ATMs of the State Bank of India, the State Bank of
India has made a representation to the State Government raising an
objection to the claim of the Security Guards Board that the petitioners
are working as security guards in the ATMs of the Bank. The learned
Counsel sought for the dismissal of the writ petition.
Shri Kakani, the learned Counsel for the respondent no.2 -
Company has also denied the claim of the petitioners. The learned
Counsel took this Court through the various clauses in the agreement
executed between the State Bank of India and the respondent no.2 -
Company to show that what was sought to be provided at the ATMs was
not security guards but only caretakers. It is submitted that even a Lathi is
not possessed by the caretakers at the ATMs. It is submitted that the
caretakers are required to only ensure that the ATMs are kept clean and
in a hygienic condition and even the glasses and other material which is
required for the purpose of drinking water is kept clean. The learned
Counsel took this Court through every clause in the agreement executed
between the State Bank of India and the respondent no.2 to point out that
not a single clause in the said agreement would show that the petitioners
or for that matter the employees that were provided by the respondent
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no.2 - Company at the ATMs were required to do any job or duty that is
required to be performed by the security guards. It is submitted that it is
highly improbable that the officer of the Security Guards Board would
conduct the inspection at various ATMs that are situated at a great
distance from each other at a given point of time and on a particular day
as is sought to be depicted in the report. It is submitted that a show is
sought to be made by the Security Guards Board to point out that an
inspection was conducted though it was not. It is submitted that if an
inspection was conducted, the signatures of all the security guards that
were found in the ATM centres would have found place in the inspection
report. It is submitted that though the names of several persons are
mentioned in the report that were found to have been working as security
guards, the signatures of only two of them are found in the inspection
report. It is submitted that the inspection report is a bogus one and no
inspection was carried out or conducted by the Security Guards Board. It
is stated that most of the petitioners have not reported for duty and are
not working in the ATMs, on behalf of the respondent no.2 - Company. It
is submitted that the petitioners are not registered with the Security
Guards Board and in the circumstances of the case, the petition is liable to
be dismissed.
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Shri Pillai, the learned Counsel for the Security Guards
Board fairly states on instructions that the petitioners are not yet
registered with the Security Guards Board. It is submitted that when the
inspection was conducted from time to time, it was found that the
petitioners were working in the ATMs as security guards and in this
background, a notice was issued to the State Bank of India and the
respondent no.2 - Company, asking them to get themselves registered
under the Act of 1981. It is submitted on instructions that it is possible
that all the security guards may not be present at the time of inspection
and hence, the signatures of all the security guards are not found in the
inspection reports that are placed on record by the petitioners and the
respondent - Board. It is submitted that an appropriate order may be
passed in the circumstances of the case.
On hearing the learned Counsel for the parties and on a
perusal of the documents annexed to the writ petition, it appears that the
petitioners are not registered security guards. We find that an objection -
dispute pertaining to the applicability of the Act and the scheme to the
ATMs of the State Bank of India and the respondent no.2 - Company is
pending before the State Government. Therefore, though we find on a
reading of the agreement executed between the State Bank of India and
the respondent no.2 - Company dated 7.1.2013 that the State Bank of
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India has not sought the services of security guards at the ATMs and only
the services of caretakers are required, we are not inclined to record a
finding in this regard in this writ petition. We have minutely perused each
and every clause in the agreement dated 7.1.2013 but from none of the
clauses it could be gathered that security guards are sought to be
provided by the respondent no.2 - Company to the State Bank of India at
their ATMs. We have no reason to disbelieve the statement made on
behalf of the State Bank of India that it does not require security guards
at their ATMs. When a Bank has got itself registered under the Act of
1981 in respect of various branches of its Banks, we fail to gauge as to
why the Bank would be shy of getting itself registered under the Act of
1981 in respect of its ATMs if at all the Bank really requires the services of
security guards at the ATMs. We further find from a perusal of the
inspection reports that there is some irregularity in the preparation of the
reports by the Security Guards Board. The officer making the inspection
can only record about the persons present at the time of his visit and can
only report that he had noticed the concerned persons working as
security guards in the ATMs. However, the names of certain others who
do not appear to have been working at the time of the inspection - visit
also find place in the inspection note, and therefore, it prima facie appears
to us that some of the entries made in the inspection report must be on
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hearsay, that is, on the basis of the information supplied by the person
who was actually present. In our view, this cannot be a manner of making
the inspection. When at the time of an inspection a particular person is
found to have been working as a security guard it would be necessary for
the officer carrying out the inspection to make an entry about that person
only. It may be possible that a person who is actually manning the ATM,
either as a security guard or as a caretaker whatever the case may be, can
falsely give the names of others who may not be employed either by the
Bank or the Company at all. We therefore cannot fully rely on the
inspection reports prepared by the Security Guards Board. Moreover, we
find that though the inspection is shown to have been carried out at a
particular time and on a particular day in about four ATMs, it appears
that the four ATMs are situated at a considerable distance from each
other. The reports do not show at what time a particular ATM in a
particular locality was inspected and who was found to be working in the
ATM at that time. We expect the Board to carry out better inspection from
now as the inspection notes that are annexed to the petition do not
inspire confidence. In any case, since the matter/dispute whether the
State Bank of India is liable to be registered as an employer and the
respondent no.2- Company is liable to be registered as an agency under
the Act of 1981 is pending before the State Government, we would not
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issue any directions against any of the respondents in this case. It would
be necessary for the State Government to decide the representation filed
by the State Bank of India, in accordance with law. The question as to
what remuneration is liable to be paid to the petitioners as caretakers or
security guards and whether it is payable or paid would not be a question
which could be decided in this writ petition, in view of the disputed
questions of facts. The parties are at liberty to agitate this question before
the appropriate forum.
Hence, for the reasons aforesaid, the writ petition is
disposed of with no order as to costs. The State Government may however
make an endeavour to decide the representation made by the State Bank
of India as early as possible. Order accordingly.
JUDGE JUDGE
Wadkar
