JUDGMENT - A.P. SHAH, J.:---These two writ petitions under Article 226 of the Constitution seek to challenge the notification dated 15-9-2001 issued by the State of Maharashtra amending the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981, hereinafter referred to as the Scheme, framed under the Maharashtra Private, Security Guards (Regulation of Employment and Welfare) Act, 1981, hereinafter referred to as the Security Guards Act.

2. The petitioners are trade unions registered under the Trade Unions Act, 1926 and have as their members security guards employed in various establishments in Mumbai and Thane. The principal challenge to the impugned notification is on the ground that the notification is ultra vires the provisions of the Security Guards Act. In order to understand the challenge in the petitions, it is necessary to briefly refer to the objects and the various provisions of the Security Guards Act and the Scheme framed union section 4(1) of the said Act.

3. The preamble of the Act shows that the Act was placed on the statute book for regulating the employment of private security guards employed in factories and establishments in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare, through the establishment of a Board, and for matters concerned therewith. It appears that there were serious complaints about the service conditions of about 70,000 persons working as security guards in various factories and establishments in Greater Mumbai and Thane Industrial Complex, the majority of whom were employed through about 250 security agencies operating in those areas. The complaints related not merely to insufficient remuneration paid to them by the agencies, but also to insecurity of service and other forms of exploitation. There was a sample survey conducted by the Government of Maharashtra to ascertain the extent of exploitation and to secure information regarding the service conditions of the security guards. It was recommended by the committee which made the sample survey that it was necessary to prevent exploitation of the unprotected security guards and to prove them with better service conditions. Pursuant to the report of the committee, the Government issued the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Ordinance, 1981. The Ordinance was replaced by the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. Pursuant to the powers conferred by section 4 of the Act Government of Maharashtra, after consulting the Advisory Committee made Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981. The Act was amended by the Legislature by Amendment Act 28 of 1996.

4. We shall now briefly refer to the relevant provisions of the Act and the Scheme. Sub-section (3) of section 2 defines employer in relation to a security guard in the direct employment of an agency or agent and deployed in a factory or establishment through such agency or agent, to mean such agent or agency. Sub-section (8) defines principal employer, in relation to any class or classes of security guards deployed in a factory or establishment by the agency, agent or boards, to mean the person who has ultimate control over the affairs of the factory or establishment and includes any other person to whom the affairs of such factory or establishment are controlled whether such person is called authorised representative, Manager, or by any other name prevailing in the factory or establishment. Sub-section (1) defines “security guards” or “private security guard” to mean a person who is engaged through any agency or an agent or Board to do security work or watch and ward work in any factory or establishment but does not include the members of any principal employer's family or any person who is a direct employee of the principal employer.

5. Section 3 of the Act gives powers t

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