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High Court of Judicature at Bombay
S.C. DHARMADHIKARI, J.
M/s. B.A. Continuum Solutions Pvt. Ltd. & Others
Versus
The State of Maharashtra & Another
Criminal Application No.756 of 2012
Decided on : 10-05-2013
Aim of provisions of Act, 1981 for regulation of employment and Welfare of Private Security guards, must receive an interpretation which will advance its purpose and not defeat it.
Maharashtra Private Security Guard Scheme, 2002 - Clause 42 - Interpretation of penal provisions.
Since scheme 2002 takes care of aims and objects of Act hence penal provisions contained in Clause 42 is to be read harmoniously with provisions of Act, Rules and other preceding provisions of scheme.
Maharashtra Private Security Guard Scheme, 2002 - Clause 42(1) - Word "Whoever".
Word "whoever" used in Clause 42(1) of scheme, takes within its fold all those persons on whom obligations provided under Scheme 2002. - In the present case the word "whoever" has been advisedly used and in a broad sense. It takes within its fold all those on whom there are obligations and which have to be discharged by them. Their failure to discharge those obligations is an offence under the Scheme. When the Scheme provides penalties for its contravention, then, the word "whoever" must be interpreted in the context and in the backdrop of the obligations which have to be discharged in terms of the Scheme. These obligations have to be discharged by the registered Security Guards, by registered principal employers, by employer agencies and by principal employers of the employer agencies.
Equally, there is a restriction on employment by Clause 28 of the Scheme and it is the duty of every registered principal employer to engage either Security Guards registered with the Board or the Security Guards of the employer agency registered with the Board or employ any person who is a direct employee of such employer. If these restrictions are not abided by then, depending upon who has to discharge the obligations and on whom the restrictions are in imposed, the penalties will have to be awarded.
Thus commencing with the duty to get registered, as set out in Clause 13 of the Scheme, failure to carry out that duty and equally failure to discharge the obligations or a contravention in discharging the same or contravention of the clauses in that behalf have been made a punishable offence and that is how penalties have been provided by the Scheme. It is not as if the wording in the Clause 42 of the Scheme is surpluses.
Maharashtra Private Security Guard Scheme, 2002 - Clauses 42(1), 42(2) - Imposition of penalty.
Once there is contravention of Scheme, penalty under Clause 42(1) can be imposed on individuals by applying test of ultimate control. - When there is a contravention of particular Clauses of the Scheme, the penalty has to be imposed and of imprisonment and fine. That has to be imposed in the cases of principal employers, on a person who has ultimate control over the factory or establishment. That can be imposed also on any other person to whom the affairs of such factory or establishment are entrusted.
Whether such person is called Authorized Representative, Manager or by any other name prevailing in the factory or establishment, there is no escape from the penalty for contravention of the clauses of the scheme providing for duties and obligations of the principal employers. The penalty has to be imposed by identifying the person who has ultimate control over the affairs of the factory or establishment. A person to whom the affairs are entrusted is also presumed to have ultimate control. Therefore, the words "ultimate control over the affairs of the factory or establishment" are wide enough and by Clause 42(1) of the Scheme, penalties can be imposed by applying the test of ultimate control. It is not as if Clause 42(2), of the Scheme only makes individuals liable.
The individuals are brought in even by sub-clause (1) of Clause 42 of the Scheme and in case of everybody excluding employer agencies. However, when offence under the Act and the Scheme has been committed by the employer agency and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of the Proprietor. Partner, Director, Manager, Secretary or other Officer of the employer agency, then, such Proprietor, Manager Secretary or other Officer of the employer agency shall also deemed to be guilty of that offence and shall by liable to be proceeded against and punished accordingly.
Therefore, it is not as if any vicarious liability is being brought in. Once there is a contravention of the Scheme and the penalty has to be imposed, then, that is taken care of by Clause 42(1) of the Scheme and when an offence under the Act and the Scheme has been committed, which may include contravention thereof by an employer agency, then, that is an aspect deal at with by Clause 42(2) of the Scheme.
Maharashtra Private Security Guard Scheme, 2002 - Clauses 42(1), 42(2) - Vicarious liability.
Thought, no vicarious liability contemplated under Clause 42(2) yet it would not mean that officers in control of establishment under Clause 42(1) would not be liable.
1. Rule. By consent, Rule made returnable forthwith.
2. Mrs. Mane, learned A.P.P., waives service on behalf of the Respondent-State and Mrs. Lata Desai waives service for the Respondent No.2.
3. By this Criminal Application, the Applicants are invoking powers of this Court under Section 482 of the Criminal Procedure Code, 1973 to quash and set aside the order dated 9th May, 2012 passed by the learned Additional Sessions Judge, Court of Sessions for Greater Bombay, in Criminal Revision Application No.388 of 2011.
4. The Applicants are also seeking to quash and set aside the proceedings in Criminal Complaint No.6008/SS/2010 and an order dated 11th May, 2010 of the learned Additional Chief Metropolitan Magistrate, 16th Court at Ballard Estate, Mumbai, issuing summons for appearance of the Applicants.
5. A complaint has been filed by the Respondent No.2/Original Complainant alleging offences punishable under Clause 42 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 2002, (for short “the Scheme”). The complaint alleges contravention of Clause 13(1)(c) of the Scheme read with Section 3 (3) of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, (for short referred to as “the Act”). The complaint alleges that the Respondent No.2/Original Complainant is appointed as an Inspector under Section 16 of the said Act and thus is a “Public Servant”. It is alleged in the complaint that the Applicant No.1 is a Factory/Office/Establishment, whereas the Applicant Nos.2 to 4 are Vice President, Managing Director and Senior Manager of Applicant No.1/Accused No.1. These are, thus, persons who are in-charge and have ultimate control over the affairs of Accused No.1/Applicant No.1 before me. The Accused are termed as “principal employers” within the meaning of the said Act and the Scheme.
6. The complaint thereafter alleges as under:-
“3. The Head Office of Accused No.1 is at Tower I, Phase II, 3rd & 4th Floor, Logitech Park, Andheri-Kurla Road, Saki-Naka, Andheri (E), Mumbai – 400 072.
4. On 28/05/2009 at 11:45 a.m. the Complainant visited the Establishment of Accused at Tower I, Phase II, 3rd & 4th Floor, Logitech Park, Andheri-Kurla Road, Saki-Naka, Andheri (E), Mumbai 400 072. At the time of the visit of the Complainant Mr. Santosh Vartak, Sr. Manager Security was present on behalf of the Accused. Complainant found 4 Security Personnel on duty by the names Mr. K. Pandharkar, Mr. Sachin Shingare, Ms. Sushma Mane & Mr. Deepak Singh. On enquiries with the said personnel on duty, it was learnt that they are engaged through Security Agency by name M/s. G4S Security Services (India) Pvt. Ltd. On further enquiries with the personnel, it was learnt that the Accused were engaging in all 38 Security Personnel (1 Security Officer + 3 Security Asst. Officer + 1 Security Supervisor + 3 Head Guards + 27 Security Guards + 3 Lady Guards) through the said agency. The Complainant noted down the salaries and particulars of the personnel on duty and obtained his/their signature/s on the Annexure A attached to the Inspection Report. The Complainant also obtained the signature of Mr. Santosh Vartak, Sr. Manager Security, present on behalf of the Accused No.1 at the time of inspection on Inspection Report as well as Annexure A attached to the Inspection Report wherein the information and particulars of security personnel were taken. The Complainant further directed the Accused, to produce records marked on page 2 of the Inspection Report and to comply with the directions as per page 2 of Inspection Report within stipulated time. However the accused failed to produce the same & comply with the directions within the stipulated time.
5. The Accused are employing private security guards as mentioned in paragraph 4 above. They are thus the principal employers within the meaning of Section 3(8) of the said Act and under Clause 13 of the said Scheme. They are, therefore, required t
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