Who Is Securing You? A Look At Laws Regulating Security Guards, Agencies In Maharashtra

When it comes to protecting our businesses and places of work the go-to solution is to engage security agencies or guards. One cannot emphasis enough the need to have professional and trained security at your establishments. This brings us to the question of who can provide you with such services and which are the legislations that govern security agencies and guards, especially in our state?  

In Maharashtra, there are essentially two legislations. First, a national level legislation—the Private Security Agencies (Regulation) Act, 2005 (PSAR Act) and second, a state level legislation—the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 (MPSG Act).

While both these legislations govern the business of providing security, they are slightly different in their application and object.

The purpose of the PSAR Act is to regulate the operation of security agencies. It applies when a security agency is hired to protect commercial establishments, property in general and people. The PSAR Act, amongst other things, prohibits a person from carrying on business as a security agency without obtaining a license first. Agencies must also check the antecedents of a person before employing them as guards.

The MPSG Act is a welfare regulation, regulating the employment of security guards to ensure fair conditions of employment. It only applies to security guards deployed with shops and commercial establishments. It does not apply to guarding people and property in general. Violations under the MPSG Act are criminal offences.

The MPSG Act recognises three types of employment of security guards— one, direct employment, two, guards registered with a guard board who then deputes them to particular establishments, and three, where the guard is employed with an agency and has an exemption from the operation of the MPSG Act (i.e., exempt guard). Exemptions from the operation of the MPSG Act can be granted to a guard or class of guards if the state government feels that the benefits being provided to the guards in question are at least the same as the benefits that the MPSG Act provides.

Unfortunately, the MPSG Act, and its Scheme (MPSG Scheme) contain some critical inconsistencies.

As per the MPSG Scheme, every principal employer (that is, the shop or establishment engaging either a registered guard or an exempt guard), security agency and guard have to be registered with the relevant guard board. In Mumbai, this is the ‘Security Guards Board for Brihan Mumbai and Thane District’.

While Para 28 (1) of the MPSG Scheme permits a registered principal employer to engage exempt guards, Para 25 (2) of the MPSG Scheme states that a registered principal employer can either employ guards allotted by the Guard Board, or through direct employment, and not an exempt guard. As a result of this inconsistency, in practice, once a principal employer registers, then they can only employ a security guard either from the Guard Board or by direct employment. Hence, while on the one hand a principal employer can engage an exempt guard but must then register with the Guard Board, on the other hand once it registers with the Guard Board, it is prohibited from engaging an exempt guard.

This inconsistency has caused issues for many shops and establishments and has exposed them to criminal prosecution.

Further, previously, as per the MPSG Act, read with the MPSG Scheme, the penalty for not using a board security guard was a fine of up to Rs 500/- and/or imprisonment of three months for the first violation; a fine up to Rs 1,000/- and/or imprisonment of six months for the second/subsequent violation; and Rs 100/- per day for every day the violation continues.

On April 11, 2023 the MPSG Act was amended stating that the state government could amend the MPSG Scheme to provide that the fine would be up to Rs 5,00,000/- and Rs 10,00,000/- for the first and second/subsequent violations, respectively and up to Rs 5,000/- per day in case of a continuing violation, and that imprisonment could be removed. Further a provision was added in the MPSG Act to make the violations compoundable, that is, payment of the prescribed fine to close the case.

However, the MPSG Scheme itself has not yet been amended. While the Act would override the MPSG Scheme in case of inconsistencies, it has been noticed that the offences are not being compounded and may remain so until the Scheme itself is amended, and requisite rules are made to govern the compounding process. Therefore, offenders are still exposed to imprisonment and practically have not been able to compound an offence.

It is hoped that when the MPSG Scheme is ultimately amended to bring it in line with the 2023 amendment to the MPSG Act, the Government of Maharashtra will also remove the internal inconsistency as to engagement of exempt guards by registered principal employers. It would be important for various establishments to examine this issue and mitigate the potential risks for non-compliance of the MPSG Act.

Raj Panchmatia and Peshwan Jehangir are Partners, and Anindya Basarkod is a Principal Associate at Khaitan & Co.

Disclaimer: The views expressed here are those of the author, and do not necessarily represent the views of NDTV Profit or its editorial team.