Bombay High Court
Raj Harsh Sud And Ors. vs Union Of India (Uoi) And Ors. on 12 October, 1995
Equivalent citations: 1996(2)BOMCR293
JUDGMENT D.R. Dhanuka, J.
1. This petition is finally heard at the admission stage on the footing that the Court shall dispose of the petition finally at the admission stage in view of the urgency involved. The petition has been argued at considerable length and with thorough preparation on either side on the footing of final hearing.
2. Rule heard forthwith for final hearing. Perused the petition and the affidavits filed on either side and also the compilation of documents.
3. The petitioners have filed this petition for issue of a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction so as to compel the respondents to issue continuous discharge certificates to the petitioners and for various consequential reliefs set out in prayer (b) of the petition.
4. The petitioners are all ex-naval sailors (ex-naval ratings) having served in the Indian Navy for about 15 to 20 years. The petitioners have annexed a statement of particulars pertaining to the petitioners which is marked as Annexure Exhibit 'A' to the petition. The contents of the said statement are not controverted by the respondents. During the years 1994-95, the petitioners were released from their service in the navy, the dates of such release having been duly specified in the statement Exhibit 'A' to the petition. As raw recruit and even thereafter, the petitioners had intensive and extensive pre-sea training for a period of six months as well as trade training as set out in para 4 of affidavit of petitioner No. 1 dated 9th October, 1995. The petitioners made their respective applications to respondent No. 3 for issue of continuous discharge certificate within a period of six months from the date of their release from Indian Navy as contemplated under the Merchant Shipping (Continuous Discharge Certificates) Rules, 1993 as amended by the rules known as Merchant Shipping (Continuous Discharge Certificates) Amended Rules, 1995. The said amended rules came into force on or about 20th January, 1995. If the petitioners want to avail of the job opportunity with a shipping company in the Merchant Navy the petitioners would need 'continuous discharge certificate' issued by respondent No. 3 while applying for the job.
5. The petitioners have filed this petition on behalf of themselves and others similarly situated ex-Indian Navy Sailors. The petitioners fall in the category of "Ex-Naval Ratings" under the above referred rules concerning issue of continuous discharge certificate. Section 99 of the Merchant Shipping Act, 1958 provides that no person shall engage or carry to sea any seaman under the Act in any ship, except a home-trade ship of less than two hundred tons gross, from any port in India unless the seaman is in possession of a certificate of discharge or a continuous certificate of discharge issued under part VII of the Merchant Shipping Act, 1958. The respondents have declined to issue 'continuous discharge certificate' in favour of the petitioners on the ground that the petitioners have not complied with Rule 4(5) of the above referred rules and the petitioners are not eligible to obtain such a certificate. The petitioners have contended that the Rule 4(5) of the above referred rules is not applicable to the case of the petitioners and the petitioners have complied with all the applicable conditions of eligibility. The petitioners contended that the respondents are unlawfully and arbitrarily withholding the issue of continuous discharge certificates as the ex-naval ratings are in great demand from the Shipping Companies and the respondents are prejudiced against the petitioners. The controversy raised in this petition is by and large covered by decisions of this Court. In my opinion, there is no merit in the defence pleas.
6. In view of there being certain factual controversy, this Court decided to invite the Shipping Corporation of India Limited to render assistance to this Court on certain factual aspects of the matter by its order dated 21st September, 1995. The Shipping Corporation of India has responded to the invitation of the Court and has filed an affidavit of Shri Vinay Asthana, Assistant General Manager, Fleet Personal Department of the Shipping Corporation of India giving certain factual information to the Court having some bearing in the matters in controversy. The Shipping Corporation of India Limited has been good enough to brief Shri P. Ramswamy, an experienced Counsel of this Court to render assistance to the Court. The Court is thankful to the Shipping Corporation of India Limited as well as to learned Counsel Shri Ramswamy for this fine gesture even though the Shipping Corporation of India Ltd. is not concerned with this litigation. The affidavit filed on behalf of Shipping Corporation of India Ltd. to the effect that no training is required in case of ex-navy sailors is of considerable assistance to the petitioners.
7. In exercise of the powers conferred by section 457 of Merchant Shipping Act, 1958 and in supersession of the Merchant Shipping (Continuous Discharge Certificates) Rules, 1960, the Central Government has framed the rules called Merchant Shipping (Continuous Discharge Certificate) Rules, 1993. The said rules are applicable to seaman engaged on ships (including off-shore vessels or vessels plying between main-land and Andaman and Nicobar Islands etc.) other than Name Trade Ships of less than 200 tons gross. The said rules were amended by notification dated 20th January, 1995. The amended rules are required to be interpreted and applied in this petition. In particular, the controversy centres round the interpreting and applicability of Rule 4(5) of the said rules.
8. Rule 3 of the said rules as amended provides that any person who fulfils the eligibility conditions as specified in the said rules may apply to the Shipping Master for the issue of a Continuous Discharge Certificate.
9. Rule 4 of the said rules prescribes the conditions of eligibility for issue of Continuous Discharge Certificate for seamen other than certificated officers. The conditions of eligibility for certificated officers are separately set out in Rule 3 of the said rules. The petitioners are not certificated officers. Rule 5 of the said rules has thus no relevance for our purpose. Rule 4 of the said rules consists of seven sub-rules. Rule 4(1) of the said rules prescribes that the applicant should be a citizen of India. The petitioners are undoubtedly citizens of India. Rule 4(2) of the said rules as amended prescribes the age limit for making of the application for Continuous Discharge Certificate. Different age limit is prescribed in respect of the applicants falling in four different categories. Rule 4(7) of the said rules reads as under :
(2) Age Limit :-
(i) for deck and engine trainees Between 13 and 22 Years.
(ii) for other categories Between 18 and 25 years,
(relax able upto 30 years
(Bhandary, Bhandary Mate
at the discretion of the Director General of
Shipping in utility steward, utility hand
deserving cases on compassionate
(Deck & Saloon) and Third cook.
(Ground).
(iii) For party Officers Between 18 and 25 years.
(Carpenter. Chief steward,
Electrician, Fitter, Machinist,
pump men and purser)
(iv) For ex-Naval ratings Upto 40 years." Provided the
application is made
within a period of six months from the date
of release.
Rule 4(3):--of the said Rules prescribes separate educational qualifications for each of the categories specified therein. Rule 4(3) does not prescribe any qualification for Ex-naval ratings. Perhaps it was not considered necessary to prescribe any such qualification for this category of seamen. Rule 4(4) of the said Rules prescribes that the applicant should possess certificate in the prescribed form issued under Merchant Shipping (Medical Examination) Rules, 1986 to the effect that he is medically fit to be employed on ships.
(Note:-The attention of the Court was drawn by the learned Counsel on either side to the Merchant Shipping (Medical Examination) Rules, 1986.)
10. Rule 4(5) of the said Rules is directly relevant for our purpose. The said Rule as amended reads as under :
"(5) The applicant selected as a rating by a shipping company for the category of Deck and Engine is required to undergo pre-sea training courses as approved by the Director General of Shipping and conducted by the Government approved/recognised training establishment."
The petitioners are not selected by any shipping company for category of Deck and Engine. The petitioners are thus not required to undergo pre-sea training course in terms of the said Rule. Having regard to the plain language of the above referred rule, it appears to be so. The petitioners are not interested in seeking any job for the category of Deck and Engine. Can the petitioners be precluded from having Continuous Discharges Certificate from the shipping master? Rule 4(6) of the above referred rules is not relevant for our purpose. Rule 4(7) of the said rules is also not relevant for our purpose.
11. The learned Counsel for respondents did invite attention of the Court during the course of his arguments also to the rules called Merchant Shipping (Seamen's Employment Officers) Rules, 1986 and particularly Rule 5 thereof. The said Rules deal with subject matter of registration of seamen at the employment office and are not relevant for our purpose. The learned Counsel for the respondent invited the attention of the Court to the guidelines issued by the Director General of Shipping dealing with the subject matter of eligibility for registration of a seaman as contemplated under Rule 4 and Rule 5 of the above referred rules read with section 12 of the Merchant Shipping Act, 1958. In my opinion, the 1986 Rules and the guidelines issued by the Director General of Shipping are not germane for interpretation of Rule 4(5) of the Rules dealing with the subject matter of Continuous Discharge Certificates.
12. It appears that the above referred rules pertaining to issue of continuous discharge certificates separately dealt with the category of applicants known as 'ex-naval ratings'. It appears to be so from the scheme of the rules under consideration particularly Rule 4(2) of the rules. It has been so held by Division Bench of this Court in Writ Petition No. 2577 of 1994 referred to in later part of this judgment. The ex-naval ratings constitute a separate category of applicants for the purpose of the above referred rules. It is not the mandate of the said rules that each of the sub-rule forming part of Rule 4 is necessarily applicable to each and every category of applicant. Rule 4(3) of the said rules prescribes educational qualification for certain category of applicants. No educational qualification is prescribed for the applicant who falls in the category of ex-naval ratings for, the purpose of seeking 'Continuous Discharge Certificate'. Similarly, Rule 4(6) of the said rules is applicable only to certain category of applicants. It is therefore required to be judged as to whether Rule 4(5) of the said rules is applicable to the petitioner who fall within the category of ex-naval ratings.
13. The learned Counsel for the petitioners has submitted that the requirement of undergoing pre-sea training course is prescribed by Rule 4(5) of the above referred rules is applicable only to the applicants falling in the category of "deck and engine trainees" i.e. those who are apprentice and who are within the age group of 10 and 22 and not to ex-naval sailors/ex-navy ratings,. There appears to be considerable force in this submission of the learned Counsel for the petitioners. I accept the submission. I respectfully concur with the view taken by Hon'ble Division Bench of this Court consisting of A.C. Agarwal and Vishnu Sahai, JJ., in Writ Petition No. 2577 of 1994.
14. The learned Counsel for the petitioners has further submitted that having regard to the plain language of Rule 4(5) of the said Rules, Rule 4(5) of the said rules can be applicable only where the applicant is selected as ratings by a shipping company for the category of Deck and Engine. The petitioners are not selected as ratings by a shipping company for the category of Deck and Engine or otherwise. Thus the condition prescribed for applicability of Rule 4(5) of the said Rules as set out in the opening part of the rule is not at all attracted in these cases. Rule 4(5) of the said Rules requires that such an applicant on the date of application for issue of Continuous Discharge Certificate must have been selected as a rating by a shipping company for the category of deck and engine. The petitioners do not fall in this category at all. The petitioners are still searching for the job opportunity and the petitioners are prevented at the threshold by the shipping companies from making application for employment unless the petitioners first produce Continuous Discharge Certificates. The respondents Nos. 1, 2 and 3 want to invoke Rule 4(5) of the said Rules and contend that the petitioners must first be selected as ratings by a shipping company, the petitioners should thereafter undergo pre-sea training course and later an obtain the Continuous Discharges Certificates. This is putting cart before the horse. In case of ex-naval ratings, no such condition is applicable. The plain language of Rule 4(5) of the above referred rules militates against the construction of Rule 4(5) of the said Rules canvassed for and on behalf of the respondents by the learned Additional Solicitor General.
15. The respondents have contended in their affidavit-in-reply that the application for issue of Continuous Discharge Certificate cannot be considered by respondent No. 3 unless the name of the petitioner is first sponsored by a Shipping Company for training course in the category of deck and engine employees. The question of the petitioners being sponsored by a Shipping Company for such training does not and cannot arise as Rule 4(5) of the said rules is not applicable at all to the case of the petitioners and the petitioners are not selected as ratings by a Shipping Company. It appears to me that the respondents are misconstruing Rule 4(5) of the said rules.
16. The learned Counsel for the petitioners has submitted that no pre-sea training is prescribed as a condition precedent for issue of Continuous Discharge Certificate in respect of category of applicants who fall within the category of ex-naval ratings. The learned Counsel for petitioners has relied upon paragraphs 4 to 7 of the affidavit of H.B. Pandit, dated 9th October, 1995. It appears that a raw recruit on joining the Indian Navy is given extensive training for a total period of 210 weeks and the ex-naval persons go through pre-sea training, leadership training and other trainings during the course of their working as sailors at the Indian Navy. The learned Counsel for the petitioners has submitted that it is rather strange that the respondents should require the petitioners to go for training meant for apprentices after their names are sponsored by a Shipping Company. I agree with the learned Counsel for the petitioners. There is considerable force in this submission of the learned Counsel for the petitioner. Shri Vinay Asthana, the Assistant General Manager, Fleet Personnel Department of the Shipping Corporation of India Ltd., a Government of India undertaking, has highlighted the actual practice followed in the shipping trade in paragraphs 9 and 10 of his affidavit dated 27th September, 1995. It is stated by the responsible officer of the Shipping Corporation of India Limited that there is no question of the petitioners being required to go for training since the petitioners have already worked for sufficient number of years (15 to 20 years) with the Indian Navy. Paragraphs 9 and 10 of the said affidavit read as under :-
"9. Since the petitioners have already worked for sufficient number of years with the Indian Navy and as they are not Ratings and further as they hold a particular trade as their subject, in my submission they are not required to go for training since they are already trained'.
"10. I further submit that the Ratings are apprentices or hamals and for instance in all such cases training is required to be given and thereafter they are entitled to get the C.D.C. Unskilled labourers are appointed as Ratings. They are mainly helpers and if they get trained during the course of their employment in any particular trade (for instance helper to Fitter or helper to Electrician etc.) they become persons holding technical qualifications by experience and as such they are eligible for promotion. A Rating after necessary training or experience or qualification becomes Able Sea Man and further promotion given to him is that of a dock or engine office."
The training prescribed by Rule 4(5) of the said Rules appears to have been prescribed only for the apprentice or hamals or persons who are at the threshold of their career as seamen and who are keen to take employment as seaman in the category of deck and engine. The learned Counsel for the respondents has submitted that the training required for being employed for merchant vessels is altogether of a different kind than the training imparted to the sailors while working with the Indian Navy. I am not at all impressed by this submission of the learned Counsel for the respondents. Whatever it may be, Rule 4(5) is not applicable except to those who satisfy the opening words of the rule and who fall within the category of such applicants on the date of application for issue of Continuous Discharge Certificate. In my opinion, Rule 4(5) of the said rules is not at all ambiguous and the said rule is not at all applicable to the cases of ex-navy sailors and this line of argument, with respect, has no merit whatsoever. The legal interpretation of Rule 4(5) of the rules by the Court fits in also with actual practice as set out in paragraphs 9 and 10 of affidavit of Shri Vinay Asthana.
16A. The learned Counsel for the respondents has made a fine distinction between the terminology used in section 4(2)(i) of the said rules in so far as the words used are "for deck and engine trainees" and the terminology used in Rule 4(5) of the said Rules in so far as the said rule uses the words "for the category of deck and engine". The learned Counsel for the respondents has submitted that Rule 4(5) of the said rules is thus, liable to be construed so as to take within its sweep all seamen who fall within the category of 'deck and engine' and not liable to be restricted merely to deck and engine trainees. I am not convinced. In any event, it is obvious to me that Rule 4(5) of the said rules is applicable only if every single ingredient of the said rule is satisfied. Neither the petitioners are selected as ratings by a Shipping Company at this stage nor the petitioners fall within the category of deck and engine. Let the petitioners obtain the Continuous Discharge Certificates as contemplated under the above rules and seek the necessary job opportunity with a Shipping Company. In my opinion, the respondents are not entitled to withhold the above referred opportunity to the ex-naval sailors by withholding the Continuous Discharge Certificate.
17. The learned Counsel for the petitioners contended that the petitioners do not fall by any stretch of imagination within the 'category of deck and engine employees'. There is force in this contention of the learned Counsel for the petitioner as well.
18. The learned Counsel for the respondents has relied upon report of the committee appointed by the Government of India on the issue of Continuous Discharge Certificates etc. The attention of the Court was invited by the learned Counsel for the respondents to the summary of important recommendations made by the said Committee and particularly recommendation Nos. 4, 5 and 10. In my opinion, the said recommendations have no relevance to the interpretation of Rule 4(5) of the said Rules. Rule 4(5) of the statutory rules cannot be interpreted with aid of the Committee report. The Committee report does not throw any light on interpretation of Rule 4(5) of the Rules.
19. The respondents have withheld the issue of Continuous Discharge Certificates on the ground that the names of the petitioners were not sponsored by any Shipping Company and that the petitioners have not undergone the pre-sea training course conducted by the Government approved/recognised training establishments. In my opinion, Rule 4(5) of the above referred rules is not at all applicable to this case. The name of the petitioners could not have been sponsored by a Shipping Company on the date of application for issue of Continuous Discharge Certificate. The respondents have thus acted without jurisdiction and without authority of law while with-holding the issue of Continuous Discharge Certificate on the above referred grounds. The petitioners are thus deprived of a reasonable opportunity to seek jobs in Merchant Navy without any justification.
20. The attention of the Court was invited by Counsel on either side to advertisement appearing at p. 56 of the compilation, published by the Shipping Corporation of India Ltd., specifying the conditions as under :
"Candidates holding valid D.C. need only apply."
The petitioners could not apply for the job in absence of Continuous Discharge Certificate. The respondents contend that the petitioners must be first selected for the job by a Shipping Company and thereafter the respondent No. 3 would consider the application of petitioners for issue of Continuous Discharge Certificate. It appears to me that the stand taken by the respondents is arbitrary and opposed to law.
21. By order dated 14th August, 1995, I had directed that pending further orders, the respondent No. 2 shall make arrangement for medical examination of the petitioners as contemplated under Rule 4(4) of the Merchant Shipping (Continuous Discharge Certificates) Rules, 1993 as amended read viz. Merchant Shipping (Medical Examination) Rules, 1986. There is a consensus at the Bar that this order of the Court has been duly complied with and the petitioners have obtained the necessary medical certificates from the respondents concerned as required by the rules, Thus on this count there is no legal impediment for issue of Continuous Discharge Certificates.
22. In the result, the petition succeeds. Rule is made absolute in terms of prayers (a) and (b)(ii). The respondents are directed to extend the benefit of this judgment to all the applicants who are similarly situated.
23. The learned Counsel for the respondents applies for stay of the operation of the order passed by this Court since the respondents desire to file an appeal against the order passed by the Court.
24. In Pratap Krishan Rew v. The Director General of Shipping and others, , the Division Bench of our High Court allowed the writ petition and directed issue of Continuous Discharge Certificates in favour of Naval Seaman Sailors who had served the Navy for a decade and two. The Court is informed that Special Leave Petition was preferred by the respondents against the said judgment and order and the same was rejected.
25. By an order dated 15th December, 1994 Ashok Agarwal & Vishnu Sahai, JJ., decided application for interim relief in Writ Petition No. 2577 of 1994. The Division Bench of this Court interpreted Rule 4(5) of the Merchant Shipping (Continuous Discharge Certificate) Rules, 1993. Agarwal, J., speaking for the Bench in terms observed that the Deck and Engine trainees were distinct from Ex-Naval Ratings and Rule 4(5) of the above referred Rules was inapplicable, to the petitioners who were Ex-Naval Ratings. I am completely in agreement with the view taken by the Division Bench of this Court in the above referred matter. A special leave petition was preferred by the respondents against the said order also. On 6th February, 1995, petition for Special Leave to Appeal (Civil) No. 1971 of 1995 preferred by the respondents was decided by the Apex Court. The order of the Supreme Court reads as under :
"It is stated an behalf of the respondents that the certificate has already been issued to all the respondents pursuant to the impugned order dated 15th December, 1994 which is challenged in this S.L.P. Admittedly, the main writ petition is pending for decision in the High Court. In view of this situation it is unnecessary to entertain this S.L.P. The questions raised in the S.L.P. against the impugned interim order would remain available to the petitioners for being raised, if necessary, against the final judgment of the High Court in case that situation arises."
If the respondents were serious in challenging the interim order of the Division Bench of this Court passed on 15th December, 1994, the respondents would have preferred the Special Leave Petition in time. The respondents are discriminating between citizens and citizens without any justification. It is the case of the petitioners that the Department is denying the issue of Continuous Discharge Certificate in favour of the ex-naval sailors as the respondents desire to favour new recruits and every day's delay is causing irreparable loss to the petitioners who want to seek job opportunities elsewhere having been discharged by the Indian Navy.
26. In view of the above, stay of the operation of the writ issued by this Court is refused.
27. The respondents are directed to issue the Continuous Discharge Certificate in favour of the petitioners on or before 17th October, 1995. This order shall operate subject to the further orders which the respondents may be able to obtain from the Appeal Court. On the basis of Continuous Discharge Certificate, the petitioners shall be entitled to make an application for an appropriate job to a Shipping Company. The respondents shall not be prejudiced merely by reason of making of such application.
28. Liberty to the respondents to take out separate proceedings for compensation for being denied the opportunity to seek employment in Merchant Navy by reason of wrongful refusal of Continuous Discharge Certificate as issued by the Court.
29. The parties are directed and authorised to act on the basis of the copy of the operative part of this order duly authenticated by the Associate of this Court. The associate shall affix his rubber stamp on the copy for the purpose of authentication.
30. Issue of certified copy expedited.