Bombay High Court
Marine Management Services (Private) ... vs Anil Kumar Jaiswal And Ors. on 5 August, 1999
Equivalent citations: (2001)IIILLJ94BOM
Author: D.G. Deshpande
Bench: D.G. Deshpande
JUDGMENT D.G. Deshpande, J.
1. Heard counsel for the petitioners, respondents 1 and 2 and learned A.P.P. for the State.
2. This petition is filed to challenge the order passed by the Additional Chief Metropolitan Magistrate on the complaint of respondent 1 under Section 145 read with Section 143 of the Merchant Shipping Act, 1958 by which the petitioner-company was directed to pay certain sum towards the wages of respondent 1 along with interest and costs of Rs. 5,000.
3. Firstly it was contended by counsel for the petitioner that when an application is made by a seaman to the Magistrate, the same is to be decided in a summary way, and therefore, according to him, the procedure prescribed for summary trial in the Criminal Procedure Code is applicable to such application under Section 145 of the Merchant Shipping Act. 1958 (hereinafter referred to as Merchant Shipping Act), and since in the instant case the judgment was pronounced by a Judge who had not heard the matter or in other words, a Judge who heard the matter was different from the Judge who decided the matter, according to him, the trial is vitiated.
4. This submission cannot be accepted because the right given to a seaman or apprentice under Section 144 of the Merchant Shipping Act to recover his wages is a civil right and the forum through which he could make this recovery is the Metropolitan Magistrate. Every matter dealt with by the Metropolitan Magistrate cannot be considered to be a criminal matter or criminal trial when Metropolitan Magistrates are empowered to deal with certain matters under the Acts like Merchant Shipping Act. Power is conferred upon Metropolitan Magistrates to try not only cases under Criminal Procedure Code, but also under those special Acts and, therefore, all the provisions of the Criminal Procedure Code are not automatically attracted in such matters.
5. It appears from the wording of Section 145 of the Merchant Shipping Act that the Legislature wanted and intended to provide speedy remedy for seaman or apprentice for recovering his wages by a separate forum quickly and speedily and that Legislature did not want seaman or apprentice to file civil suit and wait for years together for result of the same. It is for this reason that the Metropolitan. Magistrates are empowered over matters pertaining to recovery of wages by seaman or apprentice under Section 145 of the Merchant Shipping Act.
6. It is true that Section 145 empowers the Magistrate to decide the application in a summary way. However, there is basic difference in this litigation under Section 145 and criminal cases which Magistrate is empowered to decide summarily or by adopting procedure for summary trial. Obviously, procedure for summary trial is not applicable for application under Section 145 because firstly, it is not a criminal case or trial. Secondly, employee is not referred to accused and thirdly, no punishment is prescribed for non-payment of wages under any of the provisions of the Act or Section 145 in this case. Therefore, contention of the counsel for the petitioner that proceedings under Section 145 of Merchant Shipping Act were summary trial, cannotbe accepted. There is no illegality if one Magistrate hears the application under Section 145 and another Magistrate, i.e., his successor pronounces the judgment. The argument raised in this regard by the counsel for the petitioner is required to berejected.
7. The second and most important question raised by the counsel for the petitioner was that the petitioner was not a ship registered in India or registered under the Merchant Shipping Act and secondly, that ship never touched Indian Port and, therefore, according to him, provisions of Merchant Shipping Act cannot be applicable so as to enable respondent 1 to file application under Section 145. My attention was drawn to relevant provisions of the Merchant Shipping Act. On the face of it, there appears to be strong basis for this submission. However, closer scrutiny of the provisions of Merchant Shipping Act shows that this contention is required to be rejected. It is true that respondent 2 is not Indian National or Indian Citizen and the ship in which respondent 1 was employed was never registered in India. It is also true that respondent 1 was employed by Ugland Brothers, U.K and ship where respondent 1 was working was not registered as Indian Ship under the Merchant Shipping Act.
8. However, it is a fact that respondent 1 is a seaman and he is Indian seaman employed by respondent 2. To protect the seamen such provisions have been made in the Merchant Shipping Act, from Section 114 onwards. Title of these sections is "Engagement of seamen by masters of ships other than Indian Ships." Section 114 further provides procedure for engaging seamen by ship other than Indian Ships and under these provisions agreement to engage seaman has to be made before Shipping Master in the manner prescribed by this Act for making agreement in the case of foreign going Indian Ships. Sub-section (3) of Section 114 provides that the Master of a ship other than Indian Ship shall give to the Shipping Master a bond with the security of some approved person resident in India for such amount as may be fixed by the Central Government in respect of each seaman engaged by him, in any part in India. Section 115 empowers the Central Government to prohibit the owner, master or agent of any ship other than an Indian Ship, if it is found necessary so to do in the national interest or in the interest of seamen generally.
9. In this context it was contended by the counsel for the petitioner that Section 114 cannot apply to respondent 1 because he was not engaged at any Port in India but he was posted in Port outside India. I am not inclined to accept this submission because it is devoid of any substance, admittedly respondent 1 is Indian and he was engaged by ship other than Indian Ship, i.e., by foreign ship. It is a fact that he was engaged in India and he reserved Foreign Ship and it is to be assumed that he was taken from some Indian Port to ship of petitioner and respondent 2.
10. Provisions of Section 114 further shows that Indian seaman cannot be engaged on ship other than Indian Ship unless provisions of Section 114 are strictly complied with. The letter of appointment of respondent 1 which is filed at Exhibit A to this petition will show that Port of engagement of respondent 1 is shown as Bombay. A contract of employment is entered into with Marine Management Services (Private), Ltd., Bombay, as agent for and on behalf of Ugland Brothers of U.K. Exhibit A further shows that green copy was retained by Bombay Office, pink copy was sent to Master and yellow copy was retained by the company. This agreement Exhibit A for contract for employment falsifies the case of the petitioner that respondent 1 was not engaged in Bombay. The very fact that Port of engagement shown as Bombay frustrates the submission. Secondly the fact that petitioner was acting as agent of respondent 2 and that it was the petitioner who employed respondent 1 for respondent 2 will show that this engagement was done as agent of respondent 2 by following provisions of Section 114.
11. For all these reasons, claim and contentions of the petitioner supported by respondent 2 are liable to be rejected and petition is required to be allowed partly.
ORDER (1) Petition is partly allowed.
(2) Rule is partly made absolute.
(3) The judgment of the trial Court is modified as under:
Petitioners to pay US Dollars 1273.58 as arrears of wages and US Dollars 1500 as damages and also pay interest at the rate of 6 per cent per annum from the date of application till full payment together with costs of Rs. 5,000 to respondent 1. Payment already received by respondent 1 shall be excluded from the aforesaid directions. Certified copy expedited.