Bombay High Court
P.B. Abdul Rehman And Ors. vs Director General Of Shipping And Ors. on 22 April, 1993
Equivalent citations: 1994(1)BOMCR134, (1993)95BOMLR239
Author: Sujata Manohar
Bench: Sujata Manohar, S.H. Kapadia
JUDGMENT Sujata Manohar, J.
1. This entire group of writ petitions is filed by ex-seamen who are citizens of India and who have worked with the Merchant Navy. Most of the petitions are filed by groups of such seamen. They claim to possess valid Discharge Certificates, and/or experience certificates issued to them by the Masters of the vessels on which they have worked. They also possess certificates of having received training in survival at sea, fire fighting and first aid. The petitioners claim that they are entitled to obtain Continuous Discharge Certificates as well as registration with the Seamen's Employment Board at Bombay. These have been denied to them. They have, therefore, prayed for a writ of mandamus directing the respondents to issue a Continuous Discharge Certificate as per their trade along with a Red Book, which, we are told, is the registration book and also a no objection to take employment in any Shipping Company. According to the petitioners, they are entitled to such a Continuous Discharge Certificate (hereinafter referred to as CDC for short) as per the Merchant Shipping (Continuous Discharge Certificate) Rules, 1960, as well as to registration with the Seamen's Employment Board at Bombay.
2. The petitioners had applied for a CDC. In the case of the petitioners in Writ Petition Nos. 2932/91 and 1463/92, their appplications for CDC have been rejected by the respondents. In the case of other petitioners in other writ petitions, we are informed that their applications are pending and have not been considered. In the case of those petitioners who have received a rejection letter, the grounds set out are, inter-alia, that the petitioners are not seamen as defined under section 3(42) of the Merchant Shipping Act, 1958. The other grounds are that they do not possess the requisite qualifications regarding age, education, physical fitness and training. The petitioners have challenged such rejection of their applications. They contend that they possess the requisite qualifications for the issue of a CDC.
3. In order to appreciate the contentions raised on behalf of the petitioners and the respondents, it is necessary to look at some of the relevant provisions of the Merchant Shipping Act, 1958. Preamble to the Act states, inter-alia, that it is an "Act to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to serve the national interests." Section 2 of the Act provides that the Act will apply (a) to any vessel which is registered in India; or (b) to any vessel which is required by this Act to be so registered; or (c) to any vessel which is owned wholly by persons who are citizens of India or by a company which satisfies the requirements of section 21 which basicall requires that a substantial holding in the company should be by Indian citizens. Sub-section (2) of section 2, however, provides that the Act will also apply to other vessels while they are within India including its territorial waters unless there is an express provision to the contrary. In short, the Act applies not merely to Indian vessels but also to foreign vessels while they are within Indian territorial waters.
4. The term "seaman" is defined under section 2(42) to mean "every person (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship under this Act, but in relation to sections 178 to 183 (inclusive) includes a master." Therefore, the term "seaman" covers every member of a ship's crew. It was submitted before us that this has a reference only to the crew of an Indian Ship. There is, however, no warrant for such an interpretation. "A ship under this Act" cannot be interpreted to mean only a Ship which falls under section 2(1) of the Merchant Shipping Act, 1958. Section 2(2) covers foreign ships also. The term "Seaman" is freely used throughout the Act and the Act applies not merely to Indian Ships but also to foreign ships so long as they are in the Indian territorial waters. Therefore, it would not be proper to restrict the definition of "Seaman" only to the crew of an Indian Ship. It will extend to crews of all ships to which the provisions of the Merchant Shipping Act, 1958 apply. In fact, the phrase a "ship under this Act" has a reference to the definition of ship under section 2(45). A ship is defined under this section as follows:
Section. 2(45)...
"ship" does not include a sailing vessel."
Therefore, crew of all ships which are covered under the Act come under the definition of "Seaman". It was also submitted that the petitioners are not seamen under the Act because they do not possess a CDC under this Act. This contention cannot be accepted in view of the wide definition of the term "seaman" under section 2(42). The first contention, therefore, of the respondents has to be rejected.
5. With regard to the entitlement of the petitioners to a CDC, it is necessary to refer to sections 98 and 99. Under section 98, the Central Government may, by a notification in the Official Gazette, direct that seamen generally or any category of seamen shall not be engaged or carried to sea to work in any capacity in any ship unlesss each of them possesses the prescribed qualifications. Section 98(2) also prescribes a certificate of physical fitness as set out therein. Sub-section (3) empowers the Central Government to make Rules which may provide for the courses of training to be pursued, the vocational standards to be attained or the tests to be passed by seamen generally or by any class of seamen in particular. Rules may also provide for standard of physical fitness, the nature of medical examination, the form and contents of medical certificates and so on.
6. Section 99 provides as follows:
"Section 99. No person shall engage or carry to sea any seaman under this 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 this Part."
Both these sections 98 and 99 are under the sub-heading "Engagement of Seamen" under Part VII of the Act which Part deals with "Seamen and Apprentices". Under section 98 the only Rules which have been shown to us are Merchant Shipping Medical Examination Rules of 1986. No other notification has been issued under section 98 prescribing other qualifications. Section 99 prohibits a person from being engaged as a seaman on any ship (except a home-trade ship of less than two hundred tons gross) from any port in India unless he possesses a Certificate of Discharge or a Continuous Discharge Certificate.
7. Provisions relating to a Certificate of Discharge and Continuous Certificate of Discharge are to be found under sections 118, 119 and 120 which are under the sub-heading "Discharge of Seamen." Section 118(1) provides as follows:
"Section 118(1). When a seaman serving in a foreign-going ship is, on the termination of his engagement, discharged in India, he shall, whether the agreement with the crew be an agreement for the voyage or a running agreement, be discharged in the manner provided by this Act in the presence of a shipping master."
Sub-sections (2) and (3) of section 118 deal with discharge of seamen on home trade ships. Section 119 which deals with a Certificate of Discharge, is as follows:
"Section 119(1). The master shall sign and give to a seaman discharged from his ship in India, either on his discharge or on payment of his wages, a certificate of his discharge in the prescribed form specifying the period of his service and the time and place of his discharge.
(2) The master shall also, upon the discharge of every certificated officer, whose certificate of competency has been delivered to and retained by him, return the certificate to the officer".
Under section 120(1) when a seaman is discharged from a ship in India, the master of the vessel is required to furnish to the shipping master a report relating to the work of the seaman. Section 120(2) deals with a Continuation Discharge Certificate. It is as follows:
"Section 120(2). A seaman who is entitled to certificate of discharge under section 119 may, if he so desires, be granted by the master, in lieu of the certificate referred to in sub-section (1) of the said section or the report referred to in sub-section (1) of this section, a continuous discharge certificate specifying the period of his service together with an endorsement stating-
(a) the quality of the work of the seaman; or
(b) whether the seaman has fulfilled his obligations under the agreement with the crew; or
(c) that he declines to express an opinion to those particulars;
and the master shall thereupon sign and give such continuous discharge certificate notwithstanding anything to the contrary contained in sub-section(1)."
Therefore, both under sections 119 and 120(2), it is the master of the vessel who has to give a certificate of discharge or a certificate of continuous discharge in lieu thereof at the time when a seaman is discharged from a vessel. In fact, even under section 99, the seaman has an option of possessing either a certificate of discharge or a continuous certificate of discharge. The Act, therefore, treats both these certificates at par. Under section 120(2) a certificate of continuous discharge can be issued only when a seaman is discharged from a ship. Similarly under section 119, a certificate of discharge is issued when a seaman leaves a ship. Under section 99, however, possession of either of these two certificates is a condition precedent for being allowed to work as a seaman. It is, therefore, difficult to appreciate how a person who desires to work as a seaman for the first time can do so when he is not in a position to obtain a certificate of discharge or continuous certificate of discharge under section 119 or section 120. This is a somewhat analomous situation.
8. The respondents, however, have framed in 1960, Merchant Shipping Continuous Discharge Certificate Rules, 1960 (hereinafter referred to as the CDC Rules,1960). These rules have been framed by the Ministry of Transport and Communication under section 457 of the Merchant Shipping Act, 1958 under which a general power is given to the Central Government to make rules generally to carry out the purposes of this Act. Under these Rules, Rule 3 provides that any person desiring to be employed as a seaman from a Port in India at which a Shipping Office has been established or a port where the business of shipping office is conducted, may apply to the Shipping Master of the port for the issue of a CDC. The "Shipping Master" of a port is defined under section 2(46) of the Merchant Shipping Act, 1958 with reference to section 11. Under section 11, the Central Government may establish a Shipping Office at every port in India in which it thinks it necessary so to do; and shall appoint thereto a Shipping Master. Section 12 deals with a Seamen's Employment Office which can be established by the Central Government at every port in India in which it thinks it necessary so to do. The Shipping Master of a Port is therefore distinct from the Master of a vessel. Rule 3 of the CDC Rules, 1960, requires a Shipping Master to issue a CDC as distinct from section 120(2) which requires the Master of a ship to issue a CDC. We are informed that there are shipping offices only in two ports; Bombay and Calcutta. The Shipping Masters only at the ports of Bombay and Calcutta are authorised to issue a C.D.C. under the CDC Rules, 1960.
9. Under Rule 3(2), every application for C.D.C. is required to contain a declaration that a C.D.C. has not previously been issued to the applicant. The applicant's photograph is also required to be affixed. No qualifications are prescribed under the C.D.C. Rules, 1960 for the issue of a C.D.C. by a Shipping Master. The Rules prescribe Form-I in which a C.D.C. is to be issued by the Shipping Master. In this Form, after particulars relating to the seaman are set out, there are, at the foot of it, 5 sub headings which are required to be filled in by the Shipping Master. These include, inter-alia, pre-sea training certificate number and place of issue, Seamen Employment Office registration number, port and date; Certificate of Efficiency as a Lifeboatman, Number. of Certificate of Competency in Cooking. Therefore, these details are required to be entered in the Form. There is nothing in the Rules which suggests that possession of all these certificates is pre-requisite for the issue of a C.D.C. Therefore, these details which are to be filled in are not preconditions for the issue of a C.D.C. If the seaman possesses any such certificates, they are to be entered in the Form.
10. Rule 14 provides that a seaman may apply to the Shipping Master of the port for the issue to him of a certificate of discharge applicable for any specified voyage instead of a C.D.C. A certificate of discharge has to be in Form No. IV. In the Form No.IV, apart from particulars relating to the seaman, there is no column where the certificate numbers of the kind which are required for a C.D.C. are to be entered, although a Discharge Certificate under Rule 14 is also in lieu of a C.D.C. This certificate of discharge under Rule 14 has to be issued by the Shipping Master of a port and not by the Master of the vessel as required under section 119. Under the C.D.C. Rules, therefore, no pre-conditions are set out for the issue of a C.D.C. Under these Rules any person desiring to be employed as a seaman can apply for a C.D.C.
11. The respondents however, seek to read these Rules with the Merchant Shipping (Seamen's Employment Office) Rules, 1986 which are issued under section 95 sub-section (3). Under section 95, the businesses to be conducted by the Seamen's Employment Offices are set out. This includes regulation and control over supply of various categories of seamen, recruitment of persons for employment as seamen and promotion of the seamen and changes of their categories. Under sub-section (3), the Central Government has the power to make rules for the purpose of enabling Seamen's Employment Offices to exercise their powers effectively. Under the above rules which have been so framed, Rule 4 in Part III deals with registration of seamen. It provides as follows:
4. Registration of Seamen : With effect from a date to be notified in the Official Gazette by the Director General, no person shall be eligible for engagement as a seaman at any port where an Employment Office has been established under section 12 of the Act, unless he is duly registered at the Employment Office and is in possession of Registration Book issued under Rule 12 Rule 5 provides eligibility criteria for registration. It is as follows:
5. Eligibility for registration : No person shall be eligible for registration at the Employment Office, unless he
(i)(a) holds a valid Continuous Discharge Certificate issued from any port where an Employment Office has been established under section 12 of the Act; or
(b) holds a valid Continuous Discharge Certificate issued from any other port in India and has been customarily recruited from the port at which he seeks registration at the Employment Office;
(ii) holds a valid certificate of physical fitness issued by a Medical Authority;
(iii) is within such age limits as may be laid down from time to time by the Director General of Shipping after consultation with the Board;
(iv) fulfils such other conditions as may be laid down from time to time by the Director General after consultation with the Board;
Provided that in exceptional circumstances and for reasons to be recorded in writing, the Director General may permit the registration of any person not satisfying any of the above requirements."
Therefore, in view of these rules, possession of a valid Continuous Discharge Certificate is an essentioal requisite for registration at the Seamen's Employment Office. And without such registration a person is not eligible for engagement as a seaman at any port where an Employment Office has been established. Dealing with the eligibility criteria of registration which are set out in Rule 5, the respondents also rely upon certain age qualifications which have been prescribed by the Director General of Shipping by an order dated 24-2-1972 where, for various categories of seamen, age qualification and educational qualifications are set out. These are qualifications for entry into the seafaring profession. Therefore, all these provisions on which reliance has been placed by the respondents are provisions relating to the entry of a person for the first time in a seafaring profession as a seaman. These qualifications which are prescribed under the Merchant Shipping (Seamen's Employment Offices) Rules, 1986 do not take into account persons who have already been employed in the seafaring profession and are experienced seamen. This category seems to have been totally excluded from registration. Because this category has been excluded from registration, it is sought to be argued that this category of experienced seamen are also not entitled to a C.D.C. We will deal with this aspect a little later. But in our view, the argument of the respondents denying C.D.C. to the petitioners thus proceeds in a circle. The reason why C.D.C. are not being granted to the petitioners is, they do not fulfil the eligibility criteria prescribed for new entrants under the Merchant Shipping (Seamen's Employment Office) Rules, 1986. While without a CDC the petitioners do not become eligible for registration under the 1986 Rules.
12. Secondly there is no warrant for laying down the criteria prescribed for registration as the requisite criteria for the issue of a C.D.C. The C.D.C. Rules of 1960 do not so provide. As far as the issue of C.D.C. is concerned, under the 1960 Rules, there are no criteria laid down either relating to age, training, educational qualifications or any other qualifications. Therefore under the CDC Rules of 1960 the petitioners cannot be denied a CDC on the ground that they do not possess such qualifications.
13. After the present petitions were filed and interim orders obtained in some of them, the Government of India, Ministry of Service Transport, Directorate General of Shipping has issued certain instructions which are dated 31-7-1990 under which some guidance is sought to be given to the Shipping Master for the issue of a C.D.C. to the applicants. These guidelines provide that candidates after having been selected on the basis of an interview, are sent for training in the Ratings' training establishment. After completion of their training they are to be registered with the Seamen's Employment Offices and C.D.C. are issued to them. Once again these guidelines do not take care of those persons who have already worked as seamen and who require C.D.C. for seeking employment through the Seamen's Employment Offices. These guidelines appear to have been issued in connection with the writ petitions filed by ex-naval sailors. Neither the Act nor the C.D.C. Rules of 1960 exclude any category of seamen from its ambit. We do not see how under the guise of any guidelines, any category of seamen can be excluded from the issue of a C.D.C.
14. It was urged on behalf of the respondents that the petitioners have worked as seamen without any C.D.C. and they should not be considered now for the issue of a C.D.C. under the Merchant Shipping Act. However, section 102 prior to its amendment in 1984, permitted a seaman who was not a holder of a certificate of discharge or a Continuous Certificate of Discharge issued in India to sign an agreement and be engaged by the Master of a Ship registered at a port outside India. Moreover, at ports where there is no Shipping Master authorised to issue a C.D.C. it is difficult to see how a person who desires to seek employment as a seaman can obtain a C.D.C. under the 1960 Rules from a non-existant Shipping Master of that port. In fact, Rule 3 of the C.D.C. Ruled 1960 makes it very clear that a C.D.C. is required by a seaman only if he desires to be employed as a seaman from a port in India in which a Shipping Office has been established. Therefore, at ports where no Shipping Office has been established, a C.D.C. is not a necessary requirement for engagement as a seaman. In these circumstances, there are bound to be a number of seamen who have been engaged as seamen by Masters of various vessels who do not have a compulsory discharge certificate. They do, however, possess discharge certificates from the vessels on which they have worked thus showing that they have worked as seamen. Some of the petitioners who are before us have thus worked as seamen for over 10 years. We do not see why they have been denied the issue of C.D.Cs. under 1960 Rules especially when they possess the requisite experience of working as seamen and they also possess discharge certificate as also other certificates as set out hereinabove. Some petitioners also possess, in addition, training certificates relating to the particular trade in which they have worked.
15. The qualifications and experience of the petitioners has been doubted by the respondents on the ground that according to the respondents they do not possess valid discharge certificates. In this connection, the respondents rely upon section 118(1) which provides that when a seaman serving in a foreign-going ship is discharged in India, he has to be discharged in the presence of a Shipping Master. This obviously can be done only when a port at which he is discharged in India has a Shipping Master. This cannot be considered as an essential pre-requisite of a valid discharge, especially when under section 119 sub-section (1), it is the Master of the vessel who is required to sign and give to a seaman discharged from his ship in India a certificate of his discharge. Those of the petitioners who have such certificates of discharge, therefore, cannot be denied their experience or their qualifications only on the ground that their certificates of discharge are not counter signed by the Shipping Master. At the highest this is only an irregularity. It does not affect the validity of the certificate of discharge. In any event, in the case of any doubt, the respondents are always at liberty to verify the correctness of a certificate of discharge.
16. In these circumstances, in our view, the petitioners have been wrongly denied a C.D.C. by the respondents when they are entitled to the same under the CDC Rules of 1960. The view that we have taken is supported by a decision of a Division Bench of this Court in the case of Pratap Krishna Rew v. The Director General of Shipping, . The Division Bench, after considering these very rules and the provisions of the Merchant Shipping Act, 1958, held in the case of former Naval Seamen that they were entitled to C.D.Cs. under the C.D.C. Rules of 1960. The ratio of the judgment is grounded on the interpretation of the C.D.C. Rules of 1960 read with the provisions of the Merchant Shipping Act, 1958. We do not see any reason why this ratio should be confined only to former naval seamen as urged by the respondents and cannot apply to other seamen.
17. It is also submitted by the respondents as well as by the Intervener that new rules for the issue of a C.D.C. have been brought into effect from 19th March 1993. These replace the CDC Rules of 1960. According to the respondents, since the new rules have come into force, all the applications which are pending as well as those applications which have been disposed of as rejected will now have to be considered in the light of the Rule of 1993. These Rules, however, cannot have any retrospective operation. Nor can they affect applications made under the CDC Rules of 1960. The 1993 Rules cannot be looked upon merely as procedural Rules. They prescribe for the first time eligibility criteria such as age limit, educational qualifications, medical fitness and so on. They have brought about substantive changes in the eligibility for a CDC. These Rules, therefore, can be applied only to those who apply for a C.D.C. after the new Rules have come into force. Old applications under the old Rules which have been pending for some time will have to be disposed of under the Rules which were in force when these applications were made and ought to have been considered. We are not concerned with and hence are not examining the 1993 Rules.
18. The petitioners also claim the further relief of registration under the Merchant Shipping (Seamen's Employment Office) Rules, 1986. As we have set out earlier the eligibility criteria for registration which are set out in Rule 5 in Part-III, apart from prescribing possession of a valid C.D.C., require a valid certificate of physical fitness issued by a Medical Authority. The Merchant Shipping (Medical Examination) Rules of 1986 prescribe the manner in which physical fitness certificates are to be issued by a Medical Authority. These rules take care of both the categories of seamen those who are joining the profession for the first time and those who are already in the profession. The next criterion which is prescribed relates to age limit. This enables prescribing of age beyond which new entrants cannot be accepted. This criterion can have no application to candidates such as the petitioners who are already in the profession. The qualifications as to training in the prescribed institutions also do not take into account the category of seamen such as the petitioners who have either training from other institutions in the past or have obtained training on the ships on which they worked or have experience of working as seamen in a specified category of trade for a number of years. No doubt, there is a further proviso to Rule 5 to the effect that in exceptional circumstances and for reasons to be recorded in writing, the Director General may permit the registration of any person not satisfying any of the above requirements. But in view of the fact that under the Rules above, the entire category of seamen who have worked as seamen and who possess discharge certificate from vessels on which they have worked, showing their satisfactory work on such vessels, are excluded without any reasonable cause; it is necessary that proper guidelines are laid down for registration of such seamen also. Excluding such seamen from registration is wholly arbitrary and unreasonable and violates the rights of such seamen under Article 14. The respondents are, therefore, directed to frame suitable guidelines for registration of seamen such as the petitioners, who apply for registration on the basis of their training/experience on vessels on which they have worked in the past as seamen, their discharge certificates issued by the Master of the vessel concerned and the period over which they have obtained such an experience. Such guidelines are directed to be framed as expeditiously as possible and preferably within 12 weeks, as a large number of such persons are without jobs.
19. The rule is, therefore, made absolute as set out hereinafter. The respondents are directed to issue such of the petitioners who have applied for C.D.C. prior to 19-3-1993, a C.D.C. after verifying the particulars submitted by them in their application and if they are found fit for the issue of such a C.D.C. in the light of our judgment hereinabove.
20. After guidelines and/or amendments are framed as stated by us hereinabove regarding registration of such of the petitioners who have been granted a C.D.C. and who fulfill the criteria laid down in the guidelines to be issued, registration to issue immediately thereafter. We make it clear that the respondents will be at liberty to examine each individual case on the basis of documents submitted by each of the petitioners on merit and to decide on the grant of registration as well as the grant of a C.D.C. accordingly. As far as the grant of C.D.Cs. are concerned, such examination and verification to be done by the respondents within 12 weeks and C.D.C. to be issued within that time. To those petitioners who have been granted C.D.Cs., registration to be granted if they fall within the guidelines which are to be prescribed as aforesaid within 4 weeks of the guidelines coming into force. No order as to costs.
21. Respondents apply for stay of the operation of this order. Since respondents have, in any event, been given 12 weeks' time for processing applications for C.D.C., no useful purpose will be served by granting any stay. In the case of any difficulty, liberty to both the sides to apply.