N Criminal Appeal No 240 of 1982 From the Judgment and Order dt
231982 of the High Court of Kerala at Ernakulam in Crl
RP No 435181
Criminal Appeal No 661 of 1982 From the Judgment and Order dt
1221982 of the High Court of Kerala at Ernakulam in OP No 683481
GL Sanghi G N Rao AS Nambiar after Singh for the Appellant in Crl
A No 240182  Respondents in Crl
A No 61182
Govind Mukhoty Mr V Maya Krishnan A N Bordiyar for the Respondents in Crl A
No 24082 and Appellants in Crl
A No 661182
D SM Rebelo In person
The Judgment of the Court was delivered by FAZAL ALI J
BY Our Order dated February 12 1985 we disposed of the above mentioned two criminal appeals dismissed criminal appeal No 661182 and allowed criminal appeal No 240 of 1982
We now proceed to give the reasons for our Order The facts of the case lie within a very narrow compass
The appeal by special leave has been filed by the appellant company contending that the respondent was not entitled in law to get full compensation for one year as was granted by the High Court for premature termination of his services
The detailed facts have been given by the High Court and the criminal court and it is not necessary to repeat the same
However in older to understand the delicate and difficult points raised by the respondent it may be necessary to give a short history of the circumstances in which the services of the respondent who was Master of the ship called MV Anastasis  were terminated it is common ground that the respondent was appointed on October 22 l980 for a period of one year
It is not disputed that on December 11 1980 the said ship touched the harbour and thereafter 1001 proceeded to Beypore Calicut where the respondent received a A message from the owner of the ship that the ship has been sold as scrap to the appellant company Steel Industrials Kerala Ltd Consequent upon the sale of the ship by an order dated 201280 the services of the respondent were terminated
On December 22 1980 i e two days later the respondent wrote a letter to the previous owner intimating that as directed he had handed over the ship to the appellant company A little later on 241280 the respondent moved the Magistrate under section 145 of the hereinafter referred to as the Act  for payment of necessary wages The
Magistrate after considering all the pros and cons of the matter felt that the respondent was entitled to get compensation at least equivalent to three months  pay
The respondent was however not satisfied with the order of the Magistrate because he claimed a much higher compensation as his services were terminated before completion of one year for which he was appointed
It is true that the salary of the respondent calculated at the rate of 1800 per month amounts to a substantial sum of money if he were to get compensation on a full salary basis for the entire period which actually he had not served We are however not concerned with the quantum of the compensation which he could get but the main point for consideration in this case is to whether or not his claim for compensation for the whole year could be entertained
In one of the letters which he had written to the owner of the ship he had himself admitted that he was entitled to two months  notice pay plus other emoluments
This would show that the contract between the parties as understood by them was that if the services of the respondent were terminated before completion of the term of one year he would be entitled to two months  notice
the Magistrate however took a more liberal view in the matter and held that the respondent was entitled to at least three months  notice and consequently to the emoluments calculated at the rate of 1800 per month and accordingly ordered payment of three months  pay This is in accordance with section 143 read with section 148 of the Act
It is manifest that under the contract the respondent was not appointed to any permanent post which was to last until his retirement but his appointment was really a term appointment for a fixed period
The main contention of the respondent before us was that as he did not get any discharge slip under the provisions of the Act he 1002 was entitled to full wages for the entire term of one year
In this connection he relied on certain provisions of the Act to which we shall refer here after
It appears that the respondent seems to have presumed that he was equal in status to that of a seaman and therefore unless a discharge certificate was given to him he was entitled to compensation for the entire period of the contract
A perusal of the relevant sections clearly reveals that the statute makes a well knit distinction between a seaman and a master of the ship
This now takes us to an analysis of the relevant provisions of the Act on which reliance has been placed by the respondent
To begin with sub section 22 of section 3 defines a Master  thus master includes any person except a pilot or harbour master having command or charge of a ship It is pertinent to note that the definition of Master  does not include a seaman and therefore the argument of the respondent that he should be equated with a seaman or treated as such cannot be accepted and is in fact without any substance
Sub section 42 of section 3 defines a seaman  as every person except a master pilot or apprentice employed or engaged as a member of the crew of a ship but for certain specific purposes under sections 178 to 183 it includes a master
An analysis of this sub section shows that a seaman cannot in the ordinary sense of the term be equated with a master 
Thus the second part of sub section 42 on which great reliance was placed by the respondent clearly carves out a separate area where for the purpose of this sub section a seaman might include a master
This limited area is to be found within the four corners of sections 178 to 183
This now brings us to a consideration of 9 178 which may be extracted thus 178
Meaning of serving seaman A seaman shall for the purposes of these provisions be deemed to be a serving seaman during any period commencing on the date of the agreement with the crew and ending thirty days after the date on which the seaman is finally discharged from such agreement 1003 There is nothing in this section to indicate that a seaman can m any sense of the term be equated with a master 
Even section 179 refers only to a serving seaman and not a Master
The relevant provisions of section 180 may be extracted thus 180
Notice lo be given in case of unrepresented seaman 1 If a collector has certified under sub section 2 of section 179 or if a court has reason to believe that a seaman who is a party to any proceeding before the court is unable to appear therein or is a serving seaman the Court shall suspend the proceeding and shall give notice thereof to the shipping master  This section merely provides that if a court has reason to believe that a seaman was a party to any proceeding and does not appear therein the court shall postpone the proceeding and give notice thereof to the shipping master
In this sub section the word master  has been used for the first time but the term has been used not to equate a seaman with a master but in quite a different content and subserve a different purpose The other sections also particularly section 183 merely provide that a serving seaman may refer the question to the shipping master whose certificate shall be conclusive evidence on the question whether a seaman was a serving seaman or not at any particular time or period
There is no clear provision from which it can be inferred either directly or by necessary intendment that a master is also a seaman for the purpose of getting compensation if his services were terminated
Section 89 defines the duties of shipping masters which may be extracted thus F It shall be duty of shipping masters a to superintend and facilitate the engagement and discharge of seamen in the manner provided in this Act b to provide means for securing the presence on  Board at the proper times of the seamen who are so engaged c to facilitate the making of apprenticeship to the sea service 1004  d to hear and decide disputes under section 132 between a master owner or agent of a ship and any of the crew of the ship e to perform such other duties relating to seaman apprentices and merchant ships as are for the time being committed to them by or under this Act
 The various sub sections of section 89 do not at all govern the terms and conditions of a master  but serve to carve out his duties at various levels or stages
Similarly section 101 refers only to the question that there should be an agreement with the crew in a prescribed form
There is no reference to the terms and conditions of a master in any of the sub sections
Section 103 is a general section which governs the terms and conditions of a seaman and there is no reference to a master of the ship
Reliance was then placed on section 118 the relevant portion of which may be extracted thus 118
Discharge before shipping master 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
 This sub section taken together with the other sub sections also governs the terms and conditions of a seaman and not those of a master of the ship
Section 119 merely provides that the master shall sign and give to seaman who is discharged a discharge certificate either on his discharge or on payment of his wages specifying the period of his service and the time and place of his discharge
This section also governs the terms and conditions of a seaman and has nothing to do with the terms and conditions of a master of a ship
Similarly section 120 relates to the consequences where a seaman is discharged
Some reliance was also placed on sub section 1 of s125 which may be extracted below 125
Master to deliver account of wages 1005 1 The master of every ship shall before paying off A or discharging a seaman under this Act deliver at the time and in the manner provided by this Act a full and true account in the form prescribed of the seaman s wages and of all deductions to be made therefrom on any account whatever  B This again defines the duties of a master in respect of a seaman who is discharged
Section 132 provides the procedure to be followed in case any dispute arises under the agreement with the crew between the master owner or agent of a ship and lays down that the same should be submitted for decision to the shipping master
Section 143 on which some reliance was placed by counsel for the respondent refers only to the circumstances under which a seaman could be discharged and the consequences ensuing therefrom
D It is apparent from the facts narrated and the analysis of the sections made by us that there is no provision in the Act which equates a seaman with a master of a ship in regard to the terms and conditions or emoluments or mode of discharge
In fact there is no provision under which a master of a ship can get a discharge certificate
But under section 143 read with section 148 a Master is entitled to three months  wages in case of discharge or termination in the same manner as a seaman is entitled to three months  wages
Great reliance was however placed by the counsel for the respondent on sub sections l and 2 section 148 which provide that a master of a ship would have the same rights liens and remedies for recovery of his wages as a seaman either under the four corners of the Act or by any law or custom Sub s2 may be extracted thus 2 The master of a ship and every person lawfully acting as master of a ship by reason of the decease or in G capacity from illness of the master of the ship shall so far as the case permits have the same rights liens and remedies for the recovery of disbursements or liabilities properly made or incurred by him on account of the ship as a master has for the recovery of his wages
 1006 Hence it is manifest that since there is no provision in the Act under which a discharge certificate can be given to a master of a ship or even otherwise he cannot claim the rights and privileges of a seaman
This is obviously so because a master of a ship is an officer of a higher rank than that of a seaman and therefore his terms and conditions are bound to be different from that of a seaman
Reliance was also placed on section 199 of the Act which also deals not with the condition is of service of a master but of the forfeiture of wages of a seaman on apprentice on desertion from a ship
It was contended on behalf of the appellant that the contract between the master of a ship and the owner was in the nature of a contract of personal service and could not be specifically enforced
This view is supported by a decision of this Court in Dr SB Dutt vs University of Delhi1 where Sarkar J observed thus The High Court had held that it was not open to the arbitrator to grant Dr Dutt a declaration that h was still a professor in the University which no Court could or would give him
The High Court felt that this declaration amounted to specific enforcement of a contract of personal service which was forbidden by section 21 of the Specific Relief Act and therefore disclosed an error on the face of the award
We are in entire agreement with the view expressed by the High Court
There is no doubt that a contract of personal service cannot be specifically enforced Thus the appellant rightly pointed out that Annexure I appearing at page 64 of the paperbook in criminal appeal No 240 of 1982 clearly defines the terms of the appointment of Capt
Rebello master of the chip
It is true that s 148 provides that a master of a ship shall have the same rights and remedies as a seaman but that is only for a particular purpose
In these circumstances the High Court has misconstrued the various sections of the Act and by a strange process of reasoning arrived at the conclusion that the respondent was entitled to full 1  1007 compensation of one year s wages even if his services were terminated before expiry of his actual term but there does not appear to be any warrant for this view
Thus having regard to the various provisions of the act which we have analysed fully there can be no doubt that the High Court was not at all legally justified in holding that the respondent was entitled to wages for one year when in fact the ship having been treated as a scrap was no longer required and therefore the services of the respondent had to be dispensed with
The respondent himself understood the terms of his appointment mentioned at page 64 of the paperbook and has therefore rightly put his claim at two months  wages if he was discharged before completion of his term
As already indicated the Magistrate has awarded the compensation for three months  wages instead of two months  wages and we entirely agree with his view
The result is that we allow criminal appeal No 240 of 1982 set aside the judgment of the High Court and restore that of the Magistrate
Criminal appeal No 661 of l982 is dismissed but in the circumstances of the case there will be no order as to costs
The excess amount which has been withdrawn by the respondent shall be refunded to the appellant within four months from today either in instalments or in one lump sum failing which it will be open to the appellant to recover the same by way of restitution If the amount is not returned within four months then the recovery will be made with interest at the rate of 12 per annum S R CA No 24018  allowed
CA No 661182 dismissed


Summary:
The respondent was appointed on October 221980 for a period of one year as a master  of the ship called M V Anastasis in terms of the appointment order under which he was entitled to two months  wages if the was discharged before the completion of his term The said ship on December 11 1980 touched the harbour and thereafter proceeded to Beypore Calicut where the respondent was informed that the ship having been sold as a scrap to the appellant company Steel Industries Kerala he should handover the ship to the company
Consequent upon the sale of the ship by an order dated 201280 the services of the respondent were terminated
On December 22 1980 the respondent wrote a letter to the previous owner of the ship of having handed over the ship to the appellant company On 241280 the respondent moved the Magistrate under section 145 of the for payment of necessary wages
The Magistrate after considering all the pros and cons of the matter felt that the respondent was entitled to get compensation at least equivalent to three months  pay calculated at 1800 per month In appeal the High Court of Kerala increased the compensation equivalent to one year s wages
Allowing the company s  criminal appeal No 24082 and dismissing o the Master s appeal No 66182 the Court  HELD 1 The High Court has misconstrued the various sections of the and by a strange process of reasoning arrived at the conclusion that the respondent was entitled to full compensation of one years wages even if his services were terminated before the expiry of his actual term when in fact the ship having been treated as a 999 scrap was no longer required and therefore his services had to be dispensed A with and when the respondent himself rightly understood the terms of his appointment and put his claim at two months  wages only
1006H 1007 21 There is no provision in the which equates a seaman with a master of a ship in regard to the terms and conditions or emoluments or mode of discharge or under which a matter of a ship can get a discharge certificate But under section 143 read with section 148 a Master is entitled to three months  wages
1005C E 22 A perusal of the relevant section clearly reveals that the statute make a well knit distinction between a seaman  and a Master  of the ship
The definition of Master  in sub section22 of section 3 does not include a seaman
Sub section 42 of section 3 clearly shows that a seaman  cannot in the ordinary sense of the term be equated with a Master  but for certain specific purposes under sections 178 to 183 it includes a Master In sub section 1 OF section 180 the word Master has been used for the first time but even here the term has been used not to equate a seaman with a master but in quite a different context and subserve a different purpose
1002B D E F 1003D 23 There is no clear provision from which it can be inferred either directly or by necessary intendment that a master is also a seaman for the purpose of getting compensation if his services were terminated
The various sub sections of section 89 do not at all govern the terms and conditions of a master  but serve to carve out his duties at various levels or stages
Sections 101 103 108 119 120 121
132 143 and 199 of the Merchant Shipping Act all these govern the terms and conditions of a service of a seaman and the crew and have nothing to do with the master of A ship
It is true that sub sections I and 2 of section 148 provide that a master of a ship would have the same rights liens and remedies for recovery of his wages as a seaman either under the four corners of the Act or by any law or custom
But there is no provision in the Act under which a discharge certificate can be given to a master of a ship or even otherwise a master cannot claim the rights and privileges of a seaman because a master of a ship is an officer of a higher rank than that of a seaman
Therefore his terms and conditions are bound to be different from that of a seaman
1003E F 3
The contract between the master of a ship and the owner is in the nature of a contract of personal service and cannot be specifically enforced
1006D Dr section B DurJ vs University of Delhi l959l SCR 1236 referred to
The Court directed i that the excess amount which has been with
drawn by the respondent shall be refunded to the appellant within four months from 26
2 85 either in installment or in one lump sum failing which it will be open to the appellant to recover the same by was of restitution and ii that if the amount is not returned within four months then the recovery will be made with interest at the rate of 12 per annum 1007E F H 1000