1 (Cr.WP 1414/2008) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.1414 OF 2008 Captain Govind Narayan Sharma, ) Indian, Aged – 75 years, Resident ) of Dehradun, residing at Senior ) Citizen Home Complex Society, ) Rajpur Road, Dehradun and inter- ) alia at C/o. Captain S.K. Mishra, ) Seamen’s Club, 18, R. Kamani ) Marg, Ballard Estate, Mumbai ) – 400 038. ) ....Petitioner. V/s 1. Threewin Maritime (India) ) Private Limited, a Company incor- ) -porated under the Companies Act,) 1956, having its Office at 306, ) Vasant Vihar, Commercial ) Complex Dr.G.C. Road, Chembur, ) Mumbai – 400 074. ) ) 2. Galleon Shipping Private Limited) a Company incorporated under the) Companies Act 1956, having its ) Office at Rex Chambers, Walchand ) Hirachand Marg, Mumbai-400001 ) ) 3. The Union of India ) (Being a formal party, Notice to ) be served upon the Central ) Government Pleader, Aayakar ) Bhavan, Mumbai. ) .... Respondents. Mr. C.R.S. Mishra i/b Pt. C.R.S. Mishra & Co for the Petitioner. Mr. A.S. Shitole, APP for the State. Mr. Jaiprakash Sawant for Respondent Nos. 1 and 2. 2 (Cr.WP 1414/2008) CORAM: V. M. KANADE, J. DATE : 27th July, 2010 ORAL JUDGMENT: 1. By this Petition filed under Article 227 of the Constitution of India, Petitioner is challenging the order passed by the Additional Sessions Judge and also the order passed by the Metropolitan Magistrate’s 33rd Court, Ballard Estate, Mumbai. 2. Brief facts are as under:- 3. Petitioner is a Marine Captain by profession. Respondent No.1 is a Shipping Company. Respondent No.2 is the agent of Respondent No.1. The Petitioner was appointed by Respondent No.1 – Shipping Company as a Master on board the vessel m.v. “Maratha Cruiser” for a period of three months as per the contract and it was stated in the contract that the said period could be extended beyond three months. Petitioner, however, was relieved prematurely from the vessel on 14/02/2002 without assigning any reasons. Respondents had also agreed to settle all the dues of the Petitioner on his return to Mumbai. Petitioner, therefore filed complaint before the learned Additional Chief Metropolitan Magistrate’s 33rd Court under 3 (Cr.WP 1414/2008) sections 143, 145 and 148 of the Merchant Shipping Act, 1958 for recovery of wages/compensation due to premature termination of contract vide C.C. No.360/N/2003 and claimed wages for his premature discharge by the Respondents alongwith interest @ 18% p.a. 4. The learned Magistrate by his judgment and order dated 18/10/2004 rejected the application and held that the provisions of section 143 were not applicable to the master of a ship and, therefore, the application was not tenable. Against the said judgment and order, the Petitioner preferred criminal revision application in the Court of Sessions for Greater Bombay. The Sessions Court, however, dismissed the revision application on the ground that the said revision application is not maintainable in the Court of Sessions under section 397 of the Criminal Procedure Code and that the remedy of the Petitioner was to prefer Writ Petition in the High Court. Being aggrieved by the aforesaid two orders, the Petitioner has preferred this Writ Petition under Article 227 of the Constitution of India. 5. The learned Counsel appearing on behalf of the Petitioner submitted that though it is true that the term “master of a ship” is not included in the definition of the term “seaman” as defined under the said Act, in view of provisions of section 148(1) of the said Act, the master of a ship has the same rights, liens and remedies for the recovery of his wages as a seaman has under this Act and, 4 (Cr.WP 1414/2008) therefore, the application of the Petitioner for recovery of wages under section 145 was maintainable before the Magistrate. In support of the said submission, he relied upon the judgment of the Apex Court in M/s Steel Industrials Kerala Ltd. vs. Capt. S.M. Rebello and others.1 6. The learned Counsel appearing on behalf of the Respondent Nos. 1 and 2, on the other hand, firstly submitted that in the letter of appointment of the Petitioner it was specifically mentioned that services of the Petitioner could be terminated without assigning any reasons. Secondly, it is submitted that even under section 143 of the Merchant Shipping Act, 1958, the shipping master alone could fix the compensation. It is submitted that the Petitioner did not approach the shipping master. It is further submitted that the application under section 145 of the said Act was not maintainable since section 145 is applicable only to wages and the petitioner herein has claimed compensation. Thirdly, it is submitted that the ratio of the judgment in M/s Steel Industrials Kerala Ltd.(supra) is not applicable to the facts of the present case. The learned Counsel invited my attention to para 3 of the said judgment and submitted that, in that case, Respondent therein was appointed for a period of one year and there was not term in the contract of service permitting the ship owner to terminate the services of a seaman or master of the ship without assigning any reasons. The learned Counsel then 1 AIR 1985 SC 760 5 (Cr.WP 1414/2008) invited my attention to paragraphs 14, 16 and 17 of the said judgment in support of his submissions. It is submitted that the Petitioner was above the age of 65 years and he had not produced his age dispensation certificate which is required in such cases. 7. The submission made by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 that the provisions of section 143 are not applicable or that for seeking compensation the applicant has to move the application before the shipping master cannot be accepted. Sub-section (2) of section 143 clearly provides that so far as compensation is concerned, it has to be recovered as wages. The procedure for recovery of wages is laid down under section 145 of the said Act. Section 148 of the said Act lays down that even a master of the ship has the same remedies as that of a seaman. So far as the submission of the learned Counsel appearing on behalf of Respondent No.1 and 2 that owner of a ship has right to terminate the services without assigning any reasons is concerned, it cannot be accepted firstly because no period is mentioned in the said clause and the said clause is left blank meaning thereby that no period has been prescribed within which services could be terminated without assigning any reasons and, secondly, the order of appointment itself was restricted for a period of three months. So far as the submission regarding age dispensation is concerned, the Respondent Nos. 1 and 2 did not verify the age of the Petitioner at the 6 (Cr.WP 1414/2008) time of issuance of letter of appointment and that the order of termination also does not state that he was being discharged on account of overage. The submission that the application for compensation has to be filed before the shipping master also is without any substance in view of the clear provisions of section 145 read with sub-section (2) of section 143 and also in view of the ratio of the judgment of the Apex Court as laid down in paragraphs 16 and 17 of its judgment in M/s Steel Industrials Kerala Ltd.(supra). Hence, it is not possible to accept the submissions made by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2. 8. There is much substance in the submissions made by the learned Counsel appearing on behalf of the Petitioner. For the purpose of deciding whether the master of a ship can file an application under section 145 of the said Act for recovery of wages before the Magistrate, it will be necessary to take into consideration the relevant provisions of the said Act. In section 2(42) the term “seaman” is defined as under:- 2(42) “seaman” means 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;” A plain reading of the said definition reveals that a master, 7 (Cr.WP 1414/2008) pilot or apprentice is excluded from the definition of the word “seaman”. Section 145 of the Act deals with the power of the Magistrate to decide summary proceedings filed by a seaman or apprentice for wages. The said provision reads as under:- “145. Summary proceedings for wages.-(1) A seaman or apprentice or a person duly authorized on his behalf may, as soon as any wages due to him become payable, apply to [any Judicial Magistrate of the first class or any Metropolitan Magistrate, as the case may be] exercising jurisdiction in or near the place at which his service has terminated or at which he has been discharged or at which any person upon whom the claim is made is or resides, and [such Magistrate] shall try the case in a summary way and the order made by [such Magistrate] in the matter shall be final. (2) An application under sub-section (1) may also be made by any officer authorized by the Central Government in this behalf by general or special order.” It is true that on reading of section 2(42) and section 145 of the said Act, it would appear that only a seaman could file an application for recovery of wages before the Magistrate. However, so far as the master of a ship is concerned, his remedy for recovery of wages is laid down in section 148 of the said Act. Sub-clause (1) of section 148 lays down that 8 (Cr.WP 1414/2008) the master of a ship shall have the same rights, liens and remedies for recovery of his wages as a seaman has under this Act. It is, therefore, necessary to take into consideration the provisions of section 148 of the said Act which read as under:- 148. Remedies of master for wages, disbursements etc.-(1) The master of a ship shall, so far as the case permits, have the same rights, liens and remedies for the recovery of his wages as a seaman has under this Act or by any law or custom. (2) The master of a ship and every person lawfully acting as a master of a ship by reason of the decease or incapacity 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 recovery of his wages. (3) If any proceeding in any court touching the claim of a master in respect of such wages, disbursements or liabilities any set-off is claimed or any counter-claim is made, the Court may enter into, and adjudicate upon, all questions and settle all accounts then arising or outstanding and unsettled between the parties to the proceeding and may direct payment of any balance found to be due.” Perusal of the said provision, therefore, clearly reveals that by virtue of the said provision, the master of a ship also has the same rights and remedies for recovery of his wages as a seaman has under this Act. It is an admitted position that under section 145 of the said Act, a seaman has a right to 9 (Cr.WP 1414/2008) apply for recovery of wages before the Magistrate and, therefore, as a natural corollary, the master of a ship also would have the same remedy of applying for recovery of wages by filing an application before the Magistrate. In view of the aforesaid clear provisions, therefore, in my view, the learned Magistrate clearly erred in coming to the conclusion that the said application for recovery of wages filed by the master was not maintainable. Provisions of section 143 of the said Act, therefore, will have to be read alongwith section 148 of the said Act. Section 143 speaks about compensation payable to seamen for premature discharge. In view of the provisions of section 148 of the said Act since the master of a ship has same rights as that of seaman, provisions of section 143, therefore, would be applicable to the master of a ship and he would be entitled to seek compensation for premature discharge. Section 143 of the said Act reads as under:- “143. Compensation to seamen for premature discharge.- If a seaman having signed an agreement is discharged, otherwise than in accordance with the terms thereof, without fault on his part justifying the discharge and without his consent, he shall be entitled to receive from the master, owner or agent, in addition to any wages he may have earned, as due compensation for the damage caused to him by the discharge, such sum as the shipping master may fix having regard to the circumstances relating to the discharge: 10 (Cr.WP 1414/2008) Provided that the compensation so payable shall not exceed- (a) in the case of a seaman who has been discharged before the commencement of a voyage, one month’s wages; and (b) in the case of a seaman who has been discharged after the commencement of a voyage, three months’ wages. (2) Any compensation payable under this section may be recovered as wages.” In this case, therefore, in view of proviso (b) to sub-section (1) of section 143, the master of a ship would be entitled to claim three months’ wages for being discharged after the commencement of a voyage. In this context, it would be relevant to take into consideration the judgment of the Apex Court in M/s Steel Industrials Kerala Ltd (supra). In that case also the Respondent therein was appointed as the master of a ship and his services were terminated. He was appointed for a period of one year from 22nd October, 1980 and after the ship commenced its journey, on 11th December, 1980 the said ship touched the harbour and thereafter proceeded to Beypore, Calicut where the respondent received a message from the owner of the ship that the ship has been sold as scrap to the appellant-company and, as a result, the services of the respondent were terminated on 20/12/1980. Respondent therein filed an application before the Magistrate under section 145 of the said Act for payment of necessary wages. The learned Magistrate came to the 11 (Cr.WP 1414/2008) conclusion that the respondent was entitled to claim three months’ wages. Respondent being aggrieved by the said order preferred a Writ Petition in the High Court. The High Court allowed the Writ Petition and held that he was entitled to get wages for one year. Being aggrieved by the order passed by the High Court, the appellant preferred an appeal in the Apex Court against the said order. The Apex Court after analyzing the provisions of the said Act came to the conclusion that the Respondent therein was not entitled to claim entire wages for a period of one year. The Apex Court observed that under section 143 read with section 148, the master was entitled to three months’ wages in case of discharge or termination in the same manner as a seaman is entitled to three months’ wages. However, the contention raised by the master of a ship that he was entitled to the wages for entire period of one year was not accepted by the Apex Court by holding that there was no provision in the Act under which discharge certificate could be given to the master of a ship or, even otherwise, he could not claim rights and privileges of a seaman. The Apex Court made the following observations in paragraphs 16 and 17 of its judgment:- “16. 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 12 (Cr.WP 1414/2008) 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.” “17. Great reliance was, however, placed by the Counsel for the respondent on sub- sections (1) and (2) of S. 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-s. (2) may be extracted thus: “(2) The master of a ship and every person lawfully acting as a master of a ship by reason of the decease or incapacity 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 recovery of his wages.” 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.” In my view, therefore, ratio of the said judgment would 13 (Cr.WP 1414/2008) squarely apply to the facts of the present case. 9. In the present case also, the Petitioner was appointed as the master of a ship of the vessel m.v. “Maratha Cruiser” on 09/01/2002. He was, however, asked to sign off and leave the vessel on 14/02/2002 without assigning any reasons and, he was informed that the new master would be arriving on the vessel and that he was being taken off from the vessel. According to the Petitioner, no letter of termination was issued by Respondent Nos. 1 and 2 and no reasons were assigned for terminating his services prematurely and abruptly. Petitioner, therefore, telephoned the agent at Mumbai and demanded his wages and dues immediately as per the Merchant Shipping Act before singing off. He was, however, informed by the Superintendent of the Respondents that he should report to Respondent No.2’s office at Mumbai for further instructions. Petitioner was also informed that his services were required on board another vessel of the Respondents. In view of this, the Petitioner came to Mumbai. However, when he reached Mumbai, he was given wages on the basis of 37 days only and a sum of Rs 70,613/- was paid to him. According to the Petitioner, he is entitled to get an amount of Rs 2,25,000/- @ 75,000/- per month plus travelling cost of Rs 1,550/- from Jafrabad to Mumbai for premature discharge in terms of the Merchant Shipping Act. Petitioner, therefore, gave notice to Respondents dated 16/03/2002 calling upon them to make the said payment of all his dues. Since the said amount was 14 (Cr.WP 1414/2008) not paid, he filed an application before the learned Magistrate under section 145 of the said Act. In the present case, it is an admitted position that the Petitioner was prematurely discharged after he had put in 37 days of service. No reasons were assigned by Respondent Nos. 1 and 2. He was asked to come to Mumbai on the pretext that he would be required on board another vessel of the Respondents. However, when he came to Mumbai, he was paid 37 days wages. It is an admitted position, therefore, that he was discharged prematurely before completion of his contract and no reasons were assigned for the premature termination of his services. 10. In view of the aforesaid facts, therefore, Petitioner is entitled to three months’ salary in view of the provisions of section 143(2) read with section 148 of the said Act. The ratio of the judgment of the Apex Court in M/s Steel Industries Kerala Ltd. (supra) as laid down in paragraphs 16 and 17, therefore, is squarely applicable to the facts of the present case. The learned Magistrate, therefore, has clearly committed an error of law in dismissing the complaint of the Petitioner, which is apparent on the face of the record. 11. Writ Petition is, therefore, allowed. The judgment and order passed by the Sessions Court in Revision Application No.395 of 2008 dated 27/05/2008 and the order passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Estate, Mumbai in C.C. 360/N//2003 dated 18/10/2004 is 15 (Cr.WP 1414/2008) quashed and set aside. Application filed by the Petitioner is allowed. Respondents are directed to pay to the Petitioner a sum of Rs 2,26,550/- with interest @ 9% p.a. from the date of filing of the application. 12. Rule is made absolute in the aforesaid terms. 13. At this stage Mr. Sawant, the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 seeks stay of this judgment. Request for stay is declined. (V.M. KANADE, J.) 16 (Cr.WP 1414/2008)