: 1 : nms-2514-07-Judgment=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2514 OF 2007 IN SUIT NO. 527 OF 2005 Capt. Sukhdev Singh Lt. Cdr (r) Indian Navy, VPO Miani, PO-Poonia, Dist. Jallandhar, Punjab Pin – 144 702 Mailing Address C/o Mr. Varinder Singh, B-103, Bldg. No.-2, G.E. Link, Ram Mandir Road, Goregaon (W), Mumbai – 400 104. ..Plaintiff / Complainant v/s. The Great Eastern Shipping Co. Ltd. ..Defendant/Accu.no.1 Mr. K.M. Sheth – Chairman ..Defendant/Accu.no.2 Mr. Vijay K. Sheth – Managing Director ..Defendant/Accu.no.3 Mr. Ajit Mehrishi – Sr. Personnel Manager ..Defendant/Accu.no.4 Mr. Ravi D. Shariyan – Personnel Manager ..Defendant/Accu.no.5 Mr. N.N. Jain, Operations Manager ..Defendant/Accu.no.6 Mr. N.J. Thomas, Head HR Deptt. ..Defendant/Accu.no.7 Mr. S.D. Paldesai, Enquiry Officer ..Defendant/Accu.no.11 Mr. Onil Dhir, Head Operations Dept. ..Defendant/Accu.no.12 Address for defendants / accused nos. 1 to 7, 11 and 12. The Great Eastern Shipping Co. Ltd. Ocean House, 134/A Dr. Annie Besant Road, Worli, Mumbai – 400 018 and a Offshore Division at Energy House, 81 D.N. Road, Mumbai – 400 001. Alternative address for defendant / accused no.5 Varun Shipping Laxmi Building, Bollard Estate, Mumbai Alternative address for defendant / accused no.11 Food and Specialties India Pvt. Ltd. : 2 : nms-2514-07-Judgment=.doc K-4, Ashvamedh, Valbhat Road, Kama Industrial Estate, Opp. Jaipan, Goregaon East, Mumbai The Maritime Union of India .. Respondent no.8 Udyog Bhavan, 4th floor, W H Marg, Ballard Estate, Mumbai – 400 038 The Director General of Shipping Mumbai .. Respondent no.9 Jahaz Bhavan, W H Marg, Ballard Estate, Mumbai – 400 038 The Regional Provident Fund Commissioner .. Respondent no.10 341, Bhavishya Nidhi Bhavan, Bandra (E), Mumbai – 400 051. ......... Mr. Capt. Sukhdev Singh plaintiff in person. Mr. B.P. Colabawala and Ms.V. Shah i/b Hariani & Co. for defendant no.1. Mr. Nitin Thakkar, Sr. Counsel with Ms. V. Shah i/b Hariani & Co. for defendant no.3 Ms. J.M. Pandhi with Ms. Purnima Awasthi for Director General of Shipping. ......... CORAM : R.Y.GANOO, J. DATE : 15th DECEMBER, 2010. ORAL JUDGMENT : 1. The present suit came to be filed by the plaintiff on 24th December, 2004 against defendant no.1 for following reliefs. “(a) That this Hon’ble Court may be pleased to declare that the letter dated 20.09.2004, purporting to terminate the services of the defendant is arbitrary, without jurisdiction, : 3 : nms-2514-07-Judgment=.doc illegal and void. (b) That this Hon’ble Court may be pleased to declare that the plaintiff shall be deemed to be continuing in the services of the defendant and also entitled to consequential reliefs of disbursement of his pay and allowances as per the applicable rules of the defendant. 2. After the institution of the present suit, the plaintiff had taken out various chamber summonses. Some of them came to be allowed partly and some of them came to be granted fully. As of today, there are 3 defendants in the present suit namely (i) defendant no.1, The Great Shipping Company Ltd., (ii) The Maritime Union of India and (iii) The Great Off Shore Ltd. After the diverse amendments to the plaint, following prayer clause came to be added after prayer clauses (b). “(b-i) That this Hon’ble Court may be pleased to direct The Great Eastern Shipping Company Ltd. - Defendant no.1 to pay the legal dues and costs to the plaintiff – Or in alternative- (b-ii) the Hon’ble Court may be pleased to direct The Great Offshore Ltd.-Defendant no.3 to pay the legal dues and costs to the plaintiff. (b-iii) the Hon’ble Court may be pleased to direct the Great Eastern Shipping Co. Ltd.-Defendant no.1 to allow the plaintiff to carry out his normal duties and pay his full wages and allowances until he reaches the age of seventy years, as per Director General of Shipping’s M.S. Notice 03 of 2003. - Or in alternative- (b-iv) the Hon’ble Court may be pleased to direct the Great : 4 : nms-2514-07-Judgment=.doc Offshore Ltd. - Defendant no.3 to allow the plaintiff to carry out his normal duties and pay his full wages and allowances until he reaches the age of seventy years as per Director General of Shipping’s M.S. Notice 03 of 2003. (b-v) the Hon’ble Court may be pleased to direct the Maritime Union of India to insert into the in force “MUI – INSA Agreement of Employment for Indian Officers” the correct figures of Staff Wages i.e. Full Rank pay of the officers as agreed between Maritime Union of India and Indian National Ship – owners Association; saving clauses refers. (b-vi) the Hon’ble Court may be pleased to order disciplinary actions and exemplary costs against the defendants responsible for committing illegal and bad in law acts of misleading the Hon’ble Court. (c) that the defendants be ordered and decreed to pay to the plaintiff the sum of Rs.10,969,962.00 as per the particulars of claim at Exhibit “V” together with interest @18% per annum calculated on the monthly wages and allowances accrued month to month from June, 2003 till payment and / or realization; (d) that the defendants be ordered and decreed to pay the plaintiff the monthly “on staff” wages and allowances @ Rs. 3,27,982/- from the month of April, 2006 as long as the plaintiff continues to be in employment of the defendants; (e) that it be declared that the enquiry proceedings commenced against the plaintiff by the defendant pursuant to the charge sheet dated 30.3.2005 is bad in law, malafide, null and void and this Hon’ble Court be pleased to quash and : 5 : nms-2514-07-Judgment=.doc set aside the same; (f) that the defendants be ordered and decreed to pay to the plaintiff a sum of Rs.50 lakhs as per the particulars of claim at Exhibit “Z16” as and by way of damages for the mental tension and agony caused to him and his family members along with interest thereon @18% per annum from the date hereof till payment and / or realization; (g) that the defendant be ordered and directed to grant to the plaintiff all other consequential, monetary and other benefits as are applicable and payable to the plaintiff as per MUI-INSA Agreement governing his employment with the defendant as a Master; (h) that this Hon’ble Court may be pleased to restrain the defendant, their agents and servants from enforcing the letter dated 20.09.2004; (i) that pending the hearing and final disposal of the suit, the defendants be directed to deposit a sum of Rs. 10,969,962.00 being the arrears of wages and allowances due to the plaintiff from June, 2003 till 31.3.2006 together with interest thereon @18% per annum calculated on the month to month wages accrued from June, 2003 within such time as this Hon’ble Court may fix; (j) that pending the hearing and final disposal of the suit, plaintiff be permitted to withdraw a sum of Rs.80,17,218/- being the arrears of wages and allowances from June, 2003 till 31.3.2006 as computed by the Maritime Union of India out : 6 : nms-2514-07-Judgment=.doc of the amount of Rs.1,09,69,962/- when deposited by the defendant; (k) that pending the hearing and final disposal of the suit, the defendants be directed to pay to the plaintiff the monthly wages Rs.3,27,982/- per month from April, 2006 till further orders of this Hon’ble Court; (l) that pending the hearing and final disposal of the suit, the defendants be directed to deposit employer’s share of contribution to the Provident, Superannuation and Gratuity Funds Accounts of the plaintiff from the month of June, 2003 till 31.3.2006 and continue to make the such contributions from April, 2006 until and as long as the plaintiff continues to be in the employment of the defendants. (m) that pending the hearing and final disposal of the suit, further proceedings in the enquiry commenced against the plaintiff by the defendant pursuant to the charge sheet dated 30.3.2005 be stayed; (n) For ad-interim reliefs in terms of prayer clauses (i) to (m) above. 3. The plaintiff had taken out this motion for interim reliefs on 9th July, 2007. At the time when this motion was taken out, present defendant no.2 was not party to the suit but it was shown as respondent no.8. Similarly, present defendant no.3 was not joined as party to the suit. The present defendant no.3 is also not a party to the : 7 : nms-2514-07-Judgment=.doc notice of motion. The plaintiff claims to be a Captain in the Merchant Shipping. He had joined the services of defendant no.1 on 11th December, 1998 in the Off Shore Division of defendant no.1. According to plaintiff, he last signed off on 13th March, 2003 and he had communicated to his employer i.e. defendant no.1. that he would be ready to join by end of May, 2003. According to plaintiff he was not called for the work and made to suffer financially and mentally. His leave also got exhausted. According to the plaintiff he received a letter dated 20th September, 2004 from defendant no.1 wherein defendant no. 1 informed the plaintiff that defendant no.1 would no longer be in a position to offer the plaintiff posting as a master on board any of their vessels. According to plaintiff baseless allegations were made in the said letter. According to plaintiff by the said letter dated 20th September 2004, services of the plaintiff came to be terminated. The plaint goes to show that despite this letter dated 20th September, 2004, defendant no.1 called for comments of the plaintiff by letter dated 10th November, 2004. It is at this juncture, the plaintiff instituted this suit and asked for reliefs in terms of prayer clause (a) and (b). Thereafter the plaintiff filed Chamber summonses and had the plaint amended as it stands today with prayers which are mentioned above starting from prayer clause (b-i) onwards. It is the stand of the plaintiff that he continues to be in service of defendant no.1 as per MUI-INSA agreement and he is entitled to salary and allowances as he was willing to work. In : 8 : nms-2514-07-Judgment=.doc paragraph 20(c) to 20(f), plaintiff has contended that he is entitled to mandatory reliefs. It is mentioned in the plaint that chargesheet dated 30th March, 2005 was issued to the plaintiff levelling wild allegations against the plaintiff. By paragraphs 20(i) to 20(m) plaintiff wants to place on record as to how defendant no.1 erred in issuing the chargesheet and as to how the enquiry which was then in progress was mala-fide. It is the claim of the plaintiff that enquiry was illegal and that it caused harassment to the plaintiff. In paragraph 21(a), averments are set out to justify his demands in terms of money. At a later stage, by way of amendment made in green colour pursuant to the orders passed by the Court, present defendant no.3 the Great Off Shore Ltd. were joined as defendant no.3 and prayer clauses b(i) to b(vi) came to be added. 4. In substance, the plaintiff has narrated certain facts which took place upto a particular stage in the plaint i.e. prior to 5th June, 2006 and has sought diverse reliefs by way of substantive prayers. Similarly, the reliefs which are sought in the notice of motion are of diverse nature. 5. The defendant no.1 has filed the written statement dated 31st December, 2007. All the allegations levelled against defendant no.1 have been denied. Second written statement dated 5th March, 2009 has been filed by defendant no.1 after the plaint was amended. : 9 : nms-2514-07-Judgment=.doc 6. On reading the text of the notice of motion and the record pertaining to the notice of motion, following facts are noted. The Off Shore division of defendant on.1 got detached from defendant no.1 and got merged in the Great Off Shore Ltd. as per the orders passed in the Company Petition No.821 of 2005 read with Company Petition No.822 of 2005 dated 3rd December, 2006. The appointed dated was 1st April, 2005 for the aforesaid separation of the Off Shore Division from defendant no.1 and its merger with the Great Off Shore Ltd. The effective date was shown as 16th October, 2006. This date came to be provided by the plaintiff in the course of his arguments. On account of this, one can safely observe that w.e.f. 16th October 2006, the Off Shore Division of defendant no.1 got detached from defendant no.1 and got merged with defendant no.3 who is not a party to the present notice of motion. 7. It is also seen that chargesheet came to be filed against the plaintiff on 30th March, 2005 and enquiry was conducted against the plaintiff. The plaintiff has in the course of his arguments admitted that he participated in the enquiry. No doubt, it has been the stand of the plaintiff that the said enquiry was illegal and he participated in it without prejudice to his rights and contentions. I am not presently concerning myself with the legality of enquiry which was conducted by : 10 : nms-2514-07-Judgment=.doc defendant no.1 but the facts remains that defendant no.1 initiated departmental enquiry against the plaintiff and the plaintiff participated in the same. The record also shows that by letter dated 5th June 2006, the services of the plaintiff were terminated w.e.f. 15th March, 2004. This letter came to be served upon the plaintiff on 6th June, 2006. It is pertinent to note that this letter is served upon the plaintiff prior to taking out this notice of motion, as I have already indicated that the motion was taken out on 9th July, 2007. 8. In the course of arguments as also on the basis of record, it is clear that plaintiff was born on 1st March, 1947. He attained the age of 60 years on 1st March, 2007. There appears to be no dispute about these facts. 9. It is required to be mentioned that prior to this notice of motion, Notice of Motion No.289 of 2005 was taken out by the plaintiff. At the ad-interim stage of the said motion, defendant no.1 were directed to pay to plaintiff a sum of Rs.1 lakh. The plaintiff admits having received the said sum of Rs. 1 lakh. It is to be noted that at the request of the plaintiff. The said motion was allowed to be withdrawn. At the time of withdrawal of said motion, no order was passed by the Court asking the plaintiff to return the said amount of Rs.1 lakh to defendant no.1. As of today, defendant no.1 has not taken out any proceedings calling upon : 11 : nms-2514-07-Judgment=.doc the plaintiff to return to defendant no.1 the said sum of Rs.1 lakh. 10. It is noticed that affidavit-in-reply is filed to the present notice of motion by defendant no.1. The said affidavit-in-reply is affirmed by Mr. Ajit Mehrishi, the Assistant General Manager (Personnel) of defendant no.1, now known as the Great Off Shore Ltd. The said affidavit-in-reply is affirmed on 16th October, 2007. The plaintiff in the course of his arguments submitted that the affidavit-in-reply dated 16th October, 2007 affirmed by Mr. Ajit Mehrishi cannot be treated as an affidavit-in- reply on behalf of defendant no.1 as on 16th October, 2007 said Mr. Ajit Mehrishi was not in the employment of defendant no.1 as it has been the stand of defendant no.1 that the Off Shore Division of defendant no.1 got transferred to the Great Off Shore Ltd. i.e. present defendant no.3 and since Mr. Ajit Mehrishi was working in the Off Shore division his services also came to be transferred to defendant no.3. It is to be noted that in the affidavit-in-reply filed by Ajit Mehrishi, he has clearly stated at the first narration itself as follows. “I, Mr. Ajit Mehrishi, the Assistant General Manager, Fleet Personnel of the Defendant no.1 now known as The Great Offshore Ltd.” In so far as this affidavit-in-reply is concerned, I am inclined to go through this affidavit-in-reply as Mr. Ajit Mehrishi was working with defendant no.1 till 16th October, 2006. Mr. Mehrishi was in know of all : 12 : nms-2514-07-Judgment=.doc the facts concerning the plaintiff. It is in this circumstances, I am inclined to read the affidavit-in-reply dated 16th October, 2007. 11. It is to be noted that this notice of motion is directed against defendant no.1 i.e. the Great Eastern Shipping Company Ltd. It is also directed against Mr. K.M. Sheth, Vijay K. Sheth, Ajit Mehrishi, Ravi D. Shariyan, N.N. Jain, N.J. Thomas, Head HR Department,. In the cause title of the notice of motion these persons have been styled as defendants / accused no.2,3,4,5,6 and 7. The Maritime Union of India is shown as respondent no.8. The Director General of Shipping, Mumbai is shown as respondent no.9. The Regional Provident Fund Commissioner is shown as respondent no.10. Thereafter, Mr. S.D. Paldesai, Enquiry Officer is shown as defendant / accused no.11. Mr. Onil Dhir, Manager Head Operations dept is shown as defendant / accused no.12. It is required to be mentioned that all these persons / organization starting from K.N. Sheth upto the Regional Provident Fund Commissioner were not party to the suit when this motion was taken out. 12. In the course of arguments, the plaintiff had pointed out to the Court that on a praecipe dated 8th September, 2008 orders were passed directing the Court to issue writ of summons to the defendants. It was sought to be submitted that all these persons who are styled as : 13 : nms-2514-07-Judgment=.doc defendants / accused should also be treated as defendants in the main suit. This submission of the plaintiff is required to be rejected at this juncture itself. As as per the procedure, a writ of summons can be issued against a party who is shown as defendant in the cause title of the plaint. The order dated 8th September, 2008 passed by the Court cannot be made applicable to all these persons who have not been joined as defendants. With this aforesaid discussion, I now turn to prayers of the Notice of Motion. It will be convenient to reproduce the prayer clauses in the notice of motion. They are as follows. (a) That the Hon’ble Court be pleased to take disciplinary action against defendant / accused under 195 Cr.P.C. Act or any other act as the Hon’ble Court may deem fit, for annexing fabricated false documents and making concocted baseless submissions in their affidavit dated March, 2005 with malafide intentions to mislead the Hon’ble Court. (b) That the Hon’ble Court be pleased to issue show cause notice to defendants / accused for charge sheeting the complainant in retaliation to his proceeding to Court of law for justice against the defendants / accused no.1 company (charge no.12). (c) That the Hon’ble Court be pleased to declare the malafide enquiry conducted by the defendants / accused on false concocted and malafide charges, its findings and letter dated 05.06.2006 i.e. Informing the complainant about terminating of his services with retrospective effect 15.3.2004 as malafide, bad in law and the same to be set aside as null and void. (d) The Hon’ble Court be pleased to direct the defendant no.1 : 14 : nms-2514-07-Judgment=.doc company to pay the complainant a sum of Rs.1,74,42,337/- being arrears of staff wages and allowances due from 01.06.2003 to 30.06.2007 as per agreement of my employment and continue paying staff wages Rs.222,134.14 every month till final hearing and disposal of the suit. (e) That the Hon’ble Court be pleased to direct the defendant / accused company to reverse entry of Rs.100,000/- to the Provident Fund of the complainant and make operative his Superannuation, Gratuity and Provident Funds by subscribing the Employer’s part of money from June, 2003 to date to enable the complainant to get full benefits at the time of his superannuation. (f) That the Hon’ble Court be pleased to issue show cause notice to the defendants / accused for conducting a parallel proceedings on the same matter pending before the Hon’ble Court. (g) The Hon’ble Court be pleased to allow and admit Chamber Summons No.508/2006 dated 20.4.2006 and my submissions dated 30.04.2007 filed by the complainant before the Hon’ble Court as continuity of the plaint in this suit, since the defendant / accused no.1 company does not have any objections and be pleased to grant all prayers as applicable to date. (h) The Hon’ble Court be pleased to allow and admit the affidavit in support to this Notice of Motion as continuity of the plaint of the suit. (i) The Hon’ble Court be pleased to direct the defendant / accused no.2, defendant / accused no.3 to pay a sum of Rs. 25,00,000/- (each) and defendant / accused no.4, defendant / accused no.5, defendant / accused no.6, defendant / accused no. 7, defendant / accused no.11 and defendant / accused no.12 a sum of Rs.10,00,000/- each as compensation for damages suffered by the complainant and his family due to his : 15 : nms-2514-07-Judgment=.doc victimisation and mental agony. (j) That the Hon’ble Court be pleased to condone the delays and time bar caused for taking necessary legal actions in the Suit No.527/2005. (k) That the Hon’ble Court be pleased to permit the complainant to refer to and rely upon all my submissions / affidavit duly affirmed by me and delays and time bar on all legal issues in my Suit No.527/2005 be condoned. (l) The Hon’ble Court be pleased to direct the Director General of Shipping, Mumbai to take remedial measures and issue necessary orders to Indian Shipping Companies to avoid victimisation of the Seafarers in future. (m) The Hon’ble Court be pleased to direct the Regional Provident Fund Commissioner, Bandra (West) for initiating necessary disciplinary action against the defendant / accused no. 1 company for violating the relevant Government rules of Employees Provident Fund Act, (n) The Hon’ble Court be pleased to direct the Maritime Union of India to correct Annexure C of consolidated wages as per savings clauses of the agreement. (o) The Hon’ble Court be pleased to direct the Maritime Union of India to provide necessary legal and financial help to the Complainant being a member of the Union. (p) Cost. (q) The Hon’ble Court be pleased to direct the defendant / accused company No.1 to pay to the Indian Government an amount as the Hon’ble Court deems fit for the foreign exchange loss suffered by the Nation. (r) For any other relief and further action as this Hon’ble Court may deem fit in the nature and circumstances of the offences and violations. : 16 : nms-2514-07-Judgment=.doc 13. I now come to the various submissions advanced by the plaintiff in support of this notice of motion. At this juncture itself, it would be convenient to mention that by order passed on an earlier occasion, this motion was tagged along with the suit for the purposes of hearing however, at the request of the plaintiff, this motion was taken up for hearing as he had made a polite submission that in the absence of salary from defendant no.1 he is financially suffering and it is necessary to decide the question as regards receiving pay and allowances from defendant no.1. 14. The plaintiff took me through the entire record and submitted that plaintiff had worked with defendant no.1 upto March, 2003 and had rendered excellent service. In support of this contention, my attention was drawn to various certificates and other material by which remarks were secured by the plaintiff as regards his good conduct. The plaintiff pointed out to the Court that despite such good conduct, after the plaintiff signed off in March 2003, he was not called to report for the duty which resulted in loss in terms of money. He submitted that he suffered mental agony. The plaintiff submitted that the wild and baseless allegations were levelled against him and defendant no.1 issued a letter dated 20th September 2004 informing the plaintiff that defendant no.1 was unable to provide a job as a master on board. : 17 : nms-2514-07-Judgment=.doc According to the plaintiff, this letter should have