Ibrahim & Ors Vs. State of West
Bengal & ANR [1967] INSC 264 (21 November 1967)
21/11/1967 HIDAYATULLAH, M.
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 731 1968 SCR (2) 306
ACT:
Merchant Shipping Act, 1958, ss. 191(1)(a)
and (b), 194(b) and (e), and 436--Seamen entering into agreement with shipping
company to navigate its ship for specified period--dispute arising while ship
in dock on a voyage as to amount of bazar money payable to seamen--on
nonpayment of amount claimed seamen leaving ship which could not therefore
sail--whether seamen liable for desertion.--Reasonable cause for leaving
ship--when relevant.
HEADNOTE:
The ten appellants were ratings who had
entered into an agreement with a shipping company in Cochin to navigate one of
its ships between December 11, 1963 and June 10, 1964.
During this period, after they had performed
some voyages and while the ship was berthed in Calcutta port, a dispute arose
between the appellants and the Company as to the payment of bazar money
(victualling charges) which the ratings were allowed according to a custom
obtaining in merchant shipping. The appellants claimed Re. 1 per day while the
Company normally paid only 0.62 P. per day. The dispute was referred to the
Shipping Master, Calcutta, whereupon meetings took place between
representatives of the Company and the appellants before the Shipping Master
and an agreement was reached according to which the Company promised to pay the
amount claimed. However, it was not clear whether this payment was to be made
before the commencement of the next voyage or on the termination of the
agreement. As the appellants were in fact not paid before commencement of the
voyage, upon the instigation of certain labour leaders they left the vessel in
a body and, as a result, the ship could not leave port at the appointed time of
sailing. The appellants were thereafter prosecuted for deserting the ship and
were convicted under s. 191 and (b) and s. 194(b) and (e) read with s. 436 of
the Merchant
Shipping Act. 1958. Their revision applications to the High Court were
summarily rejected.
In the appeal to this Court by special leave,
it was contended on behalf of the appellants (a) that there was no desertion on
their part, and (b) that even if they be held to have left the ship, they were
protected by the fact that there was reasonable cause for absenting themselves
at the time. of the sailing of the ship.
HELD: dismissing the appeal:
(i) The gist of desertion is the existence of
animus not to return to the ship or, in other words, to, go against the
agreements under which the employment of seamen for sea voyages generally take
place. The way the appellants had acted clearly showed that they were using the
weapon of strike with a view to force the issue ,with their employers and were
not intending to, return to the vessel unless their demands were acceded to
immediately. It was therefore legitimate to infer that they were breaking the
agreement with the company which was to keep the ship in voyage up to June 10,
1964-. and this was rendered impossible by all the appellants absenting
themselves. Their action therefore amounted to desertion.
[309 B, F--G] 307 Moore v. Canadian Pacific
Steamship Co., [1945] 1 All E.R. 128; The West-morland, (1841) 1 Wm. Rob 216;
referred to.
(ii), Section 191(1) is in two parts. The
first part deals with only desertion and therefore, if desertion was proved,
the penalty which the law provides under the Act was duly incurred. There is no
excuse against desertion became reasonable cause which is indicated in the same
section is included in cl. (b) and not in el. (a). In the present case there
was not that sufficient cause even for the purpose of el. (b) of s. 191(1). The
dispute was already before the Shipping Master, meetings had taken place and
minutes had been recorded. the log book of the shipping Company and other
records would clearly show the amount of money due to the appellants. The
settlement of the claim could well have waited till the completion of the
voyage and there was machinery in law for the enforcement of a demand. [309 H;
310 D--F] The law has chosen to regard the
duties of seamen as of paramount importance and has therefore, in addition to
the ordinary liabilities which arise under the general law, added a penalty of
imprisonment for absence from duty without reasonable cause and has also
provided for forfeiture of wages and the effects left on board. This indicates
that the policy of the law is that the crew must perform their duties under
such agreements as they execute with the shipping company on pain of being
found guilty and punished if they cannot make out that they had sufficient and
reasonable cause for what may otherwise be regarded as dereliction of duty.
[310 C--D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 19 of 1965.
Appeal by special leave from the judgment and
order dated E January 11, 1965 of the Calcutta High Court in Criminal Revision
No. 46 of 1965.
A.K. Sen and S.C. Majumdar, for the
appellants.
P.K. Chakravarti, G.S. Chatterjee for P.K.
Bose, for respondent No. 1.
K.B. Mehta and Indu Soni, for respondent No.
2.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal on behalf of ten appellants who were charged
for deserting their ship "S.S.
Nilgiri" on or G about April 22, 1964.
They were convicted under ss. 191(1)(a) and (b) and 194(b) and (e) read with s.
436 of the Merchant Shipping Act, 1958. Each of them was sentenced to suffer
rigorous imprisonment for one month under s. 191(1)(a) read with s. 436 of the
Act and also to forfeiture of 1/25 of the wages due. Under s. 194(e) they were
fined Rs. 20/- each but no separate sentences were passed against them under s.
191(1)(b) H and s. 194(b) of the Act. Their application for revision in the
High Court of Calcutta was summarily rejected. They now appeal by special leave
granted by this Court.
308 The facts of the case are that the
appellants had entered into a half-yearly agreement with the Eastern Steamship
Ltd. to navigate "S.S. Nilgiri" (Captain Hunter) between December 11,
1963 and June 10, 1964. The terms of their agreement are exhibited as Ex. 1 in
the case. It appears that they had performed some voyages on board "S.S. Nilgiri"
and on the day on which they are alleged to have deserted the ship, it had
berthed in the Calcutta Port.
According to the custom obtaining in merchant
shipping the ratings were allowed some bazar money (victualling charges).
The appellants claim that they should have,
been paid Re. 1/- per day (the Company was paying only 62 paise per day).
When the ship was in dock, the appellants put
in this demand on 21/22-4-1964, and the matter was referred to. the Shipping
Master Calcutta-. Meetings between the representatives of the Shipping Company
and the seamen took place before the Shipping Master. Minutes are available in
the case. Although oral testimony on behalf of the Company seems to give a lie
to some parts of the minutes, it is obvious that some sort of an agreement took
place under which the Company promised to pay these men the amount though it
is. not clear whether the amount was to be paid before the commencement of the
next voyage or on the termination of the agreement. Oral testimony on behalf of
the company inclines to the latter. But there is also the evidence that the
Company had undertaken to pay the seamen the additional amount of 38 paise per
person per day before the voyage was resumed. Be that as it may, it appears
that labour leaders at this stage began to take a hand in the dispute and
prompted the appellants to leave the vessel in a body. As a result the ship
could not leave the port because' the ratings had abandoned it and were not
available at the appointed time of sailing.
The Presidency Magistrate before whom the
appellants were tried for the offences already mentioned, held that their
conduct amounted to. desertion and that as they had no reasonable excuse for
leaving their ship, they were guilty of the offences charged. He accordingly
sentenced them as already stated. The High Court summarily rejected their
revision.
In this appeal it is contended (a) that there
was no desertion on the part of the appellants, and (b ) even if they be held
to have left the ship they were protected by the fact that there was reasonable
cause for absenting themselves at the time of the sailing of the ship.
The matter is governed by the Merchant
Shipping Act, 1958.It does not define what is meant by desertion; but in Moore
v.
Canadian Pacific Steamship Co.(1) Mr. Justice
Lynskey gave a (1) [1945] 1 All E.R. 128.
309 definition of 'desertion' from an early
case (The West- morland) as follows :-- "I think a deserter is a man who
leaves his ship and does not return to. it with no other purpose than to break
his agreement." The gist of desertion therefore is the existence of an
animus not to return to the ship or, in other words, to go against the
agreements under which the employment of seamen for sea voyages generally takes
place. In our opinion, this definition may be taken as a workable proposition
for application to the present case; There is nothing in this case to show that
after the seamen left the vessel, they intended to return to it. In fact they
went and later took their baggage, because under the law penalty includes
forfeiture of the effects left on board. The whole tenor of their conduct,
particularly the intervention of labour leaders is indicative of the fact that
they left the ship with no intention to return to it unless their demands were
met forthwith even though before the, Master the Company had stated that the
matter would be finally considered at the end of the voyage and the termination
of the agreement.
There are provisions in the Act under which
the seamen have got rights to enforce payment against their employers by taking
recourse to a Magistrate who in summary proceedings may decide what amount is
due to them and order its payment.
It is true that this action could only be
taken at Cochin where the registered office of the Company is situate, but in
any event the crew were required under the agreement to take back the vessel to
Cochin and could well have waited till they returned to the home port and then
made the demand before the appropriate authority. The way they have acted
clearly shows that they were using the weapon of strike with a view to force
the issue with their employers and were not intending to return to the vessel
unless their demands were acceded to immediately. In these circumstances, it is
legitimate to infer that they were breaking the agreement with the company
which was to keep the ship in voyage up to June 10, 1964 which could not take
place if all the crew remained on shore and the vessel could not weigh anchor
and leave the port without ratings. We are, therefore, satisfied that this was
a case of desertion and that it fell within the definition of the term as
stated by us Section 191 ( 1 ) is in two parts. The first part deals with only
desertion and therefore, if desertion was proved, the penalty which the law
provides under the Act was duly incurred. There is no excuse against desertion
because reasonable cause which is indicated in the same section is included in
el. (b) and not in el. (a).
(1) (1841) 1 Wm. Rob. 216.
310 But even if one were to view their
conduct as failing under (b) and not (a) as the courts have held, we see no
excuse on their part. The operation of shipping requires constant attention
from its crew and it is not possible for a shipping company or a vessel to ply
the ship if the crew at every port make demands and leave the ship in a body.
Such conduct would be subversive of all discipline on board. It is not so long
ago that seamen were put in stocks and chains and the leaders were made to walk
the plank or hung from the yard-arm Or at the least were flogged. The law has
made the life of seamen a little more liberal but has chosen to regard their
duties as of paramount importance and has therefore, in addition to the
ordinary liabilities which arise under the general law, added a penalty of
imprisonment for absence from duty without reasonable cause and has also
provided for forfeiture of wages and the effects left on board. This indicates
that the policy of the law is that the crew must perform their duties under
such agreements as they execute with the shipping company on pain of being
found guilty and punished if they cannot make out that they had sufficient and
reasonable cause for what may otherwise be regarded as dereliction of duty. In
our opinion in the present case there was not that sufficient cause even for
purpose of el. (b) of s. 191 (1). After all the dispute was before the Shipping
Master, meetings had taken place and minutes had been recorded. The log book of
the Shipping Company would show the different voyages and their duration and
the muster roll would show the attendance of the crew.
It was a matter of mere arithmetical
calculation between Re. 1/- per day and 62 paise per day to find out how much
money was due to each of the ratings. This would not amount to more than Rs.
30/- or Rs. 40/- per person and this claim might well have waited till the
completion of the voyage, because the record of the entire proceedings was kept
in the Shipping Master's office and there was machinery in law for the
enforcement of a demand. In our opinion, the ratings were overweighed by their
leaders and were induced to leave the ship in a body in a manner which can only
be described as desertion and therefore their offence was fully established. We
see no reason therefore to interfere in this appeal which fails and will be
dismissed.
R.K.P.S. Appeal dismissed.
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