ORDER T. Chandrasekhara Menon, J. Preliminary; 1. Crl.R.P. No. 435 of 1981 arises out of the order passed by the Chief Judicial Magistrate Court of Kozhikode on three petitions presented by the Master of Ship - 'M. V. Anastasis' - a merchant ship registered, in Panama ant at the relevant time anchored at the Beypore Harbour, Calicut. The petitions hat been filed under S.145 of the Merchant Shipping Act, 1958 (the Act for short) read with section: 148 of the Act. The first respondent in the said petition was the representative of the owners of the ship, Mr. E. Zouppas, the second respondent the Steel Industrials Kerala Limited and the third respondent M/s. Maritime Service (P) Ltd.; Cochin, am agent for the vessel for the purpose of transacting business with Port authorities and customs officials. Facts: 2. M. V. Anastasis is a Panamian ship owned by M/s. E. Peso Maritime Co. and managed by M/s. Aster Maritime Inc; Piraeus World Link Shipping (Pvt.) Ltd. is their representative in this country. 3. By communication dated 22-10-1980, a photostat copy of which is marked as Ext. P1 in the proceedings, Captain S. M. Rebello, the petitioner herein, and in the count below was appointed as Master of Vessel. This had specified that the appointment was for a period of one year but he should willing to accept a transfer to any vessel owned or operated by the company. In pursuance of this the petitioner took change of the vessel at Tuticorin on 24-10-1980. As per the appointment terms the petitioner was entitled to a monthly consolidated salary of 1800 U.S. Dollars and also for three days' leave wages per month. The period of service commenced from 23-10-1980. 4. As Master, the petitioner took the Vessel from Tuticorin to Calcutta via, Colombo. After unloading cargo there under instructions from the owners, the ship proceeded to Cochin. At Cochin the petitioner received a message from the owners to proceed to Beypore, Calicut for scrap. On 11-12-1980 the petitioner took the vessel to Beypore anchorage at 11 p.m. The nest day Mr. Zouppas the representative of the owners, the first respondent came to the ship and obtained the ship's documents and connected papers from the Master. At Cochin the petitioner received a message from the owners to proceed to Beypore, Calicut for scrap. On 11-12-1980 the petitioner took the vessel to Beypore anchorage at 11 p.m. The nest day Mr. Zouppas the representative of the owners, the first respondent came to the ship and obtained the ship's documents and connected papers from the Master. The petitioner was then informed that the vessel was about to be sold for scrap to M/s. Steel Industrials Kerala Limited (SILK) through the Metal Scrap Trading Corporation, Calcutta (MSTC). SILK is a Government of Kerala undertaking engaged in acquiring old ships for breaking and selling the steel scrap and MSTC is a Central Government Company acting as analysing agents for import and allotment of old ships. On the request of the first respondent, the petitioner moved the Vessel to Beypore Inner Harbour and beached it there on 18-12-1980. By notice dated 20-12-1980 photostat copy of which is Ext. P2 the first respondent informed the petitioner of the termination of his employment. The petitioner received the notice and expressed his willingness to accept such termination by an endorsement made on the back of the notice (copy of the endorsement being Ext. P2(a) on certain conditions like payment of further two months' wages, receipt of expenses for going back to Bombay etc. 5. On 21-12-1980 when the notice of termination was served on the petitioner, he had completed one month and 28 days of active service in the ship. The Wages and other dues to the petitioner as per the contract of employment had not been given to him. Petitioner's contentions: 6. According to the petitioner, there was no valid termination of the petitioner's services. The first respondent did not care to settle the accounts of the petitioner even though requested by him to do so. It is in these circumstances that the petitioner was forced to approach the Magistrate's Court under S.145 of the Act read with S.148 of the same. 7. In C. M. P. No. 1273 of 1980 the petitioner has stated that for the period during which he was in active service in the ship he was entitled to a sum of U.S. Dollars 3828 as wages. In addition to this he was entitled to get U.S. Dollars 1700 as short hand wages and cargo lashing. 7. In C. M. P. No. 1273 of 1980 the petitioner has stated that for the period during which he was in active service in the ship he was entitled to a sum of U.S. Dollars 3828 as wages. In addition to this he was entitled to get U.S. Dollars 1700 as short hand wages and cargo lashing. Since the contract of employment was for 'One year, the petitioner was also entitled to get from the owners, one year's full wages. The wages for the period of contract remaining after 21-12-1980 comes to U.S. Dollars 18,120. The total amount thus due to the petitioner will come to U.S. Dollars 21,948. After deducting from this 134 dollars which was paid to the petitioner as advance, the balance amount due to the petitioner, according to him as per the figures 'given' in the first petition will be U.S. Dollars 21,814 for which the petitioner makes a prayer for payment. 8. In regard to the first petition, the learned Magistrate states that notice of the petition was given to all the respondents and was also served on the counsel for Panama, under S.446 of the Act. First respondent's contentions therein: 9. The first respondent owns that he is the representative of the owners of the ship. He would however contend that the World Link Shipping Private Limited, Bombay is a necessary party to the proceedings since it is that Company which appointed the petitioner. He would further state that the petitioner's services has been terminated and he has settled all accounts with the World Link Private Limited. The petitioner is entitled only to the wages for the period he was working in the vessel. The other amounts claimed by him do not fall within the scope of S.145 of the Act. Nor is the first respondent in a position to say whether the petitioner had been paid wages for the period before the date of termination of his employment. Plea of SILK, the second respondent. 10. They purchased M. V. Anastasis through a Central Government undertaking called Metal Scrap Trading Corporation for the purpose of dismantling the same and obtaining scrap for the purpose of running their industries. This purchase was made with the knowledge of the petitioner. SILK also contends that since the petitioner was appointed by World Link Shipping Private Limited, the petitioner's claim has to be made against that company. This purchase was made with the knowledge of the petitioner. SILK also contends that since the petitioner was appointed by World Link Shipping Private Limited, the petitioner's claim has to be made against that company. The petitioner cannot seek relief against the second respondent in any case. They are now in possession of the vessel. As per the terms of the petitioner's appointment he is entitled to get his employment in some other vessel of his employers. The Magistrate Court can enquire and decide what is the actual amount of wages due and payable to the petitioner. The petitioner cannot agitate for the amounts which the petitioner would have actually got if the term of his appointment was j not terminated permanently. Third respondent's Contentions: 11. Third respondent is an agent for the vessel only for the purpose of transacting business with the Port authorities and customs officials and they are not liable for wages and other expenses of the Master of the Vessel. A plea is also raised that the Act is applicable only to ships registered in India and since the vessel here is a foreign vessel, the petition is not maintainable. Crl. M. P. No. 1007 of 1981 12. Here the petitioner reiterates the allegations in C. M. P. No. 1273 of 1980 and claims wages from 23-10-1980 to 22-10-81. He claims several amounts under different heads which according to him he can claim as wages. The total amount claimed in this C. M. P. comes to U.S. Dollars 36,230.40 and Rs. 102297.19. The respondents resists this application on the same lines they have raised to the earlier petition. They also contend that a second petition during the; pendency of the first is not maintainable. Crl. M. P. No. 1390 of 1981 13. Here, in addition to the wages alleged to be due to him from 23-10-1980 to 22-10-1981 petitioner claims under other heads like his boardings and lodging expenses at Calicut, medical bills, conveyance expenses, legal advice expenses etc. The total amount claimed in this petition comes to Rs. 1,89,505.26 and U.S. Dollars 37,375.85. Respondents 2 and 3 filed objections on the same lines. The learned Magistrate in his order points out that though the first respondent did not file any separate objections he adopted the contentions in the objections of the second respondent. Magistrate's decision: 14. The total amount claimed in this petition comes to Rs. 1,89,505.26 and U.S. Dollars 37,375.85. Respondents 2 and 3 filed objections on the same lines. The learned Magistrate in his order points out that though the first respondent did not file any separate objections he adopted the contentions in the objections of the second respondent. Magistrate's decision: 14. Before I refer to the decision rendered by the learned Magistrate. I might here refer to the fact that before him none of the parties wanted to adduce oral evidence. Parties apparently were satisfied by filing documents in support of their claims. 15. The learned Magistrate was of opinion that in the face of the definition of the word 'seaman' in the Act, the petitioner cannot contend that the specimen copy of the Articles of Agreement which is to be entered into by the seamen who are employed in the ship is applicable to him. A Master is included in the term seamen only in relations to S.178 to 183 of the Act. Moreover, the specimen copy applies only to seamen in ships registered in India and to those in a foreign registered ship. Petitioner can look back only to Exhibit P1 appointment. The first respondent has terminated his employment. The order was served on the petitioner. The remedy for the petitioner will be to initiate proceedings to set aside the termination order and claiming damages for breach of contract. The petitioner cannot contend that Ext. P2 is not binding on him and he continues to be the Master, unless the order of termination admittedly made by a person who has got authority to pass the same is set aside. The learned Magistrate speaks of his inability to go against the decision of the Munsiff in an interlocutory order passed in a suit for injunction filed by the second respondent against the petitioner. The Munsiff has there held that there was a termination of the petitioner's services as Master and that he has been finally discharged. The learned Munsiff also found that the petitioner is not a serving seaman. 16. From this the learned Magistrate comes to the conclusion that the services of the petitioner as a Master was terminated on 21-12-1980 and the petitioner is entitled to wages only till that date. Wages till that date as claimed by him will be U.S. Dollars 3694. The learned Munsiff also found that the petitioner is not a serving seaman. 16. From this the learned Magistrate comes to the conclusion that the services of the petitioner as a Master was terminated on 21-12-1980 and the petitioner is entitled to wages only till that date. Wages till that date as claimed by him will be U.S. Dollars 3694. It is admitted that he received U.S. Dollars 134 as advance. The balance amount due to him will be U.S. Dollars 3694. He cannot claim any amount as wages after the date of termination. 17. The learned Magistrate also, refers to the non service of notice in the second and third petitions on the consular officer of the country in which the ship is registered under S.446 of the Act. Those petitions are thus not maintainable. 18. The Magistrate points out that it is not seriously disputed that the amount claimed as wages due till 21-12-1980 had not been paid to the petitioner. Petitioner is also entitled to the amount claimed towards short hand wages and cargo casting. These would come within the term 'wages' as defined in S.3(57) of the Act. Therefore, according to the learned Magistrate, the petitioner is entitled to an amount of U.S. 3694 towards wages and U.S. Dollars 1700 towards other 'emoluments which became payable to the petitioner when his services were terminated on 21-12-1980. 19. While exonerating the third respondent from any liability as he was only an agent for the owners for dealing with the Port authorities in Cochin, the Magistrate finds that respondents 1 and 2 as original owner and purchaser of the vessel have responsibility for payment of the amount found due to the petitioner. 20. I think it will be useful now to extract paras 19 and 20 from the learned Magistrate's order: -- "The owners of the ship had not settled the accounts of the Master when his services were terminated. Because of that, the Master had to resort to legal proceedings for getting wages due to him. The respondents could at least have deposited the amount admitted by them as wages due to the petitioner. They have not made even such a gesture. It will only be just and proper to compensate him for the loss sustained. Because of that, the Master had to resort to legal proceedings for getting wages due to him. The respondents could at least have deposited the amount admitted by them as wages due to the petitioner. They have not made even such a gesture. It will only be just and proper to compensate him for the loss sustained. Para 264 of Halsbury's Laws of England Volume 35 says, that in any legal proceedings by the Master of a ship for the recovery of any sum due to him on account of wages where the payment of the sums due were delayed otherwise then owing to his default or any other cause not being the wrongful act or default of the person liable to make the payment, the court may order that person to pay damages. I find that interest at the rate of 12% from 21-12-1980 on the amount due to the petitioner has to be paid by the first and second respondents till the date when the amount is deposited in court as damages. They will also pay Rs. 500/- as cost of this litigation to the petitioner. The first and second respondents will jointly and individually be responsible for the payment of the amounts found as due to the petitioner. They will deposit a total amount of U.S. Dollars 3694 + 1700 (5394) with interest at the rate of 12% from 21-12-1980 or its equivalent in Indian currency and the cost awarded, before this Court within 15 days from the date of this order - In default, steps will be taken to realise the amount for payment to the petitioner." 21. Before proceeding with the case, I will have to point out that if only the two Governmental Organisations - the Metal Scrap Trading Corporation which no doubt is not a party here and the SILK the second respondent had acted justly, this litigation could have been easily avoided. The petitioner had acted very correctly and with due responsibility as Master of the Ship when he got the termination order. That the termination order which was issued by the owners was a total termination of his services, there cannot be any doubt. The petitioner had acted very correctly and with due responsibility as Master of the Ship when he got the termination order. That the termination order which was issued by the owners was a total termination of his services, there cannot be any doubt. What is stated therein is: -- "This is officially to advise you that the owners of M/s. Anastasis have requested me to announce to you that as from today your services are not any longer required and your employment hereby is terminated. Further more they are requesting you to pass to me all your documents and ship's papers as well as your accounts to be checked by the accounting department for settlement." It might be noted that in his order of appointment he had been told that his contract is for a period of one year commencing from the date of his departure from Bombay. He was also told that he should be willing to accept a transfer to any vessel owned/chartered/operated by them (M/s Aster Maritime Inc Piraeus - the owners of the ship) Ext. P2, the order of termination, does no offer him any alternative appointment. His services were terminated and he was asked to go to Bombay. This is clearly violative of the terms of the contract and is illegal. Though it is not easy to get a job of a Master immediately, the petitioner said that he was willing to accept this subject to the following conditions in the endorsement which he made on the communication receive by him. The conditions were: -- (i) Subject to his settlement of wages and other dues. (ii) Termination notice - to have two months' notice or wages in lieu thereof: (iii) Wages to be paid till his repatriation to home port (Bombay), (iv) All Boarding, lodging and repatriation expenses on owner's account. That this was a very fair acceptance, there cannot be any doubt at all. Governmental Organisations should not stand too much on technicalities to resist a fair demand. Knowing fully well that the Master and the seaman have got lien over the ship for amounts due to them, the companies concerned should have settled their accounts before the purchase was finally concluded. Governmental Organisations should not stand too much on technicalities to resist a fair demand. Knowing fully well that the Master and the seaman have got lien over the ship for amounts due to them, the companies concerned should have settled their accounts before the purchase was finally concluded. I think the court should express its displeasure at their attitude; after all they have got a duty to the seaman and officers of the ship, who without any previous notice were left in the lurch. The Master of the ship has joined services just two months back expecting that he can continue his services there. Statutory Provisions: 22. I may here refer to the statutory provisions. S.2(1) of the Act says that unless otherwise expressly provided, the provisions of the Act which apply to ships which are registered in India or which in terms of the Act are required to be so registered shall so apply wherever that ships may be. Under S.2(2) unless otherwise expressly provided, the provisions of the Act which apply to ships other than those referred to in sub-s.(1) shall so apply only while any such ship is within India, including the territorial waters thereon. S.3(22) defines master, 'Master' includes any person (except a pilot or harbour master) having command or charge of a ship. S.3(23) defines owner. Owner means (a) in relation to a ship, the person to whom the ship or a share in the ship belongs (b) in relation to a sailing vessel, the person to whom the sailing vessel belongs, S.3(43) defines seaman. 'Seaman' means every person" (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship under the Act, but in relation to S.178 to 183 (inclusive) includes a master. S.178 provides that seaman shall for the purposes of the provisions be deemed to be a serving seaman during any period commencing on the date of the agreement with the crew and ending thirty after the date on which the seaman is finally discharged from such agreement. S.179 to 189 are the other special provisions for the protection of seaman in respect of litigation. S.179 to 189 are the other special provisions for the protection of seaman in respect of litigation. S.71 says that where any person is beneficially interested otherwise than by way of mortgage in any ship share in a ship registered in the name of some other person as owner the person so interested shall, as well as the registered owner, be subject to all the pecuniary penalties imposed by this or any other Act on the owners of ships or shares therein so nevertheless that proceedings for the enforcement of any such penalties may be taken against both or either of the said parties with or without joining the other of them. S.145 deals with summary proceedings for wages. It states that a seaman or apprentice or a person duly authorised on his behalf may as soon as any wages due to him become payable, apply to any Magistrate 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 the magistrate shall try the case in a summary way and the order made by the magistrate in the matter shall be final. An application under sub-s.(1) may also be made by any officer authorised by the Central Government in this behalf by general or special order. S.146 provides that a proceeding for the recovery of wages due to a seaman or apprentice shall not be instituted by or on behalf of any seaman or apprentices in any civil court except where (a) the owner of the ship has been declared insolvent. S.147 provides for wages not recoverable outside India in certain cases. S.148 provides for remedies of master for wages, disbursements etc. S.148 reads as follows: -- "148(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. S.148 provides for remedies of master for wages, disbursements etc. S.148 reads as follows: -- "148(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 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 the recovery of his wages. (3) If in 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 counterclaim 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. The master of a ship can therefore approach the Magistrate under S.145 is amply clear from this. The only question is what exactly is meant by wages. I might here before going into the relevant contentions in the matter just refer to the following passage in the Book on Shipping Law by Lord Chorley M.A., Q.C. and O.C. Giles LLM. (Sixth Edition - Page 69). In regard to the general principles apart from any statutory differentiation, there will not be much difference between the English and the Indian Law on the subject. It is stated in that book that as a rule a written contract will contain a clause providing for the termination of the contract. In the absence of such term the master is entitled to reasonable notice this is a question of fact, but it has been decided that, in the case of a chief officer twelve months may be regarded as reasonable and this decision is probably applicable also to masters. It goes without saying that if the master commits any act of misconduct he may be dismissed without notice, just as any other servant. It goes without saying that if the master commits any act of misconduct he may be dismissed without notice, just as any other servant. A single act of grave negligence will be sufficient but the onus of proof is on the employer, the ship owner. Therefore, in the case where for an improper or illegal termination of a contract, a master claiming damages in a civil court, 12 months' wages would be reasonable compensation. One has to take into account here the difficulty which a trained personnel, who can get a master's job would be put to in getting an alternative employment. Contract of Employment - General Principles and Exceptions: 23. It is certainly true as the learned counsel for the respondents contends that ordinarily when a contract of employment is terminated, the aggrieved party's remedy will not be for specific performance of the contract - for continuing the contract. It is a principle both in England and in India generally. But there are exceptions and lately in England these exceptions are coming to be more and more recognised and widened. Under S.14 of the Specific Relief Act, 1963, a contract for the non performance of which compensation in money is an adequate relief or a contract which runs into such minute or numerous details or which is so dependant on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms, are not Specifically enforceable. On the basis of the principles underlying this, it has been held as a general principle that a contract of service will neither be specifically enforced nor would a declaration issued that such a contract illegally put an end to would be continuing entitling the employee to continue to get the salary till the contract of service will neither be specifically enforced nor would a declaration issued that such a contract illegally put an end to would be continuing entitling the employee to continue to get the salary till the contract is properly terminated. But, then as Lord Denning M. R. observed in Hill v. C. A. Parsons and Co Ltd. (1973 (3) All. FR 1345) to apply this principles in all cases will be to take too narrow a view of the principles of law. But, then as Lord Denning M. R. observed in Hill v. C. A. Parsons and Co Ltd. (1973 (3) All. FR 1345) to apply this principles in all cases will be to take too narrow a view of the principles of law. It is a fundamental principle that whenever a man has a right, the law should give a remedy. The Latin maxim is ubi jus ibi remedium. This principle, the learned Judge observed, enables the court to step over the trip wires of previous cases and to bring the law into accord with the needs of today. In the same case, Sachs I. J has said when an injunction was sought to be issued for continuation of an employment illegally terminated. "Finally it was urged that any order made would run contrary to the policy or trend of previous practice. At the risk of reiterating views expressed in my judgments on other subject matters, it seems appropriate to repeat that in matters of practice and discretion it is essential for the courts to take account of any important change in that climate of general opinion which is so hard to define but yet so plainly manifests itself from generation to generation. In that behalf account must, interalia, be taken of the trend of the views of the legislature expressed on behalf of the community in its enactments and also of the trend of judicial decisions. Over the last two decades there has been a marked trend towards shielding the employee, where practicable, from undue hardships he may suffer at the hands of those who may have power over his livelihood - employers and trade unions. So far as this now progressed and such is the security granted to an employee under the Industrial Relations Act 1971 that some have suggested that he may now be said to acquire something akin to a property in his employment. So far as this now progressed and such is the security granted to an employee under the Industrial Relations Act 1971 that some have suggested that he may now be said to acquire something akin to a property in his employment. It surely is then for the courts to review and where appropriate to modify, if that becomes necessary, their rules of practice in relation to the exercise of a discretion such as we have to day to consider - so that its practice conforms to the realities of the day." (Emphasis supplied) If this be so in England, I see no reason why that should be different in our country where writ large in our Constitution is the provision regarding the rule against arbitrariness - Art.14 of the Constitution. We will look into the latest trends that have been developed in England regarding the contract of employment and relation between master and servant. 24. I would first refer to the decision in Francis v. Municipal Councillors of Kualalumpur 1962 (3) All ER (633). In that case Francis entered the employment of the Kualalumpur Municipal Council and he was taken on to their permanent staff. Under the relevant statutory provisions, the President had power to dismiss him and on October 1, 1957 he was dismissed. But there was irregularity and the dismissal was technically a wrongful dismissal. The appellant sought a declaration: that the termination of his employment was wrongful and that he had the right continue in the employment of the Municipal Council from October 1, 1957; alternatively he claimed damages for wrongful dismissal. Lord Morris speaking for the Privy Council said that when there has been a purported termination of a contract of service, a declaration, to the effect that the contract of service still subsisted would rarely be made. It is said that this is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court. In the particular case, the Privy Council was of opinion that there were no circumstances which would make it either just or proper to make such a declaration. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court. In the particular case, the Privy Council was of opinion that there were no circumstances which would make it either just or proper to make such a declaration. What I here emphasise is the stress on the fact that there was no circumstances which would make it just or proper to make such a declaration which makes it amply clear that in a proper case no doubt rarely the court could give such a declaration. 25. In an earlier case Vine v. National Dock Labour Board 1956 (3) All. FR 939 Ormerod, J. had in his discretion made such a declaration and the House of Lords were of opinion that the declaration had been rightly made. In that ease, however the circumstances were very special. The plaintiff was and had been for some thirty years a dock labourer. As a result of legislation designed to remove the objection of those so 'employed 'that theirs was a purely casual occupation, so that their right to work depended on the accident of its availability at the docks, all dock labourers were registered as employed by the National Dock Labour Board though they never in fact worked for the board. In the circumstances of that case, it was held to be right that the plaintiff - whose dismissal was shown to have been without proper authority - should have the benefit of a declaration that he was stall in the employment of the National Board, since unless he was, he would be disabled from carrying on at all his chosen trade of a dock labourer. 26. Before going into other English cases, I might just refer to the decision of the Supreme Court which refers to Francis' Case (Dr. Bool Chand v. Kurushetra University ( AIR 1968 SC 292 ). There after referring to Francis' Case the Supreme Court said that where the contract of service gives rise to the relation of master and servant governed by the terms of appointment, in the absence of special circumstances, the High Court would relegate a party complaining of wrongful termination of the contract to a suit for compensation, and would not exercise its jurisdiction to issue a high prerogative writ compelling the master does not wish to retain in service. There also I would underline the words "in the absence of special circumstances". 27. Now I would refer to a case which has given rise to some controversy - Hill v. C.A. Parsons and Co. Ltd. 1971 (3) All. FR 1345. Lord Denning M. R. in his judgment says that in the ordinary course of events when the master insisted on the servant's employment terminating on the day named in the notice despite the fact that the notice was unlawful, the relationship of master and servant thereupon came to an end for it was inconsistent with the confidential nature of the relationship that it should continue contrary to the will of one of the parties. The learned Judge concludes if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Therefore, according to Lord Denning M. R. the servant cannot claim specific performance of the contract of employment. Nor can he claim wages as such after the relationship has determined. He is left to his remedy in damages against the master for breach of the contract to continue the relationship for the contractual period. He gets damages for the time he would have served if he had been given proper notice, less of course, anything he has, or ought to have earned, in alternative employment. He does not get damages for the loss of expected benefits to which he had no contractual right. The learned Judge emphasises that this is in the ordinary course of things. The rule is not inflexible. It permits of exceptions. The court can in a proper case grant a declaration that the relationship still subsists and an injunction to stop the master treating it as at an end. Very interestingly, the learned Judge said "it may be said that by granting an injunction in such a case, the court is indirectly enforcing specifically a contract for personal service. Lord St. Leonards L. C. did something like it in Lumley v. Wagner (1843-60) All FR Rep. Very interestingly, the learned Judge said "it may be said that by granting an injunction in such a case, the court is indirectly enforcing specifically a contract for personal service. Lord St. Leonards L. C. did something like it in Lumley v. Wagner (1843-60) All FR Rep. 368 and I see no reason why we should not do it here." Similarly in the concurring judgement Lord Justice Sachs says : -- "It thus becomes relevant first to consider whether an order in the instant case would contravene the main grounds on which it would be refused in the vast majority of master and servant cases. Foremost amongst the grounds given in Fry on Specific Performance is that it is wrong to enforce a contract which needs personal confidence as between the parties when such confidence may not exist. Here such confidence does exist. Another ground is that common law damages normally provide an adequate remedy. Here they do not. It is well recognised that such cases can in practice arise as regards contracts of employment hence the new 'compensation' provisions in the Industrial Relations Act 1971, which undoubtedly envisage that account should be taken of factors such as the employees 'legitimate expectations for the future in his employment' (See the Report of the Donovan Commission). For an instance of recognition that such damages can be inadequate see the judgment of Jenkins LJ in the Vine Cace. A further ground is often the difficulty of reinstatement when the plaintiff's post has been filled. That difficulty does not exist here. Next one comes to the other previously mentioned facts introduced by the provisions of the Industrial Relations Act 1971 to which Brightman J was not referred - and which in this particular case produce such an unusual situation." 28. In Sanders and Others v. Ernest A Neale Ltd. (1974 (3) All. ER 327) Sir John Donaldson speaking for the National Industrial Relations Court goes back to the old view. But there also he emphasises that only in very exceptional cases could a wrongful dismissal leave the contract of employment in existence, eg. where the relationship of mutual confidence between the parties remained in tact. ER 327) Sir John Donaldson speaking for the National Industrial Relations Court goes back to the old view. But there also he emphasises that only in very exceptional cases could a wrongful dismissal leave the contract of employment in existence, eg. where the relationship of mutual confidence between the parties remained in tact. In that case on the ground that on the evidence no exceptional circumstances existed for all mutual confidence between the employers and employees had been destroyed by the continuance of the industrial action, it followed that the employees' contracts were held to have been terminated. So also the Court of Appeal in Cadbury v. Halliday 1975 (2) All. ER 233, held that since a contract of service involved mutual confidence between employer and employee, an order for specific performance of the contract would not normally be granted to either party. But Lord Denning M. R. states therein that am exception was created by that count in Hill's Case. In that case both the employers and the men had complete confidence in one another. Yet the employers - against their own wishes - gave the man notice of termination of his employment. The learned Judge himself says that he would not detract from anything that was said in that case, but the case on hand was very different. 29. A masterly survey of the law bad been made by Magarry V. C. in Thomas Marshall v. Guinle (1978 (3) All FR 193) Therein Managing Director of a Company was appointed for a term of ten years. There was a term in the contract of appointment prohibiting him from engaging in any other business. The Director after committing the breach of this term purported to resign before expiry of the ten year period. The Company did not accept toe resignation. The question was whether unilateral repudiation of contract by servant automatically determine contract. Magarry held that a contract of employment was not excepted from the general rule that a wrongful repudiation of a contract by one party which was not accepted by the other party did not terminate the contact. Accordingly the unilateral repudiation by a servant of a contract of employment did not automatically terminate the contract if the master did not accept the repudiation. 30. If that can be so, a wrongful repudiation by the master also not accepted by the servant will not repudiate the contract. Accordingly the unilateral repudiation by a servant of a contract of employment did not automatically terminate the contract if the master did not accept the repudiation. 30. If that can be so, a wrongful repudiation by the master also not accepted by the servant will not repudiate the contract. There has been a lengthy discussion of the case law on the matter in that case. The learned Judge says: "Second, it is difficult, if not impossible, to reconcile the doctrine of automatic determination with a number of authorities which, for the most part, do not appear to have been cited in any of the cases that I have mentioned. I need say no more about the Boston Case (1888 (39) Ch. D. 339), but I must refer to some others. Johanna Wagner contracted to sing for a period for Benjamin Lumley, and not to sing for anyone else. She then agreed to sing for someone else for a larger sum, but Lord St. Leonards LC granted an injunction to restrain her from doing so in Lumley v. Wagner (1852 (1) De GM & G 604). A company engaged a confidential clerk named Heuer for five years, the clerk agreeing to devote his whole time to the company's service and not during his engagement to engage as principal or servant in any business relating to goods of any description sold or made by the company. After some three years Heuer left and became employed by other manufacturers in the same line of business as the company. The Court of Appeal held that the company was entitled to an interlocutory injunction restraining Heuer from carrying on or being engaged in a business relating to goods of any description sold or made by the company relating to goods of description sold or made by the company: See William Robinson and Co. Ltd. v. Heuer (1898 (2) Ch 451). Betty Davis, the film actress, entered into a contract with a film company for a period, agreeing to render her exclusive services as an actress to that company, and not during that period to render any services for any other stage of motion picture production or business. During the period of the contract the actress refused to be bound by it, and contracted with a third person to appear as a film artist. During the period of the contract the actress refused to be bound by it, and contracted with a third person to appear as a film artist. At the trial of the action Branson J; granted an injunction which restrained the actress from rendering services in any motion picture of stage production for any one save the film company; see Warner Brothers Pictures Inc v. Nelson (1936 (3) All ER 160). Not surprisingly, counsel for the defendant was obliged to contend that the last two cases were both wrongly decided; and the same would seem to apply to the first of the three. To these three cases I may add one where the injunction was refused, namely Ehrman v. Bartholomew (1898 (1) Ch. 671). That was a case of a traveller for a firm of wine merchants who was employed for ten years under a contract to devote the whole of his time during usual business bourse to the business of the firm, and not to employ himself in any other business or transact any business with or for any other person. Within a year the traveller had left the firm and had entered the service of other wine merchants. On motion, Romer J refused the firm an injunction which would restrain the traveller from engaging or employing himself in any other business. This was on the ground that the restriction was too wide, since it extended to all businesses and not merely to special services as in Lumley v. Wagner. Apart from the citation of Lumley v. Wagner in Hill v. C. A. Parsons and Co. Ltd. none of these authorities seem to have been considered in any of the recent cases on automatic determination that I have mentioned. Yet if the doctrine of automatic determination is good law, all that Johanna Wagner, Heuer and Bette Davis had to do was to say that their contracts were at an end, and so they were free from the restrictions that they imposed while their employment continued .... Above all, I think the courts must be astute to prevent a wrong doer from profiting too greatly from his wrong. Above all, I think the courts must be astute to prevent a wrong doer from profiting too greatly from his wrong. If without just cause a servant who has contracted to serve for a term of years refuses to do so, it is easy to see that the court is powerless to make him do what he has contracted to do: neither by decreeing specific performance nor by granting an injunction can the court make the servant perform loyally what he is refusing to do, however wrongfully. If such an order were to be made, the ultimate sanction for disobedience is committal to prison; and this, far from forcing the servant to work for his master, will effectively stop him from doing this. But why should be court's inability to make a servant work for his employer mean that as soon as the servant refuses to do so the court is forthwith disabled from restraining him from committing any breach, however, flagrant, of his other obligations during the period of his contract? I would wholly reject the doctrine of automatic determination, whether in its wide form or in its narrowed version." (emphasised supplied) 31. In a recent case, the question was considered in depth by the court of Appeal - Gunton v. L. B. of Richmond upon Thames (1980 (3) All. FR 577). In his illuminating judgment Buckley LJ quotes the colourful phrase used by Asquith LJ in Howard v. Pickford Tool Co. (1951 (1) KB 417 at 421) "An unaccepted repudiation is a thing writ in water in and of no value to anybody: it confers no legal rights of any sort or kind." Buckley LJ proceeds: - "Why should the doctrine operate differently in the case of contracts of personal service from the way in which it operates in respect of other contracts? I for my part can discover no reason why it should do so in principle. It cannot be because the court will not decree specific performance of a contract of personal service, for there are innumerable kinds of contract which the court would not order to be specifically enforced to which the doctrine would undoubtedly apply. For similar reasons it cannot, in my opinion, be because a contract of personal service involves a relationship of mutual confidence, or because the obligations of a master and a servant are mutually dependent on cooperation between the parties. For similar reasons it cannot, in my opinion, be because a contract of personal service involves a relationship of mutual confidence, or because the obligations of a master and a servant are mutually dependent on cooperation between the parties. If one party to a contract of personal service were to repudiate it before the time for performance had arrived, there would be no breach of contract until the time for performance and no cause of action until then, unless the innocent party chose to create one by accepting the repudiation. I can only conclude that the doctrine does apply to contracts of personal services as it applies to the generality of contracts." 32. I have no doubt that this is a special case coming within the exceptions noted in the aforementioned cases. Ext. P1 the order of appointment specifically stated that the petitioner was to be in services for one year. No doubt, he could have been transferred to either ships. But, that has not been done. The termination as per Ext. P2 was a total termination of the petitioner's services in disregard of the contract. The petitioner has not accepted it is clear from Ext. P2(a). He was willing to accept it subject to certain conditions which on the face of it was very fair. The respondents were not willing to act in accordance with the conditions. What is the result of the illegal termination? He will not be able to get an immediate alternative employment and as per the authorities which I have already referred to, notice for a period of one year is considered to be proper notice of termination of the employment of a Master. Therefore, it would be perfectly just and proper to treat the contract in violation of which he had been illegally discharged which discharge entitles him to take recourse to proceedings under S.145 read with S.148 as subsisting. For the purpose of payment of his wages as provided in S.145 read with S.148 the employment should be deemed to continue for the whole 12 months fixed in Ext. P1. The amount he would be getting because of that would only be equal to the compensation which he would have recovered in the ordinary course, as damages for illegal termination. 33. P1. The amount he would be getting because of that would only be equal to the compensation which he would have recovered in the ordinary course, as damages for illegal termination. 33. I might note here a contention raised by the respondents that the petition is not maintainable, in view of the fact that the proceedings before the learned Magistrate is not under the provisions of the Code of Criminal Procedure. It is a special night given under the Merchant Shipping Act. According to the second respondent, the Magistrate acts as a persona designata. I am not inclined to agree with the contention raised in regard to that because under S.145 of the Act, a person aggrieved is allowed to apply to any magistrate 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 when once a statute says that a person can approach a particular court in the absence of statutory intention to the contrary, the ordinary proceedings of that court would govern the matter. Here, I do not think the Magistrate acts as a persona designata though he is exercising a special jurisdiction. The Supreme Court in Central Talkies Limited v. Dwaraka Prasad ( AIR 1961 SC 606 ) has said: - "A persona designata is 'a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.' (See Osborn's Conscise Law Dictionary, 4th Ednl p. 253). In the words of Schawabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao, ILR 47 Mad. 369; (AIR 1924 Mad 561) (FB), persona designata are persons selected to act in their private capacity and not in their capacity as judges." In any view of the matter, it might be noted that there cannot be any dispute that the Magistrate is a Tribunal and this court under Art.227 of the Constitution has got supervisory jurisdiction over that court. Even if no criminal revision will lie, the party could have approached this Court under Art.227. Nothing prevents this count from treating the criminal revision' petition as proceedings under Art.227. 34. Even if no criminal revision will lie, the party could have approached this Court under Art.227. Nothing prevents this count from treating the criminal revision' petition as proceedings under Art.227. 34. I might here also note that though the provisions of the Merchant Shipping Act says that the Magistrate shall try the case in a summary way, that does not mean that the legal question posed before me could not be raised in such jurisdiction. 35. Therefore, I hold that in respect of his wages till 22nd October, 1981 at the rate of U.S. Dollars 1800 per month, he would be entitled to get from respondents 1 and 2. With the result I order that besides the amount of U.S. Dollars 5.394 which the petitioner would be entitled to got from respondents as per the Magistrate's order he would be entitled to get the consolidated salary of U.S. Dollars 1800 per month upto the last date till which he would have been continued in employment if there has not been any illegal discharge. This, the respondents 1 and 2 would be liable to pay. As the petitioner has got a lien against the ship which, in view of certain directions given by this count, has now been dismantled, he can certainly look to the assets of both the first and second respondents for realisation of the amount, which they may pay to the petitioner from the first respondent. I declare that there would be such entitlement and the first respondent has got a primary liability. However, the second respondent shall not delay the payment of the amount to the petitioner. I would direct the second respondent to deposit the amount within one month from today. I would also hold that the petitioner would be entitled to interest at 12% from 22-10-1981 for the balance amount. Respondents 1 and 2 can deposit the amount in Indian currency. The petitioner shall also be entitled to the costs; of the proceedings besides that in the court below for which the Magistrate has given an order. I fix the cost of the proceedings as far as the petitioner is concerned at Rs. 1,000/-. He is entitled to get this amount from respondents 1 and 2. 36. If respondents 1 and 2 make default in depositing the amount within one month from today, steps can be taken by the petitioner for realisation of the amount. I fix the cost of the proceedings as far as the petitioner is concerned at Rs. 1,000/-. He is entitled to get this amount from respondents 1 and 2. 36. If respondents 1 and 2 make default in depositing the amount within one month from today, steps can be taken by the petitioner for realisation of the amount. The amount already deposited in this court by the second respondent as per the direction given in Crl. M. P. No. 1037 of 1981 in Crl. R. P. No. 435 of 1981 can be withdrawn by the petitioner. Crl. R.P. No. 16 of 1982 37. No further orders are called for in this in view of the fact that it really arises out of an interlocutory matter which had been disposed of by the decision in the main petition. There was no necessity for filing this Criminal Revision Petition is therefore disposed of accordingly. Carbon copy of the order would be given to the panties on payment of requisite charges. This judgment was dictated in court and immediately after the judgment was dictated, the petitioner submitted that he may be allowed to get the amount due to him in dollars as per the contract. I directed the case to be posted to this day for being spoken to. I do not think any change is required in the direction that I have given. No doubt, in calculating the amount due to the petitioner, that will be on the basis of the rate of exchange for the dollar when the payment was due current at the place where the payment is made. In the order I bad said that the amount already deposited in court by the second respondent can be withdrawn by the petitioner. Such amount when withdrawn will certainly be adjusted and credit given towards the amount due to the petitioner as per the order. No further clarification is required in the order as such. This case was posted for being spoken to today because a typing error was noted in page 25 (Para 34) of the order, The following sentence appears there - Lines 10, 11, 12, 13, 14 and 15. No further clarification is required in the order as such. This case was posted for being spoken to today because a typing error was noted in page 25 (Para 34) of the order, The following sentence appears there - Lines 10, 11, 12, 13, 14 and 15. 'As the petitioner has got a lien against the ship which, in view of certain directions given by this court, has now been dismantled, he can certainly look to the assesses of both the first and second respondents for realisation of the amount, which they may pay to the petitioner from the first respondent.' There is an obvious omission. That sentence has to be read as 'as the petitioner has got a lien against the ship which, in view of certain directions given by this count, has now been dismantled, he can certainly look to the assets of both the first and second respondents for realisation of the amount and in case the second respondent is compelled to pay it, the said respondent would be entitled for reimbursement from the first respondent in respect of that amount which it may have to pay to the petitioner.''