Research › Search › Judgment

Kerala High Court · body

2022 DIGILAW 945 (KER)

Forward Seamers Union Of India v. Union Of India

2022-11-07

V.G.ARUN

body2022
JUDGMENT : The issue highlighted in this writ petition is regarding the failure of respondents 3 and 4 to comply with the provisions of the Merchant Shipping Act, 1958('MSA' for short) and to act in terms of the agreement executed between Indian National Ship Owners' Association(INSA) and Maritime Union of India (MUI) regarding the wages and other service conditions of seamen. According to the petitioners, the issue ought to be considered by the Tribunal constituted under Section 150 of the Merchant Shipping Act. As the demand in this regard was not acted upon, the petitioners approached this court in W.P.(C) No.15193/2019. That writ petition was disposed of under Ext.P10 judgment with the following directions; “Having regard to the facts and circumstances of the case, especially the provision contained in Section 150 of the Merchant Shipping Act, I deem it appropriate to dispose of the writ petition directing the Central Government to take a decision on Ext.P9 representation, within three months from the date of receipt of a copy of this judgment. Ordered accordingly.” 2. In purported compliance of that direction, the first respondent considered the representation and issued Ext.P11 order, directing the Shipping Master, Chennai to take cognizance of the representation and pass an order under Section 132 of the Merchant Shipping Act within 60 days. Aggrieved, this writ petition is filed seeking the following reliefs; i). To issue a writ of certiorari or any other appropriate writ, order or direction to quash Exhibit P11 since the same is issued against the provisions of Merchant Shipping Act. ii). To issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to constitute a Tribunal under Sec.150 of Merchant Shipping Act, 1958 to consider the grievance highlighted in Ext.P9 relating to payments under allowances due to the seamen and officers employed in the vessels owned by the third respondent. iii). To issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd and 4th respondents to ensure that the seamen working on board vessels owned by 3rd respondent is paid wages and allowances as provided under the Merchant Shipping Act, 1958 iv). To declare that the 6th respondent does not have authority under Merchant Shipping Act to consider the grievances highlighted in Ext.P9 by 1st petitioner union.” 3. To declare that the 6th respondent does not have authority under Merchant Shipping Act to consider the grievances highlighted in Ext.P9 by 1st petitioner union.” 3. Adv.V.B.Harinarayanan, learned counsel for the petitioners, submitted that Section 132 of MSA has no application to the fact situation, as that provision is applicable only in the case of disputes between individual crew members and the ship owner. According to the counsel, the grievance highlighted in Ext.P9 can be considered only under Section 150 of the MSA. To buttress the contention, reference was made to the language used in Sections 132 and 150 and the definition of 'Seamen' and 'Shipping Master' at sections 3(42) and 3 (46) of the Merchant Shipping Act. 4. Replying to the contentions, Adv.Suvin R.Menon learned CGC submitted that, after the amendment to Section 132, individual disputes up to Rs.10,00,000/-can be decided under that provision. The Seamen or the Union of Seamen can raise a dispute under Section 150 only after exhausting their remedy under Section 132 of MSA. In order to resolve the disputes involved, it is essential to have a careful scrutiny of the following provisions of the Merchant Shipping Act. As per section 3(42), '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. Section 3(46) defines a 'Shipping Master' to mean; “shipping master” means the shipping master referred to in section 11; but in relation to any seaman for the purposes of sections 178 to 183 ((inclusive) means a shipping master appointed,- (i) for the port at which the seaman entered into, or is believed to have entered into, an agreement, or (ii) where the seaman did not enter into his agreement in India, for the port to which the seaman has returned, or is expected to return, on the completion of his latest voyage;” 5. The meaning of 'wages' in Section 3(57), includes emoluments. Section 100 requires the master of every Indian ship, except a home-trade ship of less than 200 tons gross, to enter into an agreement called agreement with the crew, in accordance with the Act, with every seamen who engages in, and carries to sea as one of his crew from, any port in India. The agreement mandated under Section 100 is to be executed in the prescribed form should contain the terms mentioned in section 101(2). The agreement mandated under Section 100 is to be executed in the prescribed form should contain the terms mentioned in section 101(2). One such term is the amount of wages which each seaman is to receive. The bone of contention being whether Section 132 or 150 would apply to the situation under consideration, the said provision, Sections 132 and 150 are extracted here under; “132. Decision of questions by shipping masters.—(1) Where under the agreement with the crew any dispute arises at any port in India between the master, owner or agent of a ship and any of the crew of the ship, it shall be submitted to the shipping master,— 111[(a) where the amount in dispute is up to five lakh rupees or such higher amount not exceeding ten lakh rupees, as the Central Government may, by notification, specify, at the instance of either party to the dispute;] (b) in any other case, of both parties to the dispute agree in writing to submit the dispute to the shipping master. 112[(1-A) Any complaint of dispute received by the shipping master from an Indian seaman, on a vessel registered in a country other than India, in Indian territorial waters, with the master, owner or agent.] (2) The shipping master shall hear and decide the dispute so submitted and an award made by him upon the submission shall be conclusive as to the rights of the parties, and any document purporting to be such submission or award shall be prima facie evidence thereof. (3) An award made by a shipping master under this section may be enforced by 113[a Judicial Magistrate of the first class or a Metropolitan Magistrate, as the case may be], in the same manner as an order for the payment of wages made by such magistrate under this Act. (4) Nothing in the Arbitration Act, 1940 (10 of 1940), shall apply to any matter submitted to a shipping master for decision under this section. 150. Power to refer disputes between seamen and their employers to tribunals. (4) Nothing in the Arbitration Act, 1940 (10 of 1940), shall apply to any matter submitted to a shipping master for decision under this section. 150. Power to refer disputes between seamen and their employers to tribunals. (2) The tribunal so constituted shall have power to regulate its own procedure and shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters:— (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) issuing commissions for the examination of witnesses; (d) any other matter which may be prescribed; and any proceeding before the tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860). (3) No party to a dispute shall be entitled to be represented by a legal practitioner in any proceeding before the tribunal except with the consent of the other party or parties to the proceeding and with the leave of the tribunal. (4) The tribunal shall dispose of the reference expeditiously and shall, as soon as practicable on the conclusion of the proceedings, submit its award to the Central Government. (5) On receipt of the award, the Central Government shall cause it to be published and the award shall become enforceable on the expiry of thirty days from the date of such publication: Provided that where the Central Government is of opinion that it will be inexpedient on public grounds to give effect to the award or any part of it, it may before the expiry of the said period of thirty days by order in the Official Gazette either reject the award or modify it, and where the Central Government does so, the award shall not become enforceable or shall become enforceable subject to the modifications, as the case may be. (6) An award which has become enforceable under this section shall be binding on— (a) all parties to the dispute; (b) where any party to the dispute is the owner of the ship, his heirs, successors, or assigns. (6) An award which has become enforceable under this section shall be binding on— (a) all parties to the dispute; (b) where any party to the dispute is the owner of the ship, his heirs, successors, or assigns. (7) Save as otherwise provided in the award, an award shall remain in operation for a period of one year from the date on which it becomes enforceable and shall thereafter continue to remain in operation until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award. (8) Any money due to a seaman from the owner of a ship under an award may be recovered as wages. (9) Nothing contained in the Industrial Disputes Act, 1947 (14 of 1947), shall apply to any dispute between seamen or any class of seamen or any union of seamen and the owners of ships in which such seamen are employed or are likely to be employed. 6. A careful scrutiny of the above provisions shows that, Section 132 would apply when a dispute is raised by an individual crew member of a ship, with the master, owner or agent, as regards the agreement executed under Section 100. On the other hand, Section 150 confers Central Government with the power to constitute a Tribunal and refer any dispute between seamen or any class of seamen or any Union of seaman and the owners of ships in which such seamen are employed or are likely to be employed and such dispute relates to any matter connected with or incidental to the employment of the seaman. 7. Thus, section 132 provides for redressal of individual grievances of crew men with respect to the matters covered by the agreement under Section 100, while Section 150 contemplates class action, when disputes are raised either by seamen or their unions. Being so, section 132 cannot be termed as an efficacious remedy, which the union seeking class action is liable to exhaust, before demanding for the constitution of a Tribunal under Section 150 for referring the dispute raised by the Union. Apparently, in Ext.P9, the petitioners have not confined their dispute with respect to the agreement executed between seamen and the master or owner of the ship. Apparently, in Ext.P9, the petitioners have not confined their dispute with respect to the agreement executed between seamen and the master or owner of the ship. On the other hand, the petitioner is seeking reference of disputes in relation to matters incidental to the employment of seamen. As such, it is evident that the first respondent failed to appreciate the demand raised by the petitioner, through its representation, in the proper perspective. In the result, the writ petition is allowed and the first respondent is directed to consider Ext.P9 as a representation seeking constitution of a Tribunal and for referring the dispute raised by it therein under Section 150 of the Merchant Shipping Act. The needful in this regard shall be done within three months of receipt of a copy of this judgment.