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PETITIONER: A STEEL INDUSTRIALS KERALA LTD.

       Vs.

RESPONDENT: CAPT. S.M. REBELLO & ORS.

DATE OF JUDGMENT26/02/1985

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1985 AIR  760            1985 SCR  (2) 998  1985 SCC  (2) 363        1985 SCALE  (1)289

ACT:      Term   appointment   for   a   fixed   period-Premature termination of  services of a Master of the ship-Whether the "master of  a ship"  is a "seaman" within the meaning of the provision of the Merchant Shipping Act, 1958 for the purpose of entitlement  to get  full compensation on the termination of his  services, for  the entire  period of  his  contract- Section 3(22), 3(42), 89, 101,103,118,120,125,143,148,178,to 183 of  the Merchant Shipping Act, 1958-Whether the contract of appointment  of a  master of  a ship and the owner is the nature of  a contract  of  personal  service  and  therefore cannot be specifically enforced.

HEADNOTE:       The  respondent was appointed on October 22,1980 for a period of  one year  as a  "master ’ of the ship called ’M V Anastasis" in  terms of the appointment order under which he was entitled  to two  months’ wages,  if the  was discharged before the  completion of his term The said ship on December 11, 1980,  touched the  harbour and  thereafter proceeded to Beypore, Calicut, where the respondent was informed that the ship having  been sold  as a scrap to the appellant company, Steel Industries, Kerala, he should handover the ship to the company. Consequent  upon the  sale of the ship, by an order dated  20.12.80   the  services   of  the   respondent  were terminated. On  December 22,  1980 the  respondent  wrote  a letter to  the previous  owner of  the ship of having handed over the  ship to  the appellant  company  On  24.12.80  the respondent moved  the Magistrate  under section  145 of  the Merchant Shipping  Act, 1958 for payment of necessary wages. The Magistrate  after considering  all the  pros and cons of the matter  felt that  the respondent  was entitled  to  get compensation  at  least  equivalent  to  three  months’  pay calculated at  $1800 per  month In  appeal the High Court of Kerala increased  the compensation  equivalent to one year’s wages.       Allowing  the company’s’ criminal appeal No 240/82 and dismissing o the Master’s appeal No 661/82, the Court ^       HELD:  1 The  High Court  has misconstrued the various sections of the Merchant Shipping Act, 1958 and by a strange process of  reasoning arrived  at the  conclusion  that  the

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respondent was  entitled to  full compensation  of one years wages even if his services were terminated before the expiry of his  actual term,  when in  fact  the  ship  having  been treated as a 999 scrap was  no longer required and therefore his services had to be  dispensed A  with and  when  the  respondent  himself rightly understood  the terms of his appointment and put his claim at two months’ wages only. [1006H; 1007]       2.1  There is  no provision  in the  Merchant Shipping Act, 1958  which equates a seaman with a master of a ship in regard to  the terms and conditions or emoluments or mode of discharge or  under which  a matter  of a  ship  can  get  a discharge  certificate  But  under  section  143  read  with section 148  a Master  is entitled  to three  months’ wages. [1005C-E]       2.2  A perusal of the relevant section clearly reveals that the  statute make  a well  knit distinction  between  a ’seaman’ and  a Master’  of  the  ship.  The  definition  of ’Master’ in  sub-section(22) of section 3 does not include a seaman. Sub-section  42 of  section 3  clearly shows  that a ’seaman’ cannot in the ordinary sense of the term be equated with a  ’Master’ but  for certain  specific  purposes  under sections 178 to 183 it includes a ;Master In sub section (1) OF section  180, the  word ’Master"  has been  used for  the first time  but even  here the  term has  been used  not  to equate a  seaman with  a master  but in  quite  a  different context and  subserve a  different purpose.  [1002B, D, E-F, 1003D]       2.3  There is  no clear provision from which it can be inferred either  directly or  by necessary intendment that a master  is   also  a  seaman  for  the  purpose  of  getting compensation if  his services  were terminated.  The various sub-sections of  section 89  do not  at all govern the terms and conditions  of a  master’ but  serve to  carve  out  his duties at  various levels or stages. Sections 101, 103, 108, 119, 120,  121. 132,  143 and  199 of  the Merchant Shipping Act-all these  govern the  terms and conditions of a service of a  seaman and  the crew  and have  nothing to do with the master of  A ship.  It is  true that sub-sections I and 2 of section 148  provide that  a master of a ship would have the same rights, liens and remedies for recovery of his wages as a seaman  either under the four corners of the Act or by any law or  custom. But  there is  no provision in the Act under which a  discharge certificate can be given to a master of a ship or even otherwise, a master cannot claim the rights and privileges of  a seaman  because a  master of  a ship  is an officer of  a higher  rank than that of a seaman. Therefore, his terms and conditions are bound to be different from that of a seaman. [1003E-F, 1004B, F, 1006A-B]       3.  The contract  between the master of a ship and the owner is in the nature of a contract of personal service and cannot be specifically enforced.                                                      [1006D]              Dr.  S. B.  DurJ v. University of Delhi, [l959l S.C.R. 1236 referred to.              [The  Court directed (i) that the excess amount which has  been with.  drawn  by  the  respondent  shall  be refunded to  the appellant within four months from 26. 2. 85 either in  installment or  in one  lump-sum failing which it will be  open to the appellant to recover the same by was of restitution, and  (ii) that  if the  amount is  not returned within four  months then  the recovery  will  be  made  with interest at the rate of 12% per annum.] [1007E-F] H 1000

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 240 of 1982       From  the Judgment  and Order dt. 2.3.1982 of the High Court of Kerala at Ernakulam in Crl. R.P. No. 435181.       Criminal Appeal No. 661 of 1982       From  the Judgment and Order dt. 12.2.1982 of the High Court of  Kerala at  Ernakulam in  O.P.  No.  6834/81.  G.L. Sanghi, G-N Rao, A.S. Nambiar, after Singh for the Appellant in Crl. A. No. 240182 & Respondents in Crl. A. No. 611/82.       Govind  Mukhoty, Mr.  V. Maya  Krishnan, A N. Bordiyar for the  Respondents in Crl- A. No- 240/82 and Appellants in Crl. A. No. 661182. D       S.M. Rebelo (In person).       The Judgment of the Court was delivered by,       FAZAL  ALI, J. BY Our Order dated February 12, 1985 we disposed  of   the  above-mentioned  two  criminal  appeals- dismissed criminal  appeal No.  66118,2 and allowed criminal appeal No.  240 of  1982. We now proceed to give the reasons for our Order       The  facts of  the  case  lie  within  a  very  narrow compass. The  appeal by  special leave has been filed by the appellant-company   contending that  the respondent  was not entitled in law to get full compensation for one year as was granted by  the High  Court for premature termination of his services. The  detailed facts  have been  given by  the High Court and  the criminal  court and  it is  not necessary  to repeat the same. However, in  older to  understand the delicate and difficult points raised by the respondent, it may be necessary to give a short  history of  the circumstances in which the services of the  respondent, who  was Master of the ship called ’M.V. Anastasis’, were  terminated it  is common  ground that  the respondent was  appointed on October 22 l980 for a period of one year.  It is  not disputed that on December 11, 1980 the said ship touched the harbour and thereafter 1001 proceeded to  Beypore, Calicut where the respondent received a A  message from  the owner  of the  ship that the ship has been  sold   as  scrap   to  the   appellant-company,  Steel Industrials Kerala Ltd Consequent upon the sale of the ship, by an  order dated  20.12.80 the  services of the respondent were terminated.  On December 22, 1980, i e, two days later, the  respondent   wrote  a  letter  to  the  previous  owner intimating that, as directed, he had handed over the ship to the appellant-company-  A  little  later  on  24.12.80,  the respondent moved the Magistrate under s. 145 of the Merchant Shipping Act,  1958 (hereinafter  referred to  as the ’Act’) for payment  of necessary  wages.......The Magistrate  after considering all  the pros  and cons  of the matter felt that the respondent  was entitled  to get  compensation at  least equivalent  to   three  months’  pay.  The  respondent  was, however, not  satisfied with  the order  of  the  Magistrate because  he  claimed  a  much  higher  compensation  as  his services were  terminated before  completion of one year for which he  was appointed.  It is  true that the salary of the respondent, calculated  at the  rate  of  $1800  per  month, amounts to  a substantial  sum of  money if  he were  to get compensation on  a full  salary basis for the entire period, which actually  he had  not served-  We  are,  however,  not concerned with  the quantum  of the  compensation  which  he could get, but the main point for consideration in this case

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is to  whether or  not his  claim for  compensation for  the whole year could be entertained. In one of the letters which he had  written to  the owner  of the  ship he  had  himself admitted that he was entitled to two months’ notice pay plus other emoluments.  This would show that the contract between the parties  as understood  by them was that if the services of the  respondent were  terminated before completion of the term of  one year,  he would  be  entitled  to  two  months’ notice. the Magistrate, however, took a more liberal view in the matter  and held  that the respondent was entitled to at least  three   months’  notice   and  consequently   to  the emoluments calculated  at the  rate of  $1800 per month, and accordingly ordered  payment of three months’ pay This is in accordance with s. 143 read with s. 148 of the Act.       It  is manifest that under the contract the respondent was not  appointed to  any permanent  post which was to last until his  retirement but  his appointment was really a term appointment for a fixed period.       The  main contention  of the  respondent before us was that as  he  did  not  get  any  discharge  slip  under  the provisions of the Act, he 1002 was entitled  to full wages for the entire term of one year. In this  connection, he  relied on certain provisions of the Act to which we shall refer here after.       It  appears that the respondent seems to have presumed that he  was equal  in status  to  that  of  a  seaman  and, therefore, unless  a discharge  certificate was given to him he was entitled to compensation for the entire period of the contract.  A  perusal  of  the  relevant  sections,  clearly reveals that  the statute  makes  a  well  knit  distinction between a seaman and a master of the ship.      This now  takes us  to  an  analysis  of  the  relevant provisions of  the Act  on which reliance has been placed by the respondent.  To begin  with, sub-section  (22) of  s.  3 defines a ’Master’ thus:              "master" includes any person (except a pilot or      harbour master) having command or charge of a ship;"       It  is  pertinent  to  note  that  the  definition  of ’Master’ does  not include  a  seaman  and,  therefore,  the argument of  the respondent that he should be equated with a seaman or treated as such, cannot be accepted and is in fact without any  substance. Sub-section  (42) of  s. 3 defines a ’seaman’  as   every  person  (except  a  master,  pilot  or apprentice) employed or engaged as a member of the crew of a ship but for certain specific purposes under sections 178 to 183 it  includes a  master. An  analysis of this sub-section shows that a seaman cannot in the ordinary sense of the term be equated  with a  ’master’. Thus,  the second part of sub- section (42)  on which  great reliance  was  placed  by  the respondent clearly  carves out a separate area where for the purpose of this sub-section a seaman might include a master. This limited  area is to be found within the four corners of sections 178  to 183.  This now brings us to a consideration of 9. 178 which may be extracted thus:-              "178. Meaning of serving seaman                  A seaman  shall, for  the purposes of these      provisions, be deemed to be a serving seaman during any      period commencing on the date of the agreement with the      crew and ending thirty days after the date on which the      seaman is finally discharged from such agreement." 1003       There  is nothing  in this  section to indicate that a seaman can  m any  sense of  the  term  be  equated  with  a ’master’. Even  s. 179  refers only  to a serving seaman and

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not a  Master. The  relevant provisions  of s.  180  may  be extracted thus::                   "180.  Notice  lo  be  given  in  case  of      unrepresented seaman                  (1) If a collector has certified under sub-      section (2) of section 179, or if a court has reason to      believe that  a seaman who is a party to any proceeding      before the  court, is  unable to appear therein or is a      serving seaman,  the Court shall suspend the proceeding      and shall give notice thereof to the shipping master :"       This  section merely  provides that  if  a  court  has reason  to  believe  that  a  seaman  was  a  party  to  any proceeding and  does not  appear therein,  the  court  shall postpone the  proceeding and  give  notice  thereof  to  the shipping master.  In this sub-section, the word ’master’ has been used  for the first time but the term has been used not to equate  a seaman  with a  master but in quite a different content and  subserve a different purpose The other sections also, particularly  s. 183,  merely provide  that a  serving seaman may  refer the  question to the shipping master whose certificate shall  be conclusive  evidence on  the  question whether a  seaman  was  a  serving  seaman  or  not  at  any particular time  or period. There is no clear provision from which it  can be  inferred either  directly or  by necessary intendment that a master is also a seaman for the purpose of getting  compensation   if  his  services  were  terminated. Section 89  defines the duties of shipping masters which may be extracted thus: F      "It shall be duty of shipping masters -                   (a)  to  superintend  and  facilitate  the      engagement  and  discharge  of  seamen  in  the  manner      provided in this Act:               (b) to provide means for securing the presence      on , Board at the proper times of the seamen who are so      engaged;               (c) to facilitate the making of apprenticeship      to the sea service; 1004      (          d) to hear and decide disputes under section      132 between  a master, owner or agent of a ship and any      of the crew of the ship,                 (e) to perform such other duties relating to      seaman, apprentices  and merchant  ships as are for the      time being committed to them by or under this Act."       The various sub-sections of s. 89 do not at all govern the terms  and conditions  of a  ’master’ but serve to carve out his  duties at  various levels  or stages. Similarly, s. 101 refers  only to  the question  that there  should be  an agreement with  the crew  in a  prescribed form. There is no reference to  the terms and conditions of a master in any of the sub-sections.  Section 103  is a  general section  which governs the terms and conditions of a seaman and there is no reference to  a master of the ship. Reliance was then placed on s.  118, the  relevant portion  of which may be extracted thus:           "118. Discharge before shipping master                 (1) When a seaman serving in a foreign-going      ship  is,   on  the   termination  of  his  engagement,      discharged in  India, he  shall, whether  the agreement      with the  crew be  an agreement  for the  voyage  or  a      running agreement, be discharged in the manner provided      by this Act in the presence of a shipping master."       This  sub-section taken  together with  the other sub- sections also  governs the  terms and conditions of a seaman and not  those of  a master  of the ship. Section 119 merely

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provides that  the master  shall sign and give to seaman who is  discharged,   a  discharge  certificate  either  on  his discharge or  on payment  of his wages specifying the period of his service and the time and place of his discharge. This section also  governs the  terms and  conditions of a seaman and has  nothing to  do with  the terms  and conditions of a master  of   a  ship.  Similarly,  s.  120  relates  to  the consequences where a seaman is discharged.       Some  reliance was  also placed  on sub-section (1) of s.125 which may be extracted below:            "125. Master to deliver account of wages 1005                  (1) The  master of every ship shall, before      paying off  A or  discharging a  seaman under this Act,      deliver at  the time and in the manner provided by this      Act a  full and  true account in the form prescribed of      the seaman’s  wages and  of all  deductions to  be made      therefrom on any account whatever-" B       This  again defines  the duties of a master in respect of a  seaman who  is discharged.  Section 132  provides  the procedure   to be followed in case any dispute arises, under the agreement  with the  crew, between  the master, owner or agent of  a ship  and lays  down that  the  same  should  be submitted for decision to the shipping master.       Section  143, on  which some  reliance was  placed  by counsel for the respondent, refers only to the circumstances under  which   a  seaman   could  be   discharged  and   the consequences ensuing therefrom. D       It  is  apparent  from  the  facts  narrated  and  the analysis of  the sections  made  by  us  that  there  is  no provision in the Act which equates a seaman with a master of a ship  in regard  to the terms and conditions or emoluments or mode  of discharge.  In fact, there is no provision under which a  master of  a ship  can get a discharge certificate. But under  s. 143  read with  s. 148 a Master is entitled to three months’  wages in  case of discharge or termination in the same  manner as  a seaman  is entitled  to three months’ wages.       Great reliance was, however, placed by the counsel for the respondent  on sub-sections  (l) and  (2) s.  148  which provide that  a master of a ship would have the same rights, liens and  remedies for  recovery of  his wages  as a seaman either under  the four  corners of  the Act or by any law or custom Sub-s.(2) may be extracted thus:                  "(2) The  master of a ship and every person      lawfully acting  as master  of a  ship by reason of the      decease or in- G capacity 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." 1006      Hence, it  is manifest that since there is no provision in the  Act under which a discharge certificate can be given to a master of a ship or even otherwise, he cannot claim the rights and  privileges of  a seaman.  This is  obviously  so because a  master of  a ship  is an officer of a higher rank than that of a seaman and therefore his terms and conditions are bound to be different from that of a seaman.       Reliance  was also  placed on  s. 199 of the Act which also deals  not with the condition is of service of a master but of  the forfeiture of wages of a seaman on apprentice on desertion from a ship.       It  was contended  on behalf of the appellant that the

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contract between  the master  of a ship and the owner was in the nature  of a  contract of personal service and could not be specifically  enforced.  This  view  is  supported  by  a decision of  this Court  in Dr.  S.B. Dutt  v. University of Delhi(1) where Sarkar, J., observed thus:                "The High Court had held that it was not open      to the arbitrator "to grant Dr. Dutt a declaration that      h was  still a  professor in  the University  which  no      Court could  or would  give him".  The High  Court felt      that this  declaration amounted to specific enforcement      of a  contract of  personal service which was forbidden      by s.  21 of  the Specific  Relief  Act  and  therefore      disclosed an error on the face of the award.                  We are  in entire  agreement with  the view      expressed by  the High  Court. There is no doubt that a      contract of  personal service  cannot  be  specifically      enforced."       Thus,  the appellant rightly pointed out that Annexure I appearing  at page  64 of the paperbook in criminal appeal No.  240   of  1982,   clearly  defines  the  terms  of  the appointment of Capt. Rebello, master of the chip. It is true that s-  148 provides that a master of a ship shall have the same rights  and remedies as a seaman but that is only for a particular purpose.        In   these  circumstances,   the   High   Court   has misconstrued the  various sections  of  the  Act  and  by  a strange process  of reasoning arrived at the conclusion that the respondent was entitled to full (1) [1959] S.C.R. 1236. 1007 compensation of  one year’s  wages even if his services were terminated before  expiry of  his actual term but there does not appear to be any warrant for this view.       Thus,  having regard  to the various provisions of the act which we have analysed fully, there can be no doubt that the High  Court was  not at all legally justified in holding that the  respondent was entitled to wages for one year when in fact  the ship  having been  treated as  a scrap  was  no longer  required   and,  therefore,   the  services  of  the respondent had  to be dispensed with. The respondent himself understood the  terms of  his appointment (mentioned at page 64 of the paperbook) and has therefore rightly put his claim at two  months’ wages if he was discharged before completion of his  term.  As  already  indicated,  the  Magistrate  has awarded the  compensation for three months’ wages instead of two months’ wages and we entirely agree with his view.      The result  is that we allow criminal appeal No. 240 of 1982, set  aside the  judgment of the High Court and restore that of  the Magistrate. Criminal appeal No. 661 of l982, is dismissed but in the circumstances of the case there will be no order as to costs.      The excess  amount which  has  been  withdrawn  by  the respondent shall  be refunded  to the  appellant within four months from  today either in instalments or in one lump-sum, failing which  it will  be open  to the appellant to recover the same by way of restitution If the amount is not returned within four  months, then  the recovery  will be  made  with interest at the rate of 12% per annum S R.                               C.A. No. 24018 ’ allowed.                                   C.A. No. 661182 dismissed. 1008