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PETITIONER: IBRAHIM AND ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND ANR.

DATE OF JUDGMENT: 21/11/1967

BENCH: HIDAYATULLAH, M. BENCH: 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

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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  mount 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]

JUDGMENT: 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.

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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."

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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

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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. 311