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Union Carbide India Ltd. Vs. Industrial Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1978)ILLJ526AP
AppellantUnion Carbide India Ltd.
Respondentindustrial Tribunal and anr.
Excerpt:
.....shall be registered under the act. there are innumerable provisions in this act which deal with seamen employed in all kinds of ships, while there are also provisions which are restricted to seamen with whom agreements are entered into under section 100. if the interpretation sought to put upon the definition of 'seamen' in section 3(42) by the respondents is to be accepted then all the provisions of the act will have to be confied in their application only to seamen with whom agreements are entered into under section 100 it was pointed out that the expression used in section 3(42) is 'employed or engaged as a member of the crew of a ship under this act'.it was argued that if this definition was applicable to all seamen it would have been sufficient to have used the expression..........into. the question for consideration is whether such persons can be said to be members of the crew engaged or employed under the act, there is no provision of the act dealing with the engagement or employment of a member of the crew in respect of home trade ships of less than two hundred tons gross. it is, therefore, argued on behalf of the respondents that members of the crew of home-trade ships of less than two hundred tons cannot be said to he members of the crow engaged or employed under the act. sri k. srinivasamurthy, learned counsel for the appellant submitted that though there was no agreement with the workmen concerned as no such agreement is required as the ship is less than two hundred tons gross, the respondents are still employed or engaged as members of the crew under.....
Judgment:

Alladi Kuppuswamy, J.

1. This is an appeal against the judgment of Madhava Reddy, J. dismissing a writ petition filed by the appellant praying for the issue of a writ of certiorari to quash the order of the first respondent, the Industrial Tribunal, Andhra Pradesh, Hyderabad, first respondent, the Industrial Tribunal, Andhra Pradesh, Hyderabad, overruling a preliminary objection raised by the appellant that the Tribunal had no jurisdiction to decide the dispute between the appellant and certain workmen represented by the second respondent-union, referred to it by the Government.

2. The appellant is a company carrying on inter alia the business of exporting prawns. It owns two fishing trawlers weighing 149 tons each, which are registered under the Merchant Shipping Act, 1958 (referred to in the judgment as the Act). It has on board 20 persons; a skipper, a mate, two engineers, two oil men, two cooks and 12 fishermen. According to the appellant these fishermen also from part of the crew; whereas according to the respondent they are mere fishermen and are not members of the crew; A dispute between the 12 fishermen and the appellant was referred to the Industrial Tribunal for decision as I.D. No. 6 of 1975. Under Section 150 of the Act it is provided that where the Central Government is of opinion that any dispute between seamen and the owners of ships exists and such dispute relates to any matter connected with or incidental to the employment of the seamen, the Central Government may constitute a Tribunal and refer the dispute to the Tribunal adjudication. Section 150(9) provides that nothing contained in the Industrial Disputes Act shall apply to any dispute between seamen and the owner of ships in which such seamen are employed. On the strength of this provision the appellant raised a preliminary objection before the Industrial Tribunal that the Industrial Disputes Act has no application and the dispute is liable to be decided only by a Tribunal constituted by the State Government under the Industrial Disputas Act had no jurisdiction to decide the dispute. The Industrial Tribunal considered this preliminary objection and by its order dated 6th August, 1975 overruled the preliminary objection and held that the Tribunal had jurisdiction to proceed with the adjudication of the dispute. The appellant thereupon filed the writ petition praying for the issue of a writ of certiorari to quash the petition praying for the issue of a writ of certiorari to quash the order of the Tribunal. This Court dismissed the writ petition holding that the jurisdiction of the Industrial Tribunal was not barred by Section 150(9) of the Act. As has already been noticed under Section 150(1) of the Act the jurisdiction to decide a dispute between seamen and the owner of a ship is vested in a Tribunal to be appointed by the Central Government and the Industrial Disputes Act shall not apply to any such dispute by reason of Section 150(9). The expression 'seamen' is defined in Section 3(42) of the Act in the following terms:

'Seaman' means every person except a master pilot or apprentice employed engaged as a member of the crew of a ship under this Act, but in relation to Sections 178 - 183 (inclusive) includes a matter.

The contention of the appellant is that the workmen concerned are seamen within the meaning of Section 3(42) of the Act as they are persons employed or engaged as members of the crew of the ship under the Act. The contention of the workmen on the other hand is that they are not members of the crew of the ship. Even assuming that they are to be regarded as members of the crew they are not employed or engaged as members of the crew under the Act so as to come within the definition of 'seamen'. In support of the contention that the fishermen concerned were members of the crew the appellant relied upon certain documents to show that these 12 fishermen were also regarded as members of the crew. Oral evidence was also let in to show that the twelve workmen who were described as deckhands though engaged to catch prawns, were also doing the work of washing the ship, operating the winch and also steering the trawler and were given training in these matters. On the other hand, the Vice-President of the Employees' Union deposing on behalf of the workmen stated that the deckhands were not registered under the Merchant Shipping Act, though he admitted that the deckhands also attend to anchoring duties of the ship and washing the ship. After considering this evidence the Tribunal observed that assuming for a moment that the deckhands also steer the trawler they were not employed for that purpose. It was also not shown under what provision the deckhands were given training in the matter of steering, etc., and it was difficult to hold that the deckhands were engaged or employed for the steering operation of the vessels. The Tribunals went to say that even assuming for a moment that they form the compliment of the crew, as it was admitted that there were no agreements entered into between the management and the deckhands as envisage by Section 100 of the Act. They could not be said to be seamen employed or engaged as members of the crew under the Act and it is only in respect of disputes between the owner and seamen employed or engaged as members of the crew under the Act that the Industrial Disputes Act has no application and the dispute has to be decided by a Tribunal appointed by the Central Government In the result, it held that it had jurisdiction to decide the dispute. In the writ petitionour learned brother did not express any opinion as to whether the workmen were members of the crew or not. He, however, agreed with the Tribunal that as there were no agreements between them and the owner as provided under Section 100 of the Act they cannot be said to be person 'employed or engaged as members of the crew under the Act' and, therefore, they do not come within the definition of 'seamen' under Section 3(42) of the Act.

3. As has already been noticed 'seaman' is defined as a person employed or engaged as a member of the crew under the Act. Section 100 provides that the master of every Indian ship except a home-trade ship of less than two hundred tons gross, shall enter into an agreement (in this Act called the agreement with the crew) in accordance with this Act with every seaman who he engages in and carries to sea as one of his crew from any port in India. It is admitted that in this case the trawler of the appellant is a home trade ship of less than two hundred tons gross and hence no agreement is required to be entered into with the seamen engages as members of the crew and to agreement was in fact entered into. The question for consideration is whether such persons can be said to be members of the crew engaged or employed under the Act, There is no provision of the Act dealing with the engagement or employment of a member of the crew in respect of home trade ships of less than two hundred tons gross. It is, therefore, argued on behalf of the respondents that members of the crew of home-trade ships of less than two hundred tons cannot be said to he members of the crow engaged or employed under the Act. Sri K. Srinivasamurthy, learned Counsel for the appellant submitted that though there was no agreement with the workmen concerned as no such agreement is required as the ship is less than two hundred tons gross, the respondents are still employed or engaged as members of the crew under the Act. He submitted that the expression 'employed or engaged' as members of the crew of a ship under the Act only means that the members of the crew who are employed must be governed by the provisions of she Act and as members of the crew of ships less than two hundred tons are also governed by the provisions of the Act they must be considered as persons employed as members of the crew under the Act. We are inclined to agree with this.

4. Section 3(42) does not say that in order to come within the definition of a 'seaman' he should enter into an agreement under Section 100 If it was intended that the expression 'seaman' should be restricted only to those who enter into agreements under Section 100 there was no difficulty in defining 'seaman' as those members of the crew with whom an agreement under Section 100 is entered into. It is only in regard to members of the crew of a home-trade ship of not lets than two hundred tons that Section 100 provides that an agreement should be entered into in the prescribed form referred to in the Act as 'agreement with the crew'. Section 101 deals with the forms and contents of such an agreement. Sections 102 - 103 are other provisions relating to the agreement. If the expression 'seaman' as defined in Section 3(42) is interpreted so as to include only ''seaman' with whom agreements are entered into under Section 100 of the Act, it would have the effect of excluding from the purview of the Act all members who are numbers of the crew of ships less than two hundred tons. A perusal of the several provisions of the Act, however, makes it clear that the Act applies not only to members of crew of ships over two hundred tons but all other ships as well Under Section 22 of the Act every Indian ship which exceeds fifteen tons and is not employed solely in navigation on the coasts of India shall be registered under the Act. Part VII deals with seaman. Section 88 empowers the Central Government to make rules for the classification of 'seaman' into different categories. Section 89 provides that it shall be the duty of the shipping Master to superintend and facilitate the management and discharge of seaman in the manner provided in this Act. Section 95 provides inter alia that it shall be the business of the seamen's employment offices to regulate and control the recruitment of persons for employment as seamen. Section 95(2) states that no person shall receive or accept to be entered on board any ship any seaman of the categories prescribed under that section unless such sea' man has been supplied by such seamen's employment office. Section 95(3) provides for rules being made by the Central Government for the purpose of enabling seamen's employment offices effective to exercise their powers under the Act. Under Section 96 engagement of seamen in contravention of the Act is prohibited. Section 98 deals with the qualifications for and She medical examination of seamen. Section 99 provides that no person shall engage or carry to sea any seaman under she Act in any ship except a homo trade ship of less than two hundred tons gross from any port in India unless the seaman is in possession of a certificate of discharge or a continuous certificate of discharge issued under the Act. Sections 100 - 108, as has already been noticed, deal with the 'agreement with the crew' which a master of every Indian ship except a home-trade ship of less than 200 tons gross shall enter into with every seaman. Thus, it is seen that while Sections 99 and 100 - 108 deal with seamen of the ships other than home-trade ships of less than two hundred tons, the other provisions referred to above deal with employment and engaged of seamen of all ships whether they are home-trade ships of less than two hundred tons or of any other category. There are innumerable provisions in this Act which deal with seamen employed in all kinds of ships, while there are also provisions which are restricted to seamen with whom agreements are entered into under Section 100. If the interpretation sought to put upon the definition of 'seamen' in Section 3(42) by the respondents is to be accepted then all the provisions of the Act will have to be confied in their application only to seamen with whom agreements are entered into under Section 100 It was pointed out that the expression used in Section 3(42) is 'employed or engaged as a member of the crew of a ship under this Act'. It was argued that if this definition was applicable to all seamen it would have been sufficient to have used the expression 'employed or engages as a member of the crew of a ship' and there is no need to add the further purchase 'under this Act'. This submission is not well-founded. The expression 'under this Act' has in our view been deliberately added in order to restrict the definition of 'seamen' to such seamen who are employed in conformity with the provisions of the Act. Such provisions are not merely Section 100 and other sections which deal with seamen employed in ships exceeding two hundred tons but also Sections 89, 90, 96, 97 and 98 which also deal with the manner of employing seamen and the conditions to be complied with for such employment. Apparently it was intended that the Act should apply to all persons employed as members of the crew in conformity with the provisions of the Act. But it does not follow that it should be confined to the particular categories of seamen with whom agreements under Section 100 are entered into.

5. In this connection it is also to be noted that the most important consideration in the, case of ships which are most of the time away on the high seas would be discipline of the crew and if members of the crew employed in home-trade ships of less than two hundred tons are not regarded as seamen they would not be subject to the discipline of the master who would be helpless in the case of any indiscipline when the ship is on the high seas. Reference may be made to Section 10 of the Act which provides inter alia that no seamen shall knowingly do anything tending to the immediate loss or destruction of or serious damage to, the ship or tending immediately to endanger the life of, or to cause injury to any person belonging to or on board the ship or refuse or omit to do any lawful act proper and requisite to be done by him for preserving the ship from immediate loss, destruction or serious damage, etc. It cannot be argued that this applies only to seamen who are employed in a ship exceeding two hundred tons and will not apply to a home-trade ship of less than two hundred tons. Similarly the provision regarding desertion and absence without leave of a seamen under Section 191 cannot be said to apply only to crew of ships of more than two hundred tons. Again, Section 195 deals with smuggling of goods by seamen. It could not have been intended that this provision should not apply to home-trade ships of less than two hundred tons. It is, therefore, clear that the expression 'seamen' as defined in Section 3(42) should include all 'seamen' who have been engaged or employed in accordance with the provisions of the Act and should not be confined only to those with whom an agreement is entered into under Section 100 of the Act.

6. The learned Counsel for the respondents drew our attentions to the Merchant Shipping Act of England. In Section 742 'seamen' is defined as including every person (except masters, pilots and apprentices duly intentured and registered) employed or engaged in any capacity on board and ship. It was argued that there is a difference in the language between the definition under the English Act every person employed or engaged in any capacity on board any ship is a 'seaman' the definition of 'seamen' under the Indian Act is confined only to persons employed or engages as members of the crew under the Act.

7. The learned Counsel for the respondents strongly relied upon the circumstances that when the Central Government was addressed, the Central Ministry of Shipping and Transport replied under Ext. W5 that the dispute is not governed by the Merchant Shipping Act. We are not bound by any view expressed by the Central Government on a question of law which has to be decided on a proper interpretation of the relevant provisions, Sri Srinivasamurthy has now produced a letter addressed by the Government of India to the appellants in which the Director General of Shipping has stated that the crew of Fishing Trawlers registered under the Merchant Shipping Act would come within the definition of 'seamen' under Section 3(42) of the Act. Thus, different departments of the Government of India have been taking different views at different times. We cannot in any be influenced by the views of the Government of India one way or the other. We have, therefore, addressed ourselves to the question independently of the views expressed by the Government of India.

8. For the above reasons we are of the view that the expression 'stamen' as defined by Section 3(42) is not confined only to those who are employed or engaged as members of the crew by entering into agreements under Section 100 of the Act. With respect we differ from the view expressed by our learned brother agreeing with the Tribunal that Section 150 has no application to the fishermen concerned in this case as they have not entered into agreement under Section 100 of the Act as the ship in which they were employed is a home-trade ship of leas than two hundred tons.

9. In the view that he took Madhava Reddy, J. did not consider the question whether the employees concerned with the dispute have been employed as members of the crew within the definition of Section 3(42). The Industrial Tribunal also while stating that one of the questions that arise is whether the employees are members of the crew or not, did not give a categorical finding on that aspect as it was of the view that Section 150 of the Act has no application as the employees concerned had not entered into agreements under Section 100. In the view we have taken, the further question has to be gone into, namely, whether the employees concerned have been employed or engaged as members of the crew under this Act. In other words,, the Tribunal has to go into the question whether they are members of the crew and if so whether they have been employed in conformity with the provisions of this Act in which case only they will become seamen within the meaning of Section 3(42) and Section 150 will be applicable.

10. We, therefore, quash the order of the Industrial Tribunal and direct them to consider whether the employees concerned have been employed or engaged as members of the crew under this Act in which case the Industrial Tribunal will have no jurisdiction to hear the dispute.

11. The writ appeal is allowed, but in circumstances without costs.


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