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Indian Quarter Master's Union and Ors. Vs. P.R. Dutt and Anr. (02.02.1951 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 65 of 1960
Judge
Reported inAIR1951Cal570
ActsConstitution of India, Article 226; ;Merchant Shipping Act, 1923 - Section 8
AppellantIndian Quarter Master's Union and Ors.
RespondentP.R. Dutt and Anr.
Appellant AdvocateNaresh Sen Gupta and ;N. Bhattacharjee, Advs.
Respondent AdvocateA.K. Sen and ;D.K. Sen, Advs.
DispositionApplication allowed
Cases ReferredBombay v. Bombay Trust Corporation Ltd.
Excerpt:
- .....regarding their unfitness for services in foreign vessels and to refrain from holding pre-entry medical examinations of seamen or making endorsements on their certificates as a result thereof and also for a writ in the nature of quo warranto requiring the respondents to exhibit the authority under which they are entitled to hold the office for assumption and to pass the orders and do the acts complained of. sinha j. issued a rule nisi on 22nd august 1950.2. the petitioner no. 1 is the indian quartermasters' union consisting of quartermasters popularly known as seacunnies and the petitioners nos. 2, 3 and 4 are seamen. all the petitioners hold certificates of service issued and registered at the port of calcutta under the provisions of the indian merchant shipping act (act xxi [21] of.....
Judgment:

Bose, J.

1. This is an application under Article 226 of the Constitution of India for a writ in the nature of mandamus requiring the respondents to cancel the endorsement on the Certificates of Seamen regarding their unfitness for services in foreign vessels and to refrain from holding pre-entry medical examinations of Seamen or making endorsements on their certificates as a result thereof and also for a writ in the nature of quo warranto requiring the respondents to exhibit the authority under which they are entitled to hold the office for assumption and to pass the orders and do the acts complained of. Sinha J. issued a Rule Nisi on 22nd August 1950.

2. The petitioner No. 1 is the Indian Quartermasters' Union consisting of Quartermasters popularly known as seacunnies and the petitioners Nos. 2, 3 and 4 are Seamen. All the petitioners hold certificates of service issued and registered at the Port of Calcutta under the provisions of the Indian Merchant Shipping Act (Act XXI [21] of 1923). Respondent 1 P. R. Dutt is described as Medical Officer Pre-entry Medical Examination of Seamen (Government of India) Port of Calcutta and respondent 2 E. V. Bobb is the Shipping Master having his office at Calcutta Marine House, Hastings, Calcutta.

3. It is alleged in the petition that under provisions of the Indian Merchant Shipping Act, the Shipping Master of the Port of Calcutta has certain prescribed duties and functions to perform, in respect, of the employment of seamen in foreign going vessels. One of such duties is to supervise execution of proper agreements between the Masters of Ships and Seamen Employed by such Masters. Neither the Shipping Master nor any other official has any right or authority under the law to examine or certify the competence of a seaman for service.

4. It is the Shipping Company requiring the crew and the Master of the Ship concerned who select the requisite number of seamen with some spare hands to replace any one or more seamen selected if he or they are found medically unfit for the voyage concerned. After the selection is made the seamen are put to medical examination by the Shipping Company's Medical Officer and those who pass the medical test are required to sign Articles of Agreement in the presence of the Shipping Master and thereby become member of the crew. This system of recruitment was in vogue till March 1950 when respondent 1 who holds the post of Port Health Officer, Calcutta, purporting to designate himself as Officer, Pre-Entry Medical Examination of Seamen, Government of India, Port of Calcutta, started interfering with the engagements of Indian Seamen by assuming authority and functions of holding medical examination of such seamen and making endorsements of fitness or unfitness on their Certificates of Service, in consultation and cooperation with respondent 2. Respondent 2 has been compelling the seamen to submit to the Medical Examination done by respondent 1 and the respondents have been making or causing to be made rubber stamp endorsements to the effect 'permanently unfit for sea service' on the Certificates of Service of certain seamen and also upon Medical Examination Cards issued to such seamen by respondent 1. In fact such endorsements have also been made on the Cards and Certificates of Service issued to petitioners 2, 3 and 4 and those among the seamen who expressed their unwillingness to submit to the medical examination or protested against the highhanded attitude of the respondents suffered harassment and oppression at the hands of the respondents.

5. It is alleged that the acts of the respondents constitute a serious encroachment upon the rights of the seamen including the petitioners to carry on their occupation freely and without interference, as by reason of such endorsements of 'permanently unfit for sea service' the seamen concerned have lost all prospects of employment as seamen in future. It is alleged that the acts of the respondents have no sanction or authority of law. In the circumstances the petitioners have moved this Court for the reliefs stated above.

6. Respondent 2 in showing cause has stated in his affidavit that as the medical examination by doctors appointed by Shipping Companies proved to be unsatisfactory and complaints and adverse comments were pouring in from foreign countries as to the poor quality and physique of Indian Seamen the Shipowners and the Seafarers' Federation have agreed to the system of Pre-entry Medical Examination and the Shipowners have indicated their interest and co operation in the matter by paying Re. 1 for each seaman examined by Government doctor and engaged by them. It is pointed out that as under the Indian Merchant Shipping Act it is the liability of the shipowners to meet the expenses of providing the surgical and medical service and medicine for the sick member of their crew who has to be discharged or left behind at any port on account of illness the shipowners find it in their own interest desirable to engage only those persons who are physically fit. It is further stated that such examination is in consonance with the present day practice of other nations, and as it is open to the shipowners to employ seamen on reasonable conditions and insist on seamen being examined by Government doctors the seamen have no grounds for grievance. It is further stated that the Government of India along with 33 other nations took part in the Seattle Conference 1946 and at such conference a convention was adopted concerning the medical examination of seafarers. A copy of the convention is annexed to the affidavit. It appears from the Articles of the Convention, that it is a necessary condition of an employment as seaman that a medical certificate of fitness should be produced, but the nature of the medical examination and the particulars to be included in the medical certificate are to be prescribed by a competent authority. No reliable document has been produced before me to show that the Government of India actually participated in the Seattle Conference or has prescribed the nature of the medical examination to be held or the particulars to be set out in the medical certificate. Further there is no reliable evidence before me to show that this convention has been ratified in the manner required by Article 11 of the Convention.

7. It appears that there were discussions and meetings about the desirability of adopting the Convention but whether in fact it has been adopted or ratified is not clear from the documents on record; nor is there any document to show that shipowners have imposed this pre-entry examination as a condition for engagement of seamen. A circular letter purporting to be under the signature of the Shipping Master, Bombay, dated 16-3-1950 has been annexed to the affidavit of Mr. Bobb. The letter says that the Government of India have arranged for the medical examination of seamen by Government Medical Officers at the Ports of Bombay and Calcutta. It does not appear that the system of examination introduced has the sanction or authority of any law or any rule having the force of law.

8. It appears from the affidavit of Mr. P. R. Dutt respondent 1 that this pre-entry medical examination is being conducted under the orders of the Directorate of Health Services, New Delhi. According to this deponent it is eminently desirable in the interest of seamen and the shipping companies to have such pre-entry medical examination. The results of the medical examination of some of the seamen have been extracted from the Medical History sheets kept at the Port Health Office, and set out in the affidavit. It appears that some seamen including two of the petitioners have been declared to be permanently unfit for sea service for high blood pressure and for diabetes from which they were suffering.

9. There can be no doubt that the system of medical examination by Government doctors is a salutary one and is eminently desirable in the interest of both the seamen and the shipowners but the system must be put on a sound footing having the sanction of law and well-defined rules should be framed laying down a reasonable standard of fitness and also for conducting the examination in a proper and reasonable manner providing safeguards against the abuse of the functions by the officers entrusted with the examination. Unless proper check and safeguards are provided, the seamen are left at the absolute mercy and vagaries of the officers concerned and they have no means of redress even if any wrong is inflicted on them.

10. The practice of endorsement of 'permanent unfitness' on the Certificates of Service as a result of medical examination does not appear to be consonant to justice. It is quite possible that the ground on which a particular seaman is declared to be permanently unfit at a particular time may cease to exist or may disappear, e. g., diabetes or blood pressure and it is extremely undesirable that his certificate should be branded for ever with an endorsement of permanent unfit-ness so as to destroy all his prospects for future employment in sea service.

11. It appears from the Medical Examination Card of the petitioner Ellahi Bux that at first the result of his medical examination was certified as 'passed in all respects' but subsequently this has been scored out and a rubber stamp endorsement of 'Permanently unfit for Sea Service' has been put in. It is quite clear, whatever may be the reasons behind it, that this seaman has not been dealt with fairly and squarely in the matter of his medical examination and the Rubber Stamp endorsement has not been made bona fide.

12. Certain technical objections have been raised by the learned counsel for the respondents. It is contended that the Government of India and other Labour Unions should have been made parties. The petitioners' ease is that they have been directly and personally affected by the acts complained of in the petition and so they have moved the Court for redress. I see no reason why all other Labour Unions or Seamen's Unions should be dragged into this proceeding unnecessarily. The petitioners had no definite facts or materials in their possession for implicating the Government of India in the acts complained of and so Government was not made a party. If the respondents genuinely thought that the presence of the Government was necessary and the Government ought to have been separately represented in the proceedings they should have asked for suitable directions from the Court. (See Halsbury, vol. 9, para. 1346, page 792).

13. It was further contended that the petitioners are not entitled to the reliefs asked for as the respondents do not purport to act under the sanction of any Statute, and reliance is placed on the decision of the Judicial Committee reported in Commissioner of Income-tax Bombay v. Bombay Trust Corporation Ltd., 63 I. A. 408.

14. The affidavit of respondent 2 makes it quite clear that respondent 2 is purporting to act under the colour of statutory duty. In para. 4 of his affidavit after referring to Section 8 and Section 6 (3), Merchant Shipping Act 1923, Mr. Bobb states that :

'I submit that for the purpose of superintending and facilitating the engagement and discharge of seamen I have right and authority to examine and certify the suitability of seamen for service.'

Mr. P. R. Dutt respondent 1 in para. 3 of his affidavit adopts the reasons for medical examination given in the affidavit of Mr. Bobb. Respondent 1 has, however, stated in his affidavit that he is acting under the direction and order of the Directorate of Health Service, New Delhi. The affidavit of Mr. Bobb also supports this fact, and copy of a telegram has been set out in the annexure to his affidavit. It may be that the Pre-entry Medical Examination is being held according to the direction and arrangement made by the Government of India, but it is clear that the respondents are under the impression that they have full right and authority by virtue of their offices to certify the suitability of seamen for service in the manner they are doing it.

15. Although respondent 2 purports to assume and claim the right and authority to have the seamen examined medically and to certify their suitability for service as incidental to his powers and duties appended to his statutory office as Shipping Master, respondent 1 asserts no statutory right and makes no such claim. But the fact remains that respondent 1 has set himself up with three other persons as Medical officers appointed by the Government for performance of the duties of examining medically the subjects of the Indian union who carry on the occupation of seamen. (See Endorsement on Medical Examination Card). Now there is authority for the proposition that if a wrongful claim is made to an office which does not exist or if a new office is set up an information in the nature of a quo warranto may lie. (See In re, Banwarilal Boy, 48 Cal. W. N. 766 at p. 805, right col. first para.) It also appeas from Halsbury, vol. 9, para. 1293, sub-para. (4) that :

'Where Government officials have been constituted agents for carrying out particular duties in relation to subjects whether by Boyal Charter, Statute, or Common law so that they are under a legal obligation towards such subjects, a Writ of Mandamus will lie for enforcements of such duties.'

So, if the respondents are carrying out inter alia the public duties of holding Pre-entry medical examination of seamen they are under a legal obligation to conduct the examination of seamen in a reasonable manner and to certify the result of their examination in a reasonable manner and not to put unreasonable impediments in the matter of their fundamental right of carrying on freely their occupation of seamen as citizens of the Indian Union. (See Article 19(1)(g) of the Constitution). The principles of natural justice also require that they should act in a reasonable manner. A point was raised in argument that it is not alleged in the petition that the petitioners are Citizens of India. It may be noted however that it is not also denied in the affidavits in opposition that they are not citizens of India. Dr. Sen Gupta states that if any denial had been made of that fact in the respondents' affidavits his clients would have placed proper materials before the Court to establish that the petitioners are citizens of India.

16. It was also contended by the learned counsel for the respondents that the petitioner does not allege demand of justice and refusal and so the application is not maintainable. It is true that the words 'demand of justice' and 'refusal' have not been used in the petition but there is no doubt that there are sufficient facts on record both in the petition and in the other affidavits to show that protests were made and discontinuance of the wrongful system was urged by the seamen but with no effect except incurring the displeasure of the officials and suffering harassment at their hands. (See paras. 11 and 12 of petition and the affidavit of Makleswar Rahaman affirmed on the 27th November 1950 para. 7). As observed by Ghose J. in In re Jatindra Mohan Sen Gupta, 40 Cal. L. J. 44 at pp 58 and 61;

'It is not indeed necessary that the word 'refuse' or any equivalent to it should be used but that there should be enough to show that the party withholds compliance and distinctly determines not to do what is required of him. Refusal may be inferred from conduct.'

17. It may be noted that Article 226 of the Constitution empowers the High Court to issue to any person or authority directions, orders or writs besides the writs specifically mentioned in the Article for enforcement of the fundamental rights as also for enforcement of other legal rights. The Court is vested with very wide powers and has a very wide discretion under the Article. Besides the specific writs mentioned the petition prays for other reliefs.

18. In my view this application should succeed to the extent that the respondents are restrained from making or causing to be made any endorsement of permanent unfitness on the Certificates of Service of seamen submitting to the Pre-entry Medical Examination held under their supervision and they are directed to cancel the endorsements of permanent unfitness made on the Certificates of Service of the petitioners. The Rule is made absolute to this extent. The petitioners are entitled to costs assessed at Rs. 200.


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