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Anthony Francis Noronha Vs. Gladstone Wyllie and Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1941Cal448
AppellantAnthony Francis Noronha
RespondentGladstone Wyllie and Co. Ltd.
Excerpt:
- .....the captain to replace them and repatriate them to india. the captain refused to do this, so the crew refused to work while the ship was in sydney and left the ship. after some time they were sent back to india in another ship and reached calcutta on 31st december 1939. neither the shipping office nor the agents, gladstone wyllie would pay their wages. hence, petitioner's application to the magistrate under section 63, merchant shipping act. the defence of the agents was in substance that the petitioner had forfeited all claim to wages by reason of his conduct in refusing to obey orders and in leaving the ship. the learned magistrate found that the ship's crew went on strike in sydney and demanded to be repatriated to calcutta. they refused an offer of double wages to work the ship to.....
Judgment:

Bartley, J.

1. This rule was issued on the Chief Presidency Magistrate to show cause why an order made by him under Section 63, Merchant Shipping Act, should not be set aside. One A. F. Noronha signed on as a cook in the City Line S. S. City of Canberra. His case was that while in America he heard of the outbreak of war and when the ship reached Australia the entire crew made repeated representations to the Captain to replace them and repatriate them to India. The Captain refused to do this, so the crew refused to work while the ship was in Sydney and left the ship. After some time they were sent back to India in another ship and reached Calcutta on 31st December 1939. Neither the Shipping Office nor the Agents, Gladstone Wyllie would pay their wages. Hence, petitioner's application to the Magistrate under Section 63, Merchant Shipping Act. The defence of the Agents was in substance that the petitioner had forfeited all claim to wages by reason of his conduct in refusing to obey orders and in leaving the ship. The learned Magistrate found that the ship's crew went on strike in Sydney and demanded to be repatriated to Calcutta. They refused an offer of double wages to work the ship to Colombo whence they would be sent to India. He further found that their conduct in rescinding their contracts was not reasonable and that the applicant was not entitled to recover the wages earned by him up to and after the date of the strike in Sydney. The main contention on behalf of the petitioner has been that the Magistrate was not entitled to come to such a finding without going into evidence and giving the petitioner an opportunity to show in a formal trial that his refusal to work was reasonable and that he could not be made to forfeit his wages. Two questions arise in the case, first whether the order of the Magistrate can be interfered with in revision under Section 439, Criminal P.C., secondly whether on the merits such interference is Justified.

2. The petitioner sued under Section 63 of the Act which provides that a seaman or his agent may sue for wages due to him in a summary manner before a Magistrate exercising jurisdiction and the order made by the Magistrate shall be final. The Act does not specify the form which such summary proceedings should take and it provides merely an alternative method of recovering wages due to a seaman which if he chooses he may adopt. Section 49 of the Act provides that on agreement between the parties a Shipping Master can decide any such question and that his award on any question submitted to him shall be conclusive. Section 64 indicates the normal procedure for the recovery of wages not exceeding Rs. 500 which is by suit in a Small Cause Court. The material exception is when a Magistrate having jurisdiction apparently under Section 63 refers the claim to a Court. In the present case this was not done by the Magistrate. The wording of Section 63 itself indicates that it is an alternative procedure exercised at the option of a claimant. He may sue in a summary manner instead of having recourse either to the Shipping Master or the Court of Small Causes but if he does so, the decision of the Magistrate shall be final. As previously noted no form of summary procedure is prescribed in the Act and in this case the Magistrate decided the matter on the pleadings of the parties after hearing argument and without objection at the time of hearing. It should further be noted that under Section 110 of the Act the Magistrate acting under S.63 could determine the question of forfeiture or deduction from the wages of a seaman. In the circumstances and in view of the scope and procedure of the Act itself we are constrained to hold that we cannot interfere in revision with the order made by the Magistrate. We may add that on the merits we should also decline to interfere on the findings arrived at by the Court below that the petitioner was not entitled to recover his wages. The rule is accordingly discharged.

Roxburgh, J.

3. I agree.


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