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Sukharanjan Sarkar Vs. Mackinnon Mackenzie and Co. (Pvt.) Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ1446
AppellantSukharanjan Sarkar
RespondentMackinnon Mackenzie and Co. (Pvt.) Ltd. and anr.
Cases ReferredQuebec Railway Light Heat and Power Co. Ltd. v. Vendry
Excerpt:
- .....third court, calcutta, after hearing both the parties and considering the evidence before him the learned magistrate found that after the payment of rs. 3, 736.61p., on 18.5.72 i.e., during the pendency of the application, the petitioner was not entitled to the balance sum of rs. 2, 541.olp. (rs. 6, 277.65p., rs. 3, 736. 64p). the learned magistrate further found that the petitioner acted in violation of the terms of the agreement as contained in clause 17 of the article of agreement by leaving the ship of his own. facts as alleged which led to the culmination of the aforesaid proceeding are as follows:2. the opposite party no. 1/m/s. makinnon mackenzie & co. (pvt). ltd., are the agents of m/s. bank lane ltd., which are the owners of the ship m. v. 'oakbank.' on 8.10.70 the petitioner.....
Judgment:

A.N. Banerjee, J.

1. This Rule was obtained against an order dated 8-8-73 rejectingan application under Section 145 of Merchant Shipping Act. 1958. On 20-2-72 the petitioner filed an application before the Chief Presidency Magistrate claiming a total sum of Rs. 6, 277.65 P. as per paragraph 9 of the petition. The learned Chief Presidency Magistrate issued notices upon the opposite parties to show cause why they would not pay the aforesaid sum to the petitioner. On service of notices the opposite parties duly appeared and filed written objections to the claim of the petitioner. Thereafter on 30-5-72 the learned Chief Presidency Magistrate transferred the case to the Court of Presidency Magistrate Third Court, Calcutta, After hearing both the parties and considering the evidence before him the learned Magistrate found that after the payment of Rs. 3, 736.61p., on 18.5.72 i.e., during the pendency of the application, the petitioner was not entitled to the balance sum of Rs. 2, 541.olp. (Rs. 6, 277.65p., Rs. 3, 736. 64p). The learned Magistrate further found that the petitioner acted in violation of the terms of the agreement as contained in Clause 17 of the Article of Agreement by leaving the ship of his own. Facts as alleged which led to the culmination of the aforesaid proceeding are as follows:

2. The Opposite Party No. 1/M/s. Makinnon Mackenzie & Co. (Pvt). Ltd., are the agents of M/s. Bank Lane Ltd., which are the owners of the ship M. V. 'Oakbank.' On 8.10.70 the petitioner Sukharanjan Sarkar entered into an agreement for 12 months with the Oppsite Party No. 1 at Calcutta, in the presence of the Opposite Party No. 2 and boarded the ship M. V. 'Wave Bank' as Engine Room Sarang on a salary of Rs. 390 per month and other benefits. On 27-11-70 the services of the petitioner and others were transferred to another ship namely M. V. 'Oakbank' at Chalan under the same terms and condition. The petitioner thersafter in that ship went to several ports of South Africa and U.K. and ultimately came back to port of Bhavnogre, India, after a journey for about 16 months. The petitioner and others became tired and homesick on doing continuous work for 16 months, although the agreement was for 12 months only. On learning that the ship would sail for the ports of South Africa from Bhavnogre and would not arrive at the port of Calcutta, the petitioner and other crews demanded discharge at the said port and repatriation to Calcutta. Ultimately the Harbour Master at the instance of the local agent Messera Bakshi & Co. at Bhavnogre allowed them to get down from the ship with their gears and luggages but without their account of wages-sheets on the arrangement made by the said local agents of M/s. Bank Lane Ltd., the petitioner and others reached Calcutta by a train on 6-3-72. After reaching Calcutta they tried in vain to get their arrear wages. Being unable to get such wages the petitioner tiled an application under Section tion 145 of Indian Merchant Shipping Act. 1958 before the Chief Presidency Magistrate, Calcutta and made the allegations therein, as stated above.

3. In their show cause petition the opposite parties made out the case that the petitioner abandoned the ship in contravention of the terms of the agreement and that as such he was not entitled to be paid on account of wages any amount in addition to Rs. 3, 736.64p. which was already paid to him on 18-5-72.

4. We have already pointed out how the respective contention of the parties was dealt with by the learned Presidency Magistrate in dismissing the petitioner's claim for an amount more than Rs. 3, 736.64.p.

5. Mr. S.A.M. Habibullah, advocate appearing for the petitioner contended before us that the learned Presidency Magistrate had no jurisdiction to pass the impugned order and that in any event he gave no reason for disallowing the petitioner's claim in excess of the amount received by him during the pendency of the application. According to Mr. Habibullh, the learned Magistrate was wrong is coming to a finding that the petitioner had abandoned the ship in contravention of the terms of the agreement, Mr. S.D. Banerjee, Senior Advocate with Mr. Abani Mohan Chatterjee appeared for the Opposite Party No. 1 while Mr. S.M. Sanyal advocate appeared for the Opposite Party No. 2. Mr. S.G. Poddar advocate appeared for the State. The advocates of the opposite parties supported the findings of the learned Presidency Magistrate regarding the abandoament of the ship by the petitioner in contravention of the terms of the agreement.

6. It appears that in the Trial Court the learned advocate appearing for the Opposite Party No. 1 challenged the jurisdiction of the Presidency Magistrate to try the case but the learned Magistrate was of view that al though the application was filed before the Chief Presidency Magistrate the latter in exercise of his administrative power was competent to transfer the case to him for disposal. We are unable to agree with such contention of the learned Magistrate. Section 145 of Merchant Shipping Act. 1958 deals with the mode of recovery of wages of seaman or apprentice. It runs as follows:

Section 145(1)--'A seaman or apprentice or a person duly authorised on his behalf may as soon as any wages due to him become payable, apply to any Magistrate exercising jurisdiction in or near the place at which his service has terminated or at which he has been discharged or at which any person upon whom the claim is made is or resides and the Magistrate shall try the case in a summary way and the order made by the Magistrate in the matter shall be final.

7. Sub-section (2): An application of Sub-section (1) may also be made by any offices authorised by the Central Government in this behalf by general or special order. Merchant Shipping Act, 1958 is a special Act to foster the development and ensure the efficient maintenance of an Indian Merchantile Marine in a manner best suited to serve the National Interest. It has among other things provided for proper payment of wages of seamen and also mode of recovery of their wages. Section 115(1) of Merchant Shipping Act 1958, as has already been pointed out deals with the mode of recovery of wages. An application under the said section is a quasi civil action and the particular mode as prescribed in the said section has to be followed by a Magistrate dealing with such an application. The Magistrate is not authorised under the said Act to deal with the application in any manner other than the one provided for in the Act. If be does so, he acts without jurisdiction and the procedure adopted by him is not in accordance with the procedure established by law.

8. In the case of Taylor v. Taylor (1875) 1 Ph D 426 at p. 431 Lord Jessel laid down the principles 'when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted.... '

The said principles were approved of by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. King Emperor. 63 Ind App 372 : 1936-37 Cri L J 897 (PC).) Lord Roche delivering the judgment observed 'the rule which applied is a different and not lest well-recognised rule viz. that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.' The same principles were reiterated by the Supreme Court in the cases of State of Uttar Pradesh v. Singara Singh : [1964]4SCR485 (2) and also in Delhi Municipality'a case reported in : 1970CriLJ1 .

9. If we now turn once again to Section 145(1) of the Merchant Shipping Act, 1958, we will find that an application can be made to any Magistrate exercising jurisdiction in or near the place at which the service of the appellant seaman has terminated or at which he had been discharged or at which any person upon whom the claim is made or resides, Then the section says that on such application 'the Magistrate shall try the case in a summary way'. Thus the section authorises the filing of an application before any Magistrate having such jurisdiction, but it is that Magistrate alone who is competent to try the case in a summary way. In our view, the words 'the Magistrate' clearly indicate that it is that Magistrate before whom such an application had been made who is to try it. The plain meaning of words used in the statute must be given effect to as was observed by Lord Sumner in the case of Quebec Railway Light Heat and Power Co. Ltd. v. Vendry AIR 1920 P 0 181 at p 186 'effect must be given if possible to all the words used, for the legislature is deemed not to waste its words or to say anything in vain.' Application of such principle regarding the construction of words used under section 115(1) of the Mer. chant Shipping Act, 1958 leads us in no doubt that the competent Magistrate before whom an application is made must try the casa himself. Neither the said section nor anywhere in the Act there is any authority by which the Magistrate before whom an application is made, can transfer it to another Magistrate for disposal. This being the position we ace of the view that in the present case the learned Chief. Presidency Magistrate before whom the petition of the petitioner was filed was under the law himself obliged to hear and dispose of the application in accordance with the provision of law. He had no authority to transfer it for disposal to another Magistrate of co-ordinate jurisdiction. In doing so the Learned Chief Presidency Magistrate acted not in accordance with the procedure established by law. Similarly, the Learn-ed Presidency Magistrate who on receipt of such application on transfer disposed it of was not authorised under the law and in doing so, be also acted without jurisdiction and not in accordance with the procedure established by law. Thus, the entire proceeding before the learned Presidency Magistrate 3rd Court is void being without jurisdiction and the impugned order passed by him is of no avail. Accordingly, the case is to go back on remand to the learned Chief Presidency Magistrate for fresh disposal in accordance with the pro-visions of law.

10 The above finding would have been-sufficient for us to dispose of the pretend Rule without entering into the merits of the application. But since both the patties argued at some length on merits we feel constrained to observe that the learned Presidency Magistrate was not justified in recording a finding without assigning any reason that the petitioner bad been rightly paid and there were no further dues. Indeed, the application is to be tried in a summary way. But it does not mean that the final order passed by the Magistrate will not be 'a speaking order.' It becomes difficult for this Court in exercise of its revisional jurisdiction to appreciate the finding of the Magistrate unless reasons are given therefor. Since the case is going back on remand we do not propose to dilate any more on the above point.

11. In the result, the Rule is made absolute. The impugned order dated 8-8-73 passed by Shri R. Samaddar, Presidency Magistrate. Calcutta is hereby set aside and the case is sent back to the learned Chief Presidency Magistrate, Calcutta for fresh disposal in accordance with the provision of law. Let the records go-down immediately,

N.C. Talukdar, J.

12. I agree.


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