STATE Vs. ARDESHIR B. CURSETJI AND SONS, LTD

JUDGEMENT

(1.) THIS is an appeal by the State of Bombay from a judgment of the learned Chief Presidency Magistrate, Bombay, acquitting the respondent company who were charged with having committed an offence under regulation 5 read with regulations 50 and 51 of the Indian Dock Labourers Regulations, 1948, framed under Section 5 of the Indian Dock Labourers Act, 1934.

(2.) A short but an interesting question which has arisen in this ease is one of construction of regulations 50 and 51 of the Indian Dock Labourers Regulations, 1948, and the point which requires our decision is whether the use of a hatch, which is covered with wooden boards, for the purpose of collecting and arranging the cargo thereon, before the cargo is hoisted by the lifting machinery for being discharged out of the ship, or for the purpose of lowering the cargo thereon, after the cargo is brought into the ship by the lifting machinery for being loaded in the hold, is a 'use for the passage of goods or for trimming' within the meaning of regulation 50, sub -regulation (1). Regulation 50, sub -regulation (1) provides: Hatches not in use. -(1) If any hatch of a hold accessible to any worker and exceeding five feet in depth, measured from the level of the deck in which the hatch is situated to the bottom of the hold, is not in use for the passage of goods, coal or other material, or for trimming, and the coamings are less than two feet six inches in height, such hatch shall either be fenced to a height of three feet or be securely covered and similar measures shall be taken, when necessary to protect all other openings in a deck which might be dangerous to the workers:Provided that this requirement shall not apply (i) to vessels not exceeding 200 tons net registered tonnage which have only one hatchway, and (ii) to any vessel during mealtimes or other short interruptions of work during the period of employment. Regulation 51 lays down: Handling at intermediate decks. -No cargo shall be loaded or unloaded by a fall or sling at any intermediate deck unless either the hatch at that deck is securely covered or a secure landing platform of a width not less than that of one section of hatch coverings has been placed across it:Provided that this regulation shall not apply to any process of unloading the whole of which will be completed within a period of half an hour.

(3.) THE learned Chief Presidency Magistrate has taken the view that the respondent company had taken all. reasonable precautions through their head foreman to see that nobody suffered from an injury as a result of the insecure condition of the hatch -covers on the shelter deck. He has further held that regulation 50, sub -regulation (1), was not applicable to the circumstances of this case. In his view, the two regulations, namely regulation 50 and regulation 51, are 'directed towards two different sets of circumstances', and they 'would not both apply to the same set of circumstances.' The learned Magistrate has observed: It may be mentioned that regulation 50 has a heading 'Hatches not in use'; whilst regulation 51 specifically deals with the case which we have in hand, viz. 'Handling at intermediate decks. He has then gone on to say : When an operation is going on at an intermediate deck, which specifically falls under regulation 51, it cannot, in my opinion, be said that that hatch at that deck is 'not in use'. The hatch is in fact in use, because the cargo in the wings of the intermediate deck has got to be pushed out, or brought over to the square of that hatch and then unloaded by a sling operated by the ship's derricks or the shore -cranes. It is thus clear that according to the learned Chief Presidency Magistrate, the expression 'the passage of goods', which is found in sub -regulation (1) of regulation 50, does not necessarily mean, or is not confined to, the passing of the goods vertically through the opening of the hatch. In his view, even if the goods are 'to be pushed, shoved, rolled over or slided horizontally along the square of the hatch' which is covered with planks, the hatch could be said to be used for the passage of goods or for trimming. While expressing his opinion that the square of the hatch on the shelter deck in this particular ease was used not only for the passage of goods but was also used for trimming, the learned Magistrate has said: The word 'trim' is denned in the Shorter Oxford Dictionary as 'to stow or to arrange (coal or cargo) in the hold of a ship, or to carry it to the hatches when discharging'. When cargo is being carried from the wings to the square of the hatch for discharging, the hatch is 'used' for trimming.