INDIA STEAM SHIP CO LTD Vs. NARAIN SINGH

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India for setting aside an order passed by Sri S. P. Chatterjee Chief Presidency Magistrate, Calcutta, directing recovery of a sum of Rs. 98.54 p. as wages together with a further sum of Rs. 138 as double pay for non-payment, under Section 145 (1) of me Merchant Shipping Act, 1958 at the instance of Narain Singh, Engine Room, 2nd Tindal, holding C. D. Book No. 19421. The opposite parry No. 1, Narain Singh worked on board the ship S. S. Indian Splendour owned by the petitioner from June 22nd, 1964 to 1st December, 1964 when he was discharged at the port of Calcutta. Narain Singh claimed a sum of Rs. 1105 as wages for 5 months 9 days besides leave pay for a sum of Rs. 34.50 and Rs. 138 for 10 days' double pay for non-payment, total claim being laid at Rs. 1277.50 p. He also prayed for return of his C. D. C. The claim was contested on behalf of petitioner Messrs India Steamship Company Ltd. They admitted that a sum of Rs. 98.54 was due after deduction of money taken by him from time to time during the voyage and then claimed that this was deposited with the shipping master, Calcutta under the provisions of the Merchants Shipping Act pending final decision regarding a fine imposed on the crew members by the customs authorities at Bombay. Their case appears to be that S. S. "Indian Splendour" arrived in Bombay from Continental Ports via Aden on November 3rd, 1964 and anchored in stream. A party of customs officers proceeded in stream shortly after the arrival of the ship to carry out a search of the vessel. As they were in the process of boarding the ship, they noticed a large number of packages, some of which were in card-board packing, being thrown overboard from the vessel through various portholes in the deck and the Engine Crews' quarters on board the vessel. While some of the packages so jettisoned which were still afloat were retrieved by the customs officer, others which had sunk into the sea could not be retrieved. The retrieved packages were taken on board the ship where they were opened. On examination by the customs officers in the presence of the Master and the chief officer of the vessel, these packages were found to contain 152 dozen 'Bonus' playing cards valued at Rs. 4,560 on import and at Rs. 10,944 at the local market rate. These were seized by the customs officers. Later, on search of S. S. "Indian Splendour" the customs officers received 144 cigarette lighters valued at Rs. 144 on import and at Rs. 576 at the local market rate from various places in the vessel. The owner-chip of the articles could not be established and these were also seized. Legal proceedings were then started by the Customs and by an order dated January 7, 1965, the Additional Collector of Customs confiscated the vessel with an option to pay in lieu of compensation a fine to the extent of Rs. 2,00,000 by the owners of the vessel and also imposed a personal penalty of Rs. 1,000 on the crew members under Section 112 of the Customs Act, 1962.

(2.) The petitioner, Messrs India Steamship Company Ltd. was of the view that the Articles of Agreement which govern the terms of service and conditions of employment of the crew including the petitioner Narain Singh contain a clause by which any fine imposed by the customs authority can be recovered by the Master from the crew. The shipping company therefore addressed to the Shipping Master, Calcutta while depositing the balance of wages of the entire crew amounting to Rs. 12,000 and odd, that the sum should be forfeited in part satisfaction of the financial loss incurred by the company as a result of wilful negligence and unlawful conduct on the part of the crew members. It claimed that it was entitled to deduct or retain the entire sum of wages under the terms of the agreement between the parties as also under the provisions of law.

(3.) The Shipping Master, Calcutta was also made a party and he filed a separate written statement supporting the above stand taken by the shipping company. He stated that a sum of Rs. 19.23 was the proportionate share of the personal penalty imposed by the Customs on the crew members and that a sum of Rs. 79.31 was due to the opposite party but the payment of this amount was withheld pending final decision of the matter by the Director General of Shipping, Bombay to whom the whole matter was referred.