Heard both sides.
2. The petitioner was engaged as a Fitter in the second respondent company to attend to their ships. The petitioner being a Fitter was engaged for the purpose of lathe works, pipe works, welding, maintaining generators, main and auxiliary engines of the ship and also to assist the Engineers while doing major repairs in the vessel. The petitioner was also taken along with the sailing ships belonging to the second respondent company by getting a temporary certificate from the Mercantile Marine Department.
3. The petitioner initially moved the Labour Court at Tirunelveli with a claim petition under
Section 33-C(2) of the Industrial Disputes Act, 1947 as his accounts were not settled by the second respondent company. The Labour Court dismissed the claim petition on the ground of want of jurisdiction by its order dated 24.10.1997.
4. The claim of the petitioner is that he comes within the purview of the Merchant Shipping Act, 1958 and hence the said court has no jurisdiction to entertain the claim from the workman.
5. The petitioner raised a dispute with the management of the shipping company and sought for a reference of his dispute in terms of
Section 150 of the Merchant Shipping Act, 1958. Earlier, he filed a writ petition being W.P.16473/1998 seeking for a direction to refer the dispute to the Central Government. This Court did not grant any direction. On the contrary, a direction was issued to the Central Government to consider the dispute raised by the petitioner.
6. Even at that stage, the contesting second respondent took up the stand that the petitioner was not a "seaman" in terms of
Section 3(42) of the Merchant Shipping Act, 1958. This court did not give any finding on that issue vide its order dated 24.10.1997. The fifth respondent passed the impugned order dated 5.11.1999, which is as follows:-
"Your request does not come within the purview of the Merchant Shipping Act, 1958 as you are not a seaman and hence the question of referring your dispute to a Tribunal under Section 150 of the M.S.Act, 1958 does not arise."
7. The learned counsel for the petitioner submitted that when the petitioner went before the Labour Court, it dismissed his claim on the ground of want of jurisdiction. Therefore, he has no remedy in respect of his non-employment.
8. It is seen that under
Section 150 (1) of the Merchant Shipping Act in respect of a dispute between a Seamen and the owner of a ship, the only remedy available is for the Central Government to refer such dispute to a Tribunal under
Section 150(2) of the Merchant Shipping Act, 1958. But the prerequisite for coverage under
Section 150 will arise only when the petitioner establishes himself as a "seaman" under
Section 3(42).9. The definition of the term "Seamen" under
section 3(42) means every person (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship under this Act". Admittedly, the petitioner is a shore fitter and he can never be considered as a member of the crew of a ship though at times the petitioner might have been on board in a ship. Hence, the petitioner is not a seaman in terms of Merchant Shipping Act. The fifth respondent is correct in refusing to refer the dispute for adjudication by Special Tribunal.
10. It is not as if the petitioner does not have the benefit of the Industrial Disputes Act, 1947. The question of exclusion under
Section 150(9) of the Merchant Shipping Act will arise only when the petitioner is a seaman.
Section 3(42) of the Merchant Shipping Act will also arise only the petitioner is a seaman. The decision of the Labour Court, Tirunelveli has no bearing on the jurisdictional issue. If he was employed in a shipping company, the appropriate proceeding must go before the Central Government authorities. The fifth respondent is right in rejecting the request of the petitioner. Hence the writ petition is dismissed. No costs.
nvsri To
1. The Secretary, Union of India Mercantile Marine Department, Ministry of Surface Transport, Parliament Street, New Delhi.
2.The Principal Officer, Mercantile Marine Department, Madras District, Anchor Gate Building II Floor, Rajaji Salai, Post Bag No.5004 Chennai 600 001