K.P. Bhaskaran vs R. Sen and Co.

Jyotirmoyee Nag, J.—This Rule is directed against an order dated 2-9-77 passed in Misc. Case No. 1 of 1975 by the learned Metropolitan Magistrate, 3rd court, Calcutta, allowing in part the petitioner''s claim in respect of wages due to him and disallowing the rest.

The proceeding before the learned Magistrate was u/s 145(1) of the Merchant Shipping Act for recovery of wages from the opposite party M/s. R. Sen & Co. of 13, Camac Street, Calcutta-16. The petitioner who was originally appointed as a Fitter of the ship s. s. Bay Bengal and thereafter a Second Engineer on and from 3-10-64 by a letter of appointment dated 23-10-64 worked as such until 9-8-70 when he of his own accord left the services of the opposite party. The petitioner was assured by the opposite party that his wages would be settled immediately after his release but in spite of repeated reminders the opposite party having failed to meet his demand for a sum of Rs. 9685.13 P. which was due to him as wages he started the present proceeding before the learned Metropolitan Magistrate. The learned Metropolitan Magistrate after considering the evidence adduced on behalf of both parties allowed the application u/s 145(1) of the Act in part, i.e. a sum totalling Rs. 1538.13 P. on account of his wages for July 1970, and from 1-8-70 to 8-8-70, 2 days'' fixed O.T. and mess money from 11-6-70 to 8-8-70 were allowed. The rest of his claim was disallowed and hence the present revisional application before this Court.

Mr. Dilip Dutta appearing for the opposite party has taken a preliminary objection as to the maintainability of the present application before this Court. He has referred me to Section 145(1) of the Act which runs as follows : - "The Magistrate shall try the case in a summary way and the order made by the Magistrate in the matter shall be final." In this connection he has referred me to a case under the old Act of 1923, the relevant section being Section 63. This case is reported in 43 CWN 612 . There it has been held that no revisional application lies against an order passed by the learned Presidency Magistrate u/s 145(1) of the Merchant Shipping Act, 1958. Another case reported in Anthony Francis Noronha Vs. Gladstone Wyllie and Co. Ltd., also supports the decision reported in 43 CWN 612 . It is true that no revisional application lies as according to Section 145(1) of the Merchant Shipping Act, 1958 the order passed by the learned Presidency Magistrate is final and no other remedy is provided for in the Act itself. The present application is not u/s 401 but it is u/s 482 of the Code of Criminal Procedure. Mr. Dutta appearing for the opposite party has contended that the Court''s inherent power cannot be exercised under such circumstances. He has referred to a case reported in Amar Nath and Others Vs. State of Haryana and Another, . There it has been held that inherent power cannot be exercised where the Act specifically prohibits certain remedy as u/s 397(2), In the Cr. P.C. the prohibition u/s 397(2) is regarding interlocutory matters. No revision lies from such interlocutory matter. But even on this point the decision of the Supreme Court in this case Is that in "matters of moment" the court can interfere in exercise of its inherent power in order to do justice in appropriate cases. There is no other prohibition under the Cr. P.C. This is not an interlocutory matter and accordingly Section 397(2) is not applicable and it is well known that where there is no other remedy provided, the Court can exercise its inherent power to undo if any injustice is done.

Accordingly I hold that there is no bar to my exercising my inherent power u/s 482 Cr. P.C. to consider whether the order passed by the learned Metropolitan Magistrate is just and proper. Accordingly I overrule the contention of Mr. Dutta on his point,

Now coming to the merits of the case. I find that the Metropolitan Magistrate relied upon a circular No. RSC/HO/65/105 dated 12-3-65. This circular was sought to be proved by D. W. 2 who was the Personal Assistant in the opposite party Company. He stated that this circular was issued by one of the partners of the firm and he knew his signature. The original was fixed on the ship. He did not say that he was actually present when it was fixed on the ship and no responsible person from the ship has been produced to say that it was so fixed on the ship so that it may be said that the petitioner had knowledge about its contents. In fact the petitioner denied that such a circular was known to him and it is argued by Mr. Ghosh appearing for the petitioner that this circular detracts from his contract of appointment relating to his service conditions and unless it is proved that it was done with his consent or at any rate he acquiesced in the same the circular could not be taken notice of. The purport of the circular was to give notice that when the ship is laid ashore for a long time contrary to the service conditions of the petitioner, he would not be entitled to leave wages during the period of lay off. The learned Metropolitan Magistrate relied upon the circular to come to his finding that the petitioner was not entitled to any leave wages which he claimed for 11 months 21 days for the years 1964 to 1970. Mr. Ghosh has also attacked the order passed by the learned Metropolitan Magistrate that the petitioner was not entitled to the leave wages for the period claimed by him inasmuch as he could not produce his leave account It is not disputed that the petitioner was in service from 1964 to 1970 and as such he would be entitled to leave wages according to the terms and conditions of his service and, therefore, there was no necessity to produce any leave account as stated by the learned Magistrate. Regarding the article of agreement which every employee in a ship has to sign when it goes on voyage, Mr. Ghosh has argued that that has nothing to do with the service conditions of the petitioner. That agreement lapsed as soon as the ship comes on shore. He being a permanent employee he is governed by the letter of appointment and the terms and conditions made at that time. Accordingly Mr. Ghosh submits that the finding of the learned Magistrate Is wrong on two counts, first, that the circular upon which the learned Magistrate relied has not been proved in any event that the petitioner had notice of it has not been proved and, secondly, that the service conditions could not be changed by such a circular, he being a permanent employee and as such the order passed by the learned Magistrate disallowing the major portion of his claim is bad. In agreement with the submissions of Mr. Ghosh I hold that the petitioner is entitled to his leave wages and the amount that has been disallowed, i.e. a sum of Rs. 7147/- is due to him and may be allowed in his favour.

Accordingly I set aside that part of the order of the learned Metropolitan Magistrate disallowing the said sum and make the Rule absolute.