- (1.) In the writ petition, the petitioner, who was engaged on board M.V. Swaraj Dweep as Engine Serang and had continued his service till 16th September, 2008, when he was signed off, has prayed for a direction upon the respondents to abide by the NBB Agreement (for short the "Agreement") for the period 2006-2008, particularly Clause 21 thereof and to release disability compensation after adjusting the amount paid under Clause 25 relating to the grant of severance compensation. The facts as stated in the petition are that the petitioner while duty on board the ship at Chennai fell ill and was found unfit for duty. Subsequently, by letter dated 12th January, 2009, the Medical Officer of the authority at Chennai intimated the Deputy Director, the Andaman and Nicobar Administration Shipping Service that he had recovered and might be repatriated to his homeport for following up the matter further as at that point of time he was fit for travel by air. On the same day, the hospital, which had undertaken the surgery of the petitioner had certified that he was fit for normal duties. Thereafter, the Officer in Charge (Crew Cell), Directorate of Shipping Services, Andaman and Nicobar Administration by letter dated 2nd February, 2009 requested the Medical Superintendent, Medical Board, G.B. Pant Hospital, Port Blair, to assess the fitness of the petitioner after medical examination and request was made to submit a report. Pursuant thereto, the Medical Board in its report dated 5th February, 2009, advised that the petitioner might perform light duty, that is, off shore-duty for six months and thereafter his case might be reviewed. Subsequently, in response to a letter from the Directorate, the Medical Board reexamined the matter and by its report dated 2nd April, 2009, advised the authorities not to continue with the service of the petitioner at sea and since there was no provision for off shore duty in the Directorate with regard to the job performed, he was declared medically unfit. Consequently, by order dated 30th April, 2009, the Shipping Master, Port Blair cancelled the continuous discharge certificate issued in the name of the petitioner. Subsequently, on 9th July, 2009, the petitioner was granted severance compensation, amounting to Rs. 1,75,000/- under Clause 25 of the Agreement, and gratuity of Rs. 60,000/-, which was accepted by him under protest. Soon thereafter, the petitioner filed a representation praying for the grant of disability compensation under Clause 21 of the Agreement. Since it was not granted, aggrieved this writ petition was filed. After the writ petition was moved, directions were issued to file affidavits. Affidavits have since been filed and are on record. Mr. Hemraj Bahadur, learned advocate for the petitioner relying on the statements in the writ petition submitted that the respondents while disbursing the amount had misinterpreted Clause 21 of the Agreement and had acted in violation of the same. Submission was though the consulting doctor at Chennai had declared him fit for service, however, the Directorate had willfully and deliberately denied him employment. It is submitted that since the petitioner was declared fit and as on a later date, the Medical Board opined that the petitioner was unfit for service and as the respondent-Director was bound by the Agreement, 100% Disability Compensation in terms of Clause 21 of the Agreement should have been paid after deducting the amount paid under Clause 25. The learned advocate for the petitioner had relied on the dictionary meaning of "Severance pay". In this regard reliance has been placed on an order passed in W.P. No. 003 of 2007, (Abdul Shameem v. Lt. Governor and others).
(2.) Mr. Mandal, learned advocate appearing for the Administration, relying on the affidavit in opposition submitted that as the petitioner was found by the Medical Board to be unfit to work in the engine room which means that he was permanently unfit for sea service and as there is no provision for allotting offshore duty to a Serang, the action of the respondents in declaring the petitioner to be medically unfit and granting severance compensation is just and proper.
(3.) In order to adjudicate the issue whether the petitioner is entitled to 100% Disability Compensation, it is necessary to refer to Clauses 21 and 25 of the Agreement. Clause 21 is set out below:-- 21. Death & Disability Compensation: With effect from 1st April, 2006, the above compensation payable to Foreign Going/Home Trade/Offshore Ratings will be as follows: In case of a rating declared partially incapacitated whilst in employment above Disability Compensation shall be paid on proportionate basis. This Death & Disability Compensation shall not be paid if the death and/or disability has resulted due to the rating's own willful act. Clause 25 is extracted here under:-- 25. Severance Compensation: With effect from 1.4.2006, a Rating borne on a Company's Roster continuously for a period of not less than 5 years if declared permanently medically unfit for sea service by Company's Medical Officer. Severence Compensation is to be paid to such Rating as under: For Ratings below age of 55 years: @ 3 months' Basic Wages per year of articled service including applicable leave periods on Company's vessels and @ 1 1/2 months' Basic Wages per year of prospective service subject to a minimum compensation of Rs. 2,75,000/-. For Ratings between age of 55 to 58 years: @ 3 months' Basic Wages per year of prospective service subject to 4 months Basic Wages or Compensation of Rs. 1,75,000/- whichever is higher. For Ratings between age of 58 years: @ 3 months' Basic Wages per year of prospective service subject to 4 months Basic Wages or Compensation of Rs. 1,25,000/- whichever is higher. The above provision of compensation will not be applicable to a rating dealt with under the provisions Death & Disability Compensation.;