SUKHARANJAN SARKAR Vs. MACKINNON MACKENZIE CO

JUDGEMENT

(1.) THIS Rule was obtained against an order dated 8-8-73 rejecting an application under section 145 of Merchant Shipping Act, 1958. On 20-2-72 the petitioner filed an application before the Chief Presidency Magistrate claiming a total sum of rs. 6,277. 65 P. as per paragraph 9 of the petition. The learned Chief Presidency Magistrate issued notices upon the opposite parties to show cause why they would not pay the aforesaid sum to the petitioner. On service of notices the opposite parties duly appeared and filed written objections to the claim of the petitioner. Thereafter on 30-5-72 the learned Chief Presidency Magistrate transferred the case to the Court of presidency Magistrate Third Court, Calcutta. After hearing both the parties and considering the evidence before him the Learned Magistrate found that after the payment of Rs. 3,736. 04 p. an 18-5-72 i. e. during the pendency of the application, the petitioner was not entitled to the balance sum of rs. 2,541. 01p. (Rs. 6,277. 65p. Rs. 3,736. 64p. ). The learned Magistrate further found that the petitioner acted in violation of the terms of the agreement as contained in Clause 17 of the Article of agreement by leaving the ship of his own. Facts as alleged which led to the culmination of the aforesaid proceeding are as follows :-

(2.) THE opposite party No. 1 M/s, mackinnon Mackenzie and Co. (Pvt.) Ltd. are the agents of M/s. Bank Line Ltd. which are the owners of the ships M. V. "oakbank". On 8-10-70 the petitioner sukharanjan Sarkar entered into an agreement for 12 months with the opposite party No. 1 at Calcutta, in the presence of the opposite Party No. 2 and boarded the ship M. V. "wave Bank" as engine Room Sarang on a salary of rs. 390/- per month and other benefits. On 27-11-70 the services of the petitioner and others were transferred to another ship namely M. V. "oakbank" at Chalna under the same terms and conditions. The petitioner thereafter in that ship went to several ports of south Africa and U. K. and ultimately came back to port of Bhavnogre, India, after a journey for about 16 months. The petitioner and others became tired end homesick on doing continuous work for 16 months, although the agreement was for 12 months only. On learning that the ship would sail for the ports of South Africa from Bhavnogre and would not arrive at the port of Calcutta, the petitioner and other crews demanded discharge at the said port and repatriation to Calcutta. Ultimately the Harbour Master at the instance of the local agent Messrs Bakshi and Co. at bhavnogre allowed them to get down from the ship with their gears and lug gages but without their account of wages-sheets on the arrangement made by the said local agents of M/s. Bank line Ltd. , the petitioner and others reached Calcutta by a train on 6-3-72. After reaching Calcutta they tried in vain to get their arrear wages Being unable to get such wages the petitioner filed an application under section 145 of Indian Merchant Shipping Act 1958 before the Chief Presidency Magistrate, Calcutta and made the allegations therein as stated above.

(3.) IN their show cause petition the opposite parties made out the case that the petitioner abandoned the ship in contravention of the terms of the agreement and that as such he was not entitled to be paid on account of wages any amount in addition to Rs. 3,736. 64p. which was already paid to him on 18-5-72.