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Judgment
K. Chandru, J.—Heard both sides.
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.
The petitioner initially moved the Labour Court at Tirunelveli with a claim petition u/s 33C(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.
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.
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.
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 u/s 150 of the M.S. Act, 1958 does not arise.
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.
It is seen that u/s 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 u/s 150(2) of the Merchant Shipping Act, 1958. But the prerequisite for
coverage u/s 150 will arise only when the petitioner establishes himself as a ""seaman"" u/s 3(42).
The definition of the term ""Seamen"" u/s 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.
It is not as if the petitioner does not have the benefit of the Industrial Disputes Act, 1947. The question of exclusion u/s 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.