# [1968] 2 S.C.R. 306

- **Citation:** [1968] 2 S.C.R. 306
- **Court:** Supreme Court of India
- **Decided:** 1967-11-21
- **Case number:** Criminal Appeal No. 19 of 1965
- **Bench:** M. Hidayatullah, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-2-s-c-r-306-4326
- **Pages:** 5

## Headnote

Merchant Shipping Act, 1958, ss. 191(1) (a) and (b),
194(b) and
( e), and 436--Seamen entering into agreement with shipping company to
navigat,e its ship for specified period-dispute arisinR while ship in dock
on a voyage as to amoun1t of bazar money payable to seamen-on nonpay1nent of a1nount clain1ed se(unen leaving ship which could not therefore
sail-1vhether seamen liable for desertion.-Reasonable cause for leaving
ship-when relevant.
The ten appellants were ratings who had entered into an agreement
\Vith a shipping company in Cochin to navigate one of its ships bet\v~en
December 11, 1963 and Juno 10, 1964.
During this period, after they
had performed some voyages and while the ship was berthed in Calcutta
port, a. dispute arose between the appellants and the Company as to the
payment of bazar money (victualling charges) which the ratings were
allowed according to a custom obtaining in
merchant shipping.
The
appellants claimed Re. 1 per day while the Company normally paid only
0.6'.C P. per day, The dispute was referred to the Shipping Master, Calcutta,
\.\'hereupon rneejings took place l::·~tween
representatives
of
the
Company and the appellants before the Shipping Master and an agreement
was reached according to which the Company promised to pay the amount
claimed.
However, it was not clear whether this payment was to be
made before the commencement of the next voyage or on the termination of the agreement.
As the appellants were in fact not paid before
the commencement of the voyage, upon the instigation of certain Jabour
leaders they left the vessel in a body and, as a result, the ship could not
leave port at the appointed time of sailing.
The appellants were thereafter prosecuted for deserting the ship and were convicted under s. 19 I
(1 )(al and (bl ands. 194(b) and (<e) read withs. 436 of the Merchant
Shipping Act. 1958.
Their revision applications to the High Court were
summarily rejected.
In the appeal to this Court by special leave, it was contended on behalf of the appellants (a) that there was no desertion on their part, and
(b) that even if they be held to 'have left the ship, they were protected
by the fact that there was reasonable cause for absenting themselves at
the time of the sailing of the ship.
HELD : dismissing the appeal :
( il The gist of desertion is the existence of animus not to return to
the ship or, in other words, to go against the agreements under which the
en1ployn1ent of seamen for Sf'a vovagr<; generally take olace.
The 'vav
the appellants had acted clearly showed that they were using the weapon
of strike with a view to force the issue with their employers and were
not intending to return to the vessel unless their demandiS \Vere acceded
to immediately. It was therefore Je~itimate to infer that they were brealcing the agreement with the company 'Mhich was to keep the ship in voyage up 10 June 10, 1964, and this wa< rendered impossible by all
the
nppellants
abscntin~ themselves.
Their action
therefore
amounted
to
desertion. r309 B. F-G]
.A
•
B
c
D
E
F
G
H
A
B
c
D
IBRAHIM v. w. BENGAL (Hidayatullah, J.)
307
Moore v. Canddian Pacific Steamship Co., [1945] 1 All B.R.
128;
The West-morland, {1841) 1 Wm. Rob 216; referred to.
(ii), Section 191(1) is in two parts.
The first part deals wi:h only
desertion and therefore, if desertion was proved, the penalty which the
law provides under the .A.ct was duly incurred. There is no excuse against
desertion because reasonable cause which is indicated in the sam~ section
is included in cl. (b) and not in cl. (a). In the prosent case there was
not that sufficient cause even for the purpose of cl. (b) of s. 191(1). Tue
dispute was already . before tbe Shipping Master,
meetings hwl taken
place and minutes had been rec·.:ir<led.
Th~ log book ..:it the shipping
Company and other records would clearly show the amount of money
due to the appella'Ots.
The settlement of the claim could well have waited till the completion of the voyage and there was machinery in

## Text

306
IBRAHIM AND ORS.
, ..
STATE OF WEST .BENGAL AND ANR.
November 21, 1967
(M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JJ.]
Merchant Shipping Act, 1958, ss. 191(1) (a) and (b),
194(b) and
( e), and 436--Seamen entering into agreement with shipping company to
navigat,e its ship for specified period-dispute arisinR while ship in dock
on a voyage as to amoun1t of bazar money payable to seamen-on nonpay1nent of a1nount clain1ed se(unen leaving ship which could not therefore
sail-1vhether seamen liable for desertion.-Reasonable cause for leaving
ship-when relevant.
The ten appellants were ratings who had entered into an agreement
\Vith a shipping company in Cochin to navigate one of its ships bet\v~en
December 11, 1963 and Juno 10, 1964.
During this period, after they
had performed some voyages and while the ship was berthed in Calcutta
port, a. dispute arose between the appellants and the Company as to the
payment of bazar money (victualling charges) which the ratings were
allowed according to a custom obtaining in
merchant shipping.
The
appellants claimed Re. 1 per day while the Company normally paid only
0.6'.C P. per day, The dispute was referred to the Shipping Master, Calcutta,
\.\'hereupon rneejings took place l::·~tween
representatives
of
the
Company and the appellants before the Shipping Master and an agreement
was reached according to which the Company promised to pay the amount
claimed.
However, it was not clear whether this payment was to be
made before the commencement of the next voyage or on the termination of the agreement.
As the appellants were in fact not paid before
the commencement of the voyage, upon the instigation of certain Jabour
leaders they left the vessel in a body and, as a result, the ship could not
leave port at the appointed time of sailing.
The appellants were thereafter prosecuted for deserting the ship and were convicted under s. 19 I
(1 )(al and (bl ands. 194(b) and (<e) read withs. 436 of the Merchant
Shipping Act. 1958.
Their revision applications to the High Court were
summarily rejected.
In the appeal to this Court by special leave, it was contended on behalf of the appellants (a) that there was no desertion on their part, and
(b) that even if they be held to 'have left the ship, they were protected
by the fact that there was reasonable cause for absenting themselves at
the time of the sailing of the ship.
HELD : dismissing the appeal :
( il The gist of desertion is the existence of animus not to return to
the ship or, in other words, to go against the agreements under which the
en1ployn1ent of seamen for Sf'a vovagr<; generally take olace.
The 'vav
the appellants had acted clearly showed that they were using the weapon
of strike with a view to force the issue with their employers and were
not intending to return to the vessel unless their demandiS \Vere acceded
to immediately. It was therefore Je~itimate to infer that they were brealcing the agreement with the company 'Mhich was to keep the ship in voyage up 10 June 10, 1964, and this wa< rendered impossible by all
the
nppellants
abscntin~ themselves.
Their action
therefore
amounted
to
desertion. r309 B. F-G]
.A
•
B
c
D
E
F
G
H
A
B
c
D
IBRAHIM v. w. BENGAL (Hidayatullah, J.)
307
Moore v. Canddian Pacific Steamship Co., [1945] 1 All B.R.
128;
The West-morland, {1841) 1 Wm. Rob 216; referred to.
(ii), Section 191(1) is in two parts.
The first part deals wi:h only
desertion and therefore, if desertion was proved, the penalty which the
law provides under the .A.ct was duly incurred. There is no excuse against
desertion because reasonable cause which is indicated in the sam~ section
is included in cl. (b) and not in cl. (a). In the prosent case there was
not that sufficient cause even for the purpose of cl. (b) of s. 191(1). Tue
dispute was already . before tbe Shipping Master,
meetings hwl taken
place and minutes had been rec·.:ir<led.
Th~ log book ..:it the shipping
Company and other records would clearly show the amount of money
due to the appella'Ots.
The settlement of the claim could well have waited till the completion of the voyage and there was machinery in law for
the enforcement of a demand. [309 H; 310 D-FJ
The law has chosen to regard the duties of seamen as of paramount
importance and has therefore, in addition to the ordinary liabilities which
arise under the general law, added a penalty of imprisonment for absence
from duty without reasonable cause and has also provided for forfeiture
of wages and the effects left on board. This indicates that the policy of
the law is that the crew must perform their duties under such agreements
as they execute with the shipping company on pain of being found guHty
and punished if they cannot make out that Ibey had sufficient
and
reasonable cause for what may otherwise be regarded as dereliction of
duty. [310 C-0]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
19 of 1965.
Appeal by special leave from the judgment and order dated
E
Januar'J 11. 1965 of the ·Calcutta High Court in Criminal Revision
No. 46 of 1965.
F
G
H
A. K. Sen and S. c., Majumdar, for the appellants.
P. K. Chakravarti, G. S. Chatterjee for P. K. Bo.ve, for respondent No. 1.
K. B. Mehta and Indu Soni, for re~pondent No. 2.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal on behalf of ten appellants
who were charged for deserting their ship "S.S. Nilgiri" on or
about April 22. 1964.
They were convicted under ss. 191(1)(a)
and (b) and 194(b) and (e) read withs. 436 of the Merchant
Shipping Act, 1958.
Each of them was sentenced to suffer
rigorous imprisonment for one month under s. 19l(l)(a) read
with s. 436 of the Act and also to forfeiture of 1/25 of the wages
due.
Under s. 194(e) they were fined Rs. 20/- each but no
separate sentences were passed against them under s. 191 (1 )(b)
and s. 194(b) of the Act. Their application for revision in the
High Court of Calcutta was summarily rejected.
They now
appeal by special leave granted by this Court.
'
308
SUPREME COURT REPORTS
[ i 968 J 2 S.C.R.
The facts of the case arc that the appellants had entered into
a half-yearly agreement with the Eastern Steamship Ltd. to navigate "S.S. Nilgiri" (Captain Hunter) between December 11, 1'163
and June 10, 1964.
The terms of their agreement are exhibited
as Ex. I in the case.
It appears that they had performed some
voyages on board "S.S. Nilgiri" and on the day on which they are
alleged to have deserted the ship, it had berthed in the Calcutta
Port.
According to the custom obtaining in merchant shipping
the ratings were allowed some bazar money (victualling charges).
The appellants claim that they should have been paid Re. 1 /- per
day (the Company was paying only .62 paise per day).
WJ:~n
the ship was in dock, the appellanf.s put in this demand on
::! I /22-4-1964, and the matter was refarred to the Shipping Master
Calcutta.
Meetings between the representatives of the Shipping
Company anq the seamen took place before the Shipping Master.
Minutes are available in the case.
Although oral testimony on
behalf of the Company seems to give a lie to some parts of the
minutes, it is obvious that some sort of an agreement took place
under which the Company promised to pay these men the amount
though it is not clear whether the amount was ~o be paid before
the commencement of the next voyage or on the termination of the
agreement.
Oral testimony on behalf of the company inclines to
the latter.
But there is also the evidence that the Company aad
undertaken to pay the seamen the additional amount of 38 paise
per person per day before the voyage was resumed.
Be that as it
may, it appears that labour leaders at this stage began to take a
hand in the dispute and prompted the appellants to leave the
vessel in a body.
As a result the ship could not leave the port
because the ratings had abandoned it and were not available at
the appointed time of sailing.
The Presidency Magistrate before whom the appellants were
tried for the offences already mentioned, held that their conduct
amounted to desertion and that a' they had no rea,onable excuse
for leaving their ship. they were guilty of the offences charged. He
accordingly sentenced them as already stated.
The H;gh Co1trt
summarily rejected their revision.
In this appeal it is contended (a) that there was no desertion
on the part of the appellants, and (b) even if they be held to have
left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of
the ship.
The matter is governed by the Merchant Shipping Act, 1958.
It does not define what is meant by desertion: but in Moore v.
Canadian Pacific S1eamship Co.(') Mr. Jusricc Lynskey gave a
<Il )1945] I All E.R. 128.
A
B
c
D
E
F
G
H
IBRAHIM V. w. BENGAL (Hidayatul/ah. J.)
309
A
definition of 'desertion' from an early case (The West-morland)(')
as follows :-
B
c
D
E
F
G
H
"I think a deserter is a man who leaves his ship and
docs not return to it with no other purpose than to
break his agreement."
The gist of desertion therefore is the existence of an .animus not
to return to the ship or, in other words, to go against the agreements under which the employment of seamen for sea voyages
generally takes place.
In our opinion, this definition may be ta.ken
as a workable proposition for application to the present case.
There is nothing in this case to show that after the seamen left
the vessel, they intended to return to it.
In fact they went and
later took their baggage, because under the Jaw penalty includes
forfeiture of the effects left 'on board.
The whole tenor of their
conduct, particularly the intervention of labour leaders is indicative of the fact that they left the ship with no intention to return
to it unless their demands were met forthwith even though before
the Master the Company had stated that the matter would be
finally considered at the end of the voyage and the tem1ination of
the agreement.
There are provisions in the Act under which the
seamen have got rights to enforce payment against their ,employers
by taking recourse to a Magistrate. who in summary proceedings
may decide what amount is due to them and order its p<tyment.
It is true that this action could only be taken at Coch;n whc,re the
registered office of the Company is situate, but in any event the
crew were required under the agreement to take back the vessel to
Cochin and could well have waited· till they returned to the home
port and then made the demand before the appropriate authority.
The way they have acted clearly shows that they were using the
weapon of strike with a view to force the issue with their employers
and were not intending to return to the vessel unless their demands
were acceded to immediately.
In these circumstances, it is legitimate to infer that they were breaking the agreement with the
company which was to keep the ship in voyage up to June 10,
1964 which could not take place if all the crew remained on shore
and the vessel could not weigh anchor and leave the port without
ratings. We are, therefore, satisfied that this was a case of desertion and that it fell within the definition of the term as stated by
us.
Section 191 ( 1 ) is in two parts.
The first part deals with only
desertion and therefore, if desertion was proved, the penalty which
the Jaw provides under the Act was duly incurred.. There is no
excuse against desertion because reasonable cause which is indicated in the. same section is included in cl. (b) and not in cl. (a).
(ll (1841) I Wm. Rob. 216.
310
>UPREML COURT REPORTS
(1968] 2 S.C.R.
But even if one "ere to view their conduct as falling under (b)
and not (a) as the courts have held, we see no excuse on their
pa11.
The operation of shipping rC"!uires constant attention from
its crew and it is not possihle for a shipping company or a vessel
to ply the ship if the crew at every port make demands and leave
the ship in a body.
Such conduct would be subversive of all di>-
cipline on board.
It is not so long ago that seamen were put in
stocks and chains and the leaders· were •nadc to walk the plank or
hung from tile yard-arm or at the least were flogged. The law has
made the life of seamen a little more liberal but has chosen to reg:ird their duties as of paramount importance and has therefore.
in addition to the ordinary liabilities which arise under the general
la". added a penalty of imprisonment for absence from duty withoui reasonable cause and has also provided for forfeiture of wages
and the effects left on board.
This indicates that the policy of
the law is that the crew must perform their duties under such
agreements as they execute with the shipping company on pain ot
being found guilty and punished if they cannot make out that they
h0tJ suflicient ~md reasonable cause for what may otherwise be
rc~ardcd as dereliction of duty.
Jn our opinion in the present
c~"c there was 00t that sufficient cause even for purpose of cl. (b)
of s. 1911. I).
After all the dispute was before
the
Shipping
l'vt"tcr. me~tings had t;•kcn place and minutes had been recorded.
The log book of the Shippi11g Company would show the different
vJyage' and their duration and the muster roll would show the
attendance or 1he crew.
It was a matter of mere μritlunetical
calculation between Re. l / - per day and .62 paise per day to find
out how much money was due to each of the ratings.
This would
not amount to more than Rs. 30/- or Rs. 40/- per person and this
cbim might well have waited till the completion of the voyage.
because the re_cord of the entire proceedings was kept in the
Shipping Master's vfficc a;id there was machinery in law for the
enforcement of a demand.
In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a
body in a manner which can only be described as desertion and
therefore their offence was fully established.
We see no reason
therefore to interfere in this appeal which fails and "will be disn1i_..;sed.
R.K.P.S.
Appeal dismissed.
A
B
c
J)
F