1988 PLP 1761 (CLC)

‑‑‑S. 43‑B‑‑Constitution of Pakistan (1973), Art. 199‑‑Petitioner, a seaman charged for misconduct and shipping master without imposing any of penalties prescribed under S.43‑B(1) of the Act, directing insertion of a prejudicial endorsement in his 'continuous discharge certificate'‑‑Appeal of petitioner against competence of shipping master to pass such an order not entertained by Government of Pakistan‑ Impugned order having been passed under S.43‑B(1) of the Act, appeal of petitioner, being a person aggrieved, before Government of Pakistan, held, was fully competent and was wrongly refused to be entertained‑‑Government of Pakistan directed to entertain and dispose of petitioner's appeal on merits in accordance with law within a period of three months. Kazi Faez Isa for Petitioner. S.M. Noorul Hasan for Respondents. Date of hearing: 17th February, 1988. SAEEDUZZAMAN SIDDIQUI, J.‑‑The petitioner has filed this Constitution petition to challenge the order, dated 4th November, 1987 passed by the Shipping Master, Karachi, and that of Ministry of Communication, dated 1‑1-1987. The following facts may be stated here which are relevant for the disposal of the above petition. The petitioner who is a Seaman by profession was engaged by the owner of the ship m.v. Saint Dimitrios on 21‑10‑1985 under a written agreement as an Assistant Purser. The petitioner joined the crew of the ship on 24‑10‑1985 at Houston (U.S.A.). during the voyage of the ship when it called at an Italian Port Venice, the International Transport Federation (I.T.F.) authorities visited the ship and detected that the wages paid by the Master of the ship to the petitioner were not in accordance with minimum wages fixed by the I.T.F. They accordingly directed the Master of the ship to make payment to the petitioner in accordance with the schedule fixed by the I.T.F. This fact was noticed by the Shipping Master, Karachi, and at the time of discharge of the petitioner he was issued a show‑cause notice to show cause as to why he approached the foreign organization in Italy for higher wages and thus contravened the terms and conditions of the employment and service; and secondly the above action of the petitioner not only prejudiced the employer by breach of agreement which amounted to misconduct /misbehaviour but it also reduced the employment prospects of Pakistani seamen for fear of such coercion through outside agency. The explanation submitted by the petitioner to the above show‑cause notice was not found satisfactory and accordingly by order, dated 4‑11‑1986 the Shipping Master, Karachi, though did not impose any of the penalties prescribed under section 43‑B(1) of the Act, directed that following endorsement be made in the Continuous Discharge Certificate (C . D. C .) to be issued to the petitioner. "Approached I.T.F. at Venice for higher wages etc. but withdrew the case from I.T.F. on intervention of Shipping Master, Karachi, but after obtaining surety for wages etc. higher than those agreed earlier in Pakistan." It may be mentioned here that in paragraph 5 of the above order of Shipping Master, dated 4‑11‑1986 it was mentioned that within 90 days of the receipt of this order an appeal could be preferred to the Appellate Board, Government of Pakistan, Ministry of Communication (Ports and Shipping Wing), Karachi. The petitioner in accordance with the above endorsement filed an appeal before the Authority mentioned in paragraph 5 of the impugned order, dated 4‑11‑1986. The Appellate Authority, however, did not entertain the appeal preferred by the petitioner on the ground that no such appeal was competent as the Continuous Discharge Certificate (C.D.C.) issued to the petitioner has not been cancelled. Learned counsel for the petitioner has raised two‑fold contention before us in this petition. It is firstly contended that the endorsement made by the Authorities in the C.D.C. issued to the petitioner is wholly without jurisdiction as section 43‑B of the Act did not authorise respondent No.2 to pass any such order. Alternatively, it is contended by the learned counsel that if it is found that the respondent No.2 was competent or had the authority to make such an endorsement in the C . D . C . issued to the petitioner, an appeal was competent before the respondent No.l against the above order and as it was refused to be entertained it amounted to refusal to exercise jurisdiction by respondent No.l vested in him by law. Learned counsel for the respondents on the other hand contended that although section 43‑B of the Act did not provide specifically for making of an endorsement of the kind made in the C.D.C. issued to the petitioner, nevertheless respondent No.2 was competent to direct incorporation of same as it was a penalty of lesser degree, which shall be deemed to be included in the major penalties prescribed by section 43‑B of the Act. With regard to the alternate contention of the learned counsel for the petitioner that the above endorsement being a penalty an appeal was competent, against it under section 43‑B(2) of the Act, all that the learned counsel could say in reply is that an appeal is only competent against imposition of major penalties prescribed under subsection (1) of section 43‑B of the Act. After hearing the learned counsel for the parties we are of the view that this petition can be disposed of on the alternate contention raised by the petitioner. We would, accordingly refrain here from expressing our opinion with regard to competency of respondent No.2 to direct incorporation of the endorsement reproduced above in the C.D.C. issued to the petitioner by the impugned order. The petitioner will be well within his right to agitate before the respondent No.l the question of competency of respondent No.2 to pass the impugned order directing incorporation of above endorsement in C.D.C. issued to the petitioner. According to subsection (2) of section 43‑B of the Act XXI of 1923, any person aggrieved by an order under subsection (1) ibid is entitled to prefer an appeal within 90 days from the date of receipt of such order before Federal Government. The impugned order, dated 4‑11‑1986 passed by respondent No.2 also mentioned this fact. It is not disputed before us that order, dated 4‑11‑1986 was passed by respondent No.2 under section 43‑B(1) of the Act. The petitioner is certainly a person aggrieved by the above order as his future employment has been affected by the order, dated 4‑11‑ 1986. The appeal filed by the petitioner against the order, dated 4‑11‑1986 was, therefore, fully competent before respondent No.l which was wrongly refused to be entertained. We accordingly, direct respondent No.l to entertain and dispose of the appeal of petitioner in accordance with the law. Learned counsel for the petitioner expressed the apprehension that on a further representation which the petitioner had made to the Ministry of Communication the action of respondent was confirmed which shows that the respondents are not prepared revise their decision and as such the appeal will be futile in these circumstances. As the appeal was never entertained by respondent No.l the question of any expression of opinion by respondent No.l on its merits does not arise. We may however, observe here that while deciding the appeal of petitioner the respondent No.l will not in any manner be influenced by any observation made by the Ministry of Communication on the representation of petition. The petitioner also made a grievance that a period of 1 j, years has passed when the discharge certificate was issued to him but in view of pendency of litigation he has not been able to get any employment. We accordingly further direct that the appeal of the petitioner will be disposed of by respondent No.l within a period of three months from today. There will be no order as to costs. S.Q./M‑409/K Order accordingly‑