1991 PLP 186 (PLC)

"2(8) `seaman' means every person (except masters, pilots and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship;

17. A General Roster of seamen shall be maintained in the Shipping Office in such form as may be prescribed by the Board and in accordance with the rules hereinafter contained.

22. Once a seaman is accepted for a Company Roster, his name shall continue to be so entered until a change in this behalf is permitted by the Shipping Master, on the request either of the seaman or the shipping company. Such changes shall not, save in exceptional circumstances, be permitted more than once in any year.

25. On receipt of indents from ship owners, the Shipping Master shall arrange to call up the requisite number of seamen from the appropriate roster in accordance with such procedure as may be prescribed by the Board.

26. Seamen who report to the Shipping Office on or before the due date in response to the call under rule 25 shall be eligible for employment in the order in which their names stand in the relevant rosters.

28. The Shipping Master shall offer to ship owners the services of the seamen of each category as are eligible and available for employment on the principle of rotation. 29. (1) A ship owner shall as a rule engage seamen for employment in the order in which they are offered: Provided that, for reasons stated to the satisfaction of the Shipping Master,-- (a) the ship owner may reject any seaman so offered; and (b) an v seaman may refuse engagement on any ship for which he is proposed to selected. (2) The Shipping Master may, with the approval of the Board, lay down conditions in accordance with which a seaman may refuse engagement on a ship and a ship owner may reject a seaman. (3) The name of seaman who refuses engagement offered to him by rotation, without reasonable ground, shall be relegated to the bottom of the roster:' The expression "seaman" is defined in section 2(8) of the Act. It means every person (except masters, pilots and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship. The contention of Mr. Obaidur Rehman is that the workmen concerned are seamen within the meaning of section 2(8) of the Act as they are persons employed or engaged in any capacity on board any ship. Subsection (1) of section 26-A of the Act provides that the Federal Government may, by notification in the Official Gazette, make rules regulating the engagement of seamen, their employment on various ships and other matters affecting maritime labour generally. Subsection (2) of section 26-A provides that such rules may provide for all or any of the following matters, that is to say (b) the registration of seamen, and the fees to be charged by Shipping Master for issue of registration books to them. Clause (c) provides the maintenance of seamen's rosters and clause (d) provides the principles and procedure to be followed by ship owners in engaging and promoting seamen. Section 27(1) of the Act provides that the master of every British ship except home trade ships of a burden not exceeding three hundred tons, shall enter into an agreement (in this Act called the agreement with the crew) in accordance with this Act with every seaman whom he engages in, and carries to sea as one of his crew, from any port in Pakistan. Section 28(1) of the Act provides form and contents of the agreement. In exercise of the powers conferred by section 26-A of the Act, the Federal Government framed the Pakistan Merchant Shipping (Seamen's Employment) Rules, 1961. Rule 2(a) defines "company roster" which means the seamen's roster maintained under Rule

20. Rule 2(d) defines "general roster" which means the seamen's roster, maintained under rule

17. Part III of the Rules deals with registration. Rule 4 provides that no person shall be eligible for engagement as a seaman unless he is duly registered at a Shipping office and is in possession of a Registration Book issued under rule

12. Rule 5 provides "that no person shall be eligible for registration under these Rules unless he (i) holds a valid Continuous Discharge Certificate issued by the Shipping Master; (ii) holds a valid medical certificate of fitness issued by the Medical Authority; (iii) is within such age limit as may be prescribed by board from time to time; and (iv) has not had adverse reports for at least two previous consecutive voyages on his Continuous Discharge Certificate". Rule 9 provides that the particulars of all persons approved for registration shall be entered in the register of seamen maintained in the Shipping Office for the purpose. Rule 11 provides that the Shipping Master shall allot to each seaman accepted for registration, a distinction Registration Number which shall be prominently marked on all official documents issued to the seaman. Part IV of the Rules deals with roster. Rule 17 provides that a general roster of seamen shall be maintained in the Shipping Office in such form as may be prescribed by the Board and in accordance with the Rules hereinafter contained. Sub-rule (1) of Rule 20 provides that on application by a shipping company or a group of shipping companies separate rosters for all or any of the categories in respect of the seamen customarily employed by that shipping company or group of companies may be maintained in the Shipping Office or, with the approval of the board, with the company desirous of maintaining such roster and that such rosters shall be called "Company Rosters". Rule 21 provides that the name of a seaman may be entered either in the general roster or in a company roster but not in both. Rule 22 provides that once a seaman is accepted for a company roster, his name shall continue to be so entered until a change in this behalf of permitted by the Shipping Master, on the request either of the seaman or the Shipping company. Such changes shall not, save in exceptional circumstances, be permitted more than once in any year. Part V of the Rules deals with supply of seamen. Rule 24 provides that all shipping companies shall furnish to the shipping master of that post indents for the various categories of seamen on receipt of indents from ship owners, the shipping master shall arrange to call up the requisite number of seamen from the appropriate order m accordance with such procedure as may be prescribed by the Board. Rule 26 provides that seamen who report to the shipping office on or before the due date in response to the call under rule 25 shall be eligible for employment in the order in which their names stand in the relevant rosters. Rule 27 provides that seamen who report to the shipping office after the due date shall be eligible for employment in such order as may be prescribed by the Board. Rule 29 provides that the shipping master shall offer to ship owners the services of the seaman" of each category as are eligible and available for employment on the principle of rotation. A perusal of the several provisions of the Act and the Rules framed thereunder makes it clear that seaman means every person employed or engaged in any capacity on board any ship. If the interpretation sought to be put upon the definition of "Seaman" in section 2(8) by the respondents is to be accepted, then all the provisions of the Act and the Rules will have to be confined in their application only to seaman holding valid CDC. It was pointed out by Mr. Obaidur Rehman that the expression used in section 2(8) is `employed' or `engaged' in any capacity on board a ship. It was argued that if this definition was applicable to a seaman, it would have been sufficient to have used the expression "employed or engaged" under this Act. This submission is well-founded. The expression under the Act has, in my view, been deliberately omitted in order to restrict the definition of seaman to such seaman engaged or employed in any capacity on board a ship. Apparently it was intended that the Act should apply to all persons (except pilots and apprentices) employed or engaged in any capacity on board a ship. The learned counsel for the respondents strongly relied on the provisions of section 22(5), I.R.O. and Article 5 of the Constitution of the Unions. Article 5 of the Constitution provides that any worker working as Pakistani seaman and holding valid CDC can become member of the union. Section 22(5) of I.R.O. provides that the Registrar of Trade Unions shall prepare a list of voters in which shall be included the name of every workman whose period of employment is not less than three months and who is a member of any of the contesting trade unions. The provisions of section 22(5) of I.R.O. are only essential for preparation of list of voters. Article 5 of the Constitution provides for becoming member of the Unions. The definition of seaman is very clear and specific. According to it, the seaman must be actually engaged or employed in any capacity on board a ship. For the above reasons, I am of the view that the expression "seaman" as defined by section 2(8) is confined only to those who are (except pilots and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship. In the view I have taken, the further question has to be gone into, namely, whether the workers of the trade union have been employed or engaged in any capacity on board any ship. I, therefore, declare the portion contained in the letter dated 2-1-1990 as without lawful authority and of no legal effect and direct the first respondent to consider whether the seamen have been employed or engaged on board any ship r not. The Constitution petition is allowed but in the circumstances of the case without cost. M.Y.H./P-171/K Petition allowed.