1985 PLP 189 (MLD)

Date of hearing: 10th March, 1985. The plaintiff has filed suit for recovery of U.S. $.2,496.25 equivalent to lts.34,947 being the balance of wage:: due front the defendant. The plaintiff was employed as Chief Officer on a monthly salary of U.S. $.1,800 with effect from 24-7-1983. According to the plaintiff he continued in service till November 29, 1983 and a sum of U.S. $.7,719 was due as wages against which U.S. $.5,222.75 were paid on 4-1-198`1 leaving a balance of U.S. $.2,496.25. The plaintiff filed this Admiralty suit and got the defendant arrested which was released on furnishing a bank guarantee. The owners of the defendant vessel entered appearance and filed their written statement. They denied that wages and dues are payable up to 29-11-1983. According to them the wages were due upto 18-10-1983 when in terms of the contract full and final Settlement was effected between the parties arid payment amounting to U.S. $.5,222.75 equivalent to Rs.70,402.67 was paid on 4-1-1984. The plaintiff's employment and terms of contract have not been denied but the period of employment from 19-10-1983 to 29-11--1983 has been denied. On tire basis of pleadings following issues were framed: (1) Whether the plaintiff was employed on defendant's vessel with effect from 24-7-1983 till 29-11-1983 and if so on what terms and conditions? (2) Whether the defendant has already paid the earned wages to the plaintiff and nothing is due to him as alleged in the written statement? (3) To what relief the plaintiff is entitled to? The parties have led evidence and by consent the evidence recorded in Suit No. 708 of 1984 has been read as evidence in this suit (No. 707 of 1984) and vice versa. Issue No.1.--So far employment is concerned there is no dispute that the plaintiff was employed as Chief Officer oil 24-7-1983 under a contract Exh.4/1. The terns and conditions of tire employment are set out in this document which are not disputed. From this admitted document it is fully established that the plaintiff was appointed Chief Officer on 24-7-1983 on monthly salary of U.S. $ 1,1300. The owners had agreed to pay wages in full at the end of every month and the monthly wages were to be remitted in full direct to Diamont Mubarak and Company Karachi in Pakistan currency and the same were to be commencing from 29-7-1983 to 18-10-1983 and the balance due up to that date was U.S. $.5,

223. The parties agree that on 18-10-1983 U.S. $.5,223 was payable to the plaintiff and it was paid on 3-1-1984. The learned counsel for the defendant has also referred to Exh.4/8 which is a receipt signed by the plaintiff on 3-1-1984 acknowledging the payment amounting to U.S. $.5,222.75 equivalent to Rs.70,402.67 being the payment of wages in full settlement. According to the defendant this document clearly proves that the plaintiff has accepted the amount in full and final settlement of his claim for wages and, therefore, his employment could not be extended beyond 18-10-1983. On the other hand the plaintiff has relied on an undated statement entitled "final account of wages" issued by the Master certifying that the plaintiff is entitled to wages upto 29-11-1983. According to Mr. Hasan Inamullah the learned counsel for the defendant, no credit should be given to this certificate as it has been issued by the Master who has filed suit for similar claim against the defendant. The defendant has mainly relied oil the statement entitled "Account of wages" Exh.4/9 which is duty signed by the defendant's owner, Master and the plaintiff. There are certain alterations made in it but they are immaterial for the purposes of deciding this issue. The learned counsel for the defendant teas also relied on Exh.4/8 and contended that both the documents read together clearly establish that the plaintiff has worked upto 18-10-1983 and on 3-1-1983 accepted the payment in full settlement. Mr. Hamid Hussain the learned counsel for the plaintiff has contended that the statement of account was only upto 18-10-1983 and the receipt was executed only in respect of payment received in pursuance of that statement of account. According to the learned counsel the receipt does not reflect the settlement of the entire claim upto 29-11-1983. Mr. Hassan Inamullah the learned counsel for tire defendant has also referred to Exh.4/4 the letter dated 5-6-1984 in which the plaintiff has made his claim for balance wages from 19-10-1982 to 29-11-1983. From this letter the learned counsel for the defendant wants to infer that the plaintiff was no longer on duty from 18-10-1983 arid from that date till his departure on 29--11-1983 he remained on board without performing any duty. It is significant to note that this letter has not been replied by the defendant. The claim that the plaintiff was kept on board upto 29-11-1983 on the premise to pay the wages into departure i.e. 29-11-1983 has not been denied. The entire letter has to be read as a whole and no inference can be drawn by referring to it certain statement out of its context. From this letter it is established A that the plaintiff was to be repatriated on 18-10-1983 and all dues were to be paid till that date, but as it wits trot paid lie remained on board upto 28-10-1983 and was repatriated on 29-11-1983 on the condition that the wages upto 29-11-1983 will be paid in this letter the plaintiff has clearly stated that the owners had promised to pay upto 29-11-1983 and sign statement of Account in Hotel at Tehran from where he was to fly to Karachi, but they did not turn up and he had to come to Karachi with wages remaining unpaid. If this statement was incorrect the defendant's owner should have replied denying the same. The defendant does not state that at any stage a discharge) letter or certificate had been issued to the plaintiff. The letter Exh.4/4 does not mention that the plaintiff had been discharged on 18-10-1983. The defendants have not produced any letter to show that the plaintiffs' service was terminated on 18-10-1983 or he was discharged on that date. Nor there is any evidence to show that the discharge if any was I made before the Shipping Master or equivalent officer of the Iranian Government or any authorised officer of the Pakistan Embassy. It is an admitted position that so far the plaintiff has riot been signed off, The defendant has riot even produced the Log Book of the vessel to show that the plaintiff had been signed off or discharged on 18-10-1983. The Master is entitled to issue certificate of discharge and statement of account of wages. The final statement of Account Exh.4/7 was issued by tire Master and speaks of employment upto 29-11-1983. Although its veracity has been challenged during argument, the same was not questioned when it was produced by the plaintiff. Tile Master, was also examined but no suggestion was made to him that he had issued the certificate incorrectly. In these circumstances Exh.4/7 cannot be discarded. The fact that the plaintiff has executed a receipt Exh.9/8 on 3-1-1984 for U.S. $.5,222,275 (Rs.70,402.67) being payment of wages in "full settlement" does not establish that the plaintiff has waived his claim from 19-10-1983 to 29-10-1983 or that the settlement was in respect of the entire wages upto 29-I1-1983. According to the defendants witness (D.W.1) the receipt was obtained in respect of statement of account of wages Exh.4/9 which related for the period from 24-7-1983 to 18-10-1983. Therefore, it cannot be contended that by accepting the amount shown in the receipt, the plaintiff has accepted and finally settled his wages upto 29-11-1983. It is pertinent to note that if wages have accrued to Seamen by an agreement he cannot be deprived of any remedy for its recovery and such an agreement is void arid the amount due is recoverable. Therefore, the plea of waiver or settlement is of no avail to the defendant, file defendant could have established period of service 1'rorlr the! Log-book of the vessel and Chief Officers log-book which are maintained on board of the ship. These documents would be in possession of the defendant's owners or on board the vessel, but they have not cared to even produce them to establish the length of service of the plaintiff. From the non-production of the authentic document which in the normal course should have been in possession of the defendant or her owners, adverse inference has to be drawn. My finding on this issue is that the plaintiff remained in employment from 24-7--1983 to 29-11-1983. There is no dispute about the terms and conditions as contained in the contract of employment Exh.4/1. Issue No. 2. -The plaintiff has been paid wages upto 18--10-1983 thereafter no wages have been paid. In this regard tile defendant has pleaded that in view of the receipt executed by the plaintiff on 3-1-1984 the entire wage account stands settled. According to the defendant final settlement was effected between the parties on 18-10-1983 and payment in full way made or, 4-1-19844. As discussed in issue No. l this payment was made in pursuance of the statement of account which was only for the period ending 18-10-1983. This statement of account does not relate to the ravages' beyond that period and by receipt Exh.4/8 relied upon by the defendant, neither the right to claim wages from 19-10-1983 to 29-11-1983 is waived nor fully settled. The stand taken by the defendant on this aspect of the case is contradictory. In the written statement it has been pleaded that in view of the receipt Exh.4/8 there was a final settlement. D.W.1 has stated that although the plaintiff was on board upto 28-11-1983 wages from 19-10-1983 to 28-11-1983 were not paid because the plaintiff had agreed with the owner that if the wages upto h 18-10-1983 are paid he would not claim that amount. This according to the witness was verbally agreed. According to D.W.2 although the contract was terminated on 18-10-1983 as remittance was not made the plaintiff stayed on board upto 28-11-1983 as guest. lie has further stated that from 18-10-1983 till 29-11-1983 there was no further settlement between the parties. If the statement of P.W.1 is accepted then it clearly implies that wages from 19-10-1983 to 29-11-1983 were due but under an agreement the plaintiff has waived it. This has not been pleaded by the defendant. So far the statement of D.W.2 is concerned he admits that the plaintiff remained on board but did not perform any duty. In view of the discussion under issue No. 1 the plaintiff has proved that he is entitled to wages upto 29-11-1983. Mr. Hassan Inamullah the learned counsel has contended that after accepting wages on 3-1-1984, the plaintiff remained silent for a long period therefore, it should be assumed that lie had accepted tire settlement. This contention is contrary to the facts on record. It has been established that the plaintiff has been making claim and visiting the office of the defendant's agents and also the office of the Shipping Master. If the plaintiff would have accepted the payment in full settlement he would not have perused the matter further. In any event while making claim before Shipping Master and defendant's agent tire plaintiff' wrote to the owners on 14-5-1984 and 5-6-1984 giving details of his claim. The defendant's owner did no reply. From those facts it cannot be inferred that the plaintiff had 'made' fill settlement of his entire claim. My finding is in the negative. Issue No.3.--As there is no dispute about the rate of wages, in view of finding on the preceding issues, the suit is decreed for Rs.34,947.50. A.A. Suit decreed.