Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11902 OF 2018
(@ SPECIAL LEAVE PETITION(CIVIL) NO. 16874 OF 2017)
THE CHAIRMAN V.O. CHIDAMBARANAR PORT TRUST & ORS. ...APPELLANT(S)
VERSUS
CAPT. PAUL NADAR BENNET SINGH ...RESPONDENT(S)
J U D G M E N T
R. BANUMTAHI,J.
Leave granted.
2. This appeal arises out of the judgment and order
dated 10.04.2017 passed by the High Court of Madras at
Madurai in W.A. (MD) No. 914 of 2015 in and by which the
High Court has set aside the order of termination of the
respondent and directed reinstatement with back wages
giving liberty to the appellants to examine the validity of
the certificates possessed by the respondent by providing
him an opportunity of personal hearing.
3. In response to the advertisement issued by the
appellants-Port Trust for the post of pilot officer, the
Signature Not Verified
Digitally signed by
MADHU BALA
Date: 2018.12.14
10:10:30 IST
Reason:
respondent applied for the same. The respondent attended the
interview for the post of Pilot Officer on 19.03.2008 and he
had become successful. By proceeding dated 08.04.2008, the
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respondent was appointed to the post of Pilot Officer in the
appellants - Tuticorin Port Trust. As per appointment order,
the appointment of the respondent is on regular basis as
seen from the following:
“Capt. Paulandar Bennet Singh is offered
an appointment as Pilot on regular basis
in the Tuticorin Port Trust in the scale
of Pay of Rs. 1450-350-18700. He will be
eligible for the usual allowances as
admissible under the rules and orders in
force from time to time.
2. The terms and conditions of
appointment are as follows:
(i) He should execute a bond to the
effect that he will serve at least for
two years as Pilot on Tuticorin Port
Trust.
(ii) The appointment is temporary but is
likely to continue indefinitely. This is
further subject to the conditions that he
should qualify in the examination for
issue of Pilot License to perform the
duties of Pilot in TPT as per Tuticorin
Port (Authorization of Pilots)
Regulations, 1979.
As per the appointment order, the respondent has to execute
a bond to the effect that he would serve at least for two
years as Pilot in Tuticorin Port Trust. From the language
and the tenor of the said appointment letter it is patently
clear that the appointment was a regular appointment against
a permanent post which was to continue subject to the
respondent qualifying in the examination of Pilot licence.
The appointment was subject to the condition that the
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respondent would not be able to leave his job before expiry
of two years from the date of his appointment.
4. On 02.04.2012, the appellants issued a termination
notice as per Regulation 5(1)(a)(b) of the Tuticorin Port
Employees (Temporary Service) Regulations, 1979. The
respondent filed appeal before the Chairman on 21.04.2012. By
the order dated 30.04.2012, the Deputy Conservator In-charge
had terminated the service of the respondent.
5. Challenging the termination order, the respondent filed
the Writ Petition before the High Court and the Learned
Single Judge allowed the Writ Petition setting aside the
termination order and directed reinstatement of the
respondent with back wages. In appeal, the Division Bench
affirmed the order of the learned Single Judge. However, the
Division Bench gave opportunity to the appellants to examine
the validity of the certificates of the respondent again by
affording an opportunity of personal hearing.
6. We have heard Mr. Parag Tripathi, learned senior
counsel appearing on behalf of the appellants along with Mr.
Keshav Thakur as well as Mr.A. Mariarputham, learned senior
counsel appearing on behalf of the respondent and perused the
impugned judgment and materials on record.
7. As per Tuticorin Port (Authorization of Pilots)
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Regulations, 1979, the term Pilot is defined in 2(e) of the
Regulations as under:
(e) “Pilot” means a person lawful appointed
and licensed as such by the Board subject to
the authorization of the Central Government,
to pilot in the Port any vessel as directed
by the Deputy Conservator/Harbor Master.”
As per Regulations 4, Pilots to be licensed as under:-
“(1) Every pilot shall hold a license to
perform the duties of a pilot for the Port of
Tuticorin and such license, subject to the
sanction of the Central Government, may be
issued and be revocable by the Board.
(2) A pilot severing his connection with
the Board shall forthwith deliver his
license to the Board.”
8. The objection raised regarding the appointment of the
respondent is that he was holding certificate of competency
as Master issued by the Maritime and Port Authority of
Singapore which is not treated as equivalent of the
certificate granted by the Government of India. According
to the appellants, the Directorate General of Shipping,
Ministry of Shipping, Government of India, issued a Circular
only on 27.05.2014 No. NT/ENGG. 02 of 2014, as per which the
Directorate had taken a decision to permit Australia,
Singapore, Ireland and New Zealand Certificate of competency
(CoC) holders of Indian nationality to sail on Indian Flag
vessels. It is, therefore, the contention of the appellants
that prior to 27.05.2014 the CoC issued by Singapore was not
recognized by th Government of India. It was, therefore,
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submitted that the respondent possessing certificate of
competency issued by the Maritime and Port Authority of
Singapore was not eligible to be appointed on regular basis
and, therefore, his service was rightly terminated and the
High Court erred in directing reinstatement.
9. Our attention has been drawn by learned senior counsel
Mr. A. Mariarputham appearing on behalf of the respondent to
the advertisement issued for the post of Pilot Officer in
response to which the respondent has appeared. The said
advertisement for the Pilot Officer reads as under:
“Vacancy – 1 No. of Pilot Officer
Qualification & Experience: Certificate of
Competency as Master (FG) with minimum three
years experience as Chief Officer.
Age: 45 years.
Remuneration : Scale of Pay of Rs.14500-350-
18700 Approximately Rs. 50,000/- per month
(Conditions apply).”
10. It is to be pointed out that in the advertisement it was
not indicated that the candidate should have a certificate of
competency issued by the authorities which are recognized by
the Government of India. In the case of the respondent, the
Tuticorin Port Trust had sent a letter to the Ministry of
Shipping dated 29.09.2008 stating that the respondent is in
possession of certificate of competency issued by the Maritime
Authority of Singapore and requesting to issue a positive
clarification which may help the appellants to engage the
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respondent as Pilot in the appellants’ Port on a regular basis.
The said letter reads as under:
“However, a clarification was sought from
nautical Advisor on the validity of his
Certificate, who in turn affirmed that
Singapore Certificate is not accepted by
Indian Administration under Reg.1/10 of STCW
95.
Capt. Paul Nadar Bennet Singh is in
possession of qualification of M.B.A.
(Shipping and Port Management), Master of
Human Resource, Advanced Diploma in Maritime
Transportation and Master of Science (M.S.)
in counselling and psychotherapy. He has a
record of Sea Service as Master Mariner at
different spell from 9.10.2003 to
22.12.2007. After his appointment as Pilot
in this Port he is being provided with
necessary training so as to acquire
knowledge in handling ships in the Port
Waters. By Virtue of his experience in
foreign going vessel, he is having high
knowledge in the shipping operations and his
performance in the field is apparently
excellent.
It is, therefore, requested that taking
into account the factual position as brought
out in para 2 & 3 above, to issue a positive
clarification, which may help to engage,
Capt. Paul Nadar Bennet Singh as Pilot in
this Port on a regular basis, by accepting
the competency Certificate issued by the
Maritime Authority of Singapore (a common
wealth country).”
11. The Government of India in its communication dated
26.11.2010 asked the appellants to clarify whether the
certificate of competency as Master (Foreign going) issued by
the Maritime and Port Authority of Singapore is a valid
qualification for undertaking pilotage duties at Tuticorin Port
Trust as per relevant regulations/recruitment rules.
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12. In the clarification sought for by the appellants in
the communication dated 15.03.2011 the Deputy Nautical Advisor
has clarified the same as under:
1) Singapore is a white list country with
IMO which means that it has been recognized
by IMO to have given full compliance to STCW
Convention 1978 (as amended).
2) Certificate of Competency as Deck
Officer Class I ( Master Mariners) issued by
Maritime and Port Authority of Singapore is
not recognized under the provisions of
Merchant Shipping Act, 1958 (as amended), as
well as STCW 78/95 Regulation 1/10 to command
an Indian Ship as on date.
3) As regard to recognize the CoC issued
by PSA, Singapore for pilots working in your
port, you may be guided by the port
regulations.
13. The Deputy Nautical Advisor has thus clarified that the
appellants may be guided by their Port Regulations. As pointed
out earlier, as per Tuticorin Port Regulations, 1979, the
qualification of candidates for pilot license is to possess
certificate of competency as Master (Foreign going) granted by
the Government of India or its equivalent.
Regulation 6 reads as under:
6. Qualification of Candidates –(1) A
candidate for a Pilotage License shall:
(a) be in possession of a certificate of
competency as Master (foreign-going) granted
by the Government of India or its equivalent
and should have, preferably, experience of at
least six months as First Mate, on a foreign-
going ship;………………………
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As seen from the above even as per the Regulations of the
appellants-Port Trust, the qualification for pilot license is
the possession of the certificate of competency as Master
(foreign-going) granted by the Government of India or its
equivalent. Neither at the time of the appointment of the
respondent or subsequently that appellants – Port Trust had
raised any objection that Certificate of Competency granted by
Maritime and Port Authority of Singapore was not equivalent to
the CoC granted by the Government of India. In fact, the letter
of appointment which we have extracted above, the appointment
is subject to the condition that the respondent should qualify
in the examination for issue of pilot license to perform duties
in Tuticorin Port Trust. In the impugned judgment, the Division
Bench has pointed out the respondent has passed the examination
for issuance of pilot license on 10.02.2009. No exception would
be taken for the eligibility of the respondent to continue as
the pilot officer in the appellants-Port Trust.
14. In the light of the clarification given by the Deputy
Nautical Advisor the contention of the appellants that CoC
issued by the Maritime and Port Authority of Singapore cannot
be taken as a recognized one by the Government of India, in our
view, has no substance. This is all the more so, in the light
of letter sent by appellants dated 29.09.2008 expressing
satisfaction over the experience and knowledge of the
respondent in the shipping operation. It is also to be pointed
out that the respondent has been allowed to perform duties and
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also the fact that in the appointment order it is stated that
the appointment is on “regular basis”.
15. In the light of the above discussion, we do not find any
good ground warranting interference with the impugned order. In
the light of the above discussion, there is no further
necessity to examine the certificate of the respondent as
observed by the Division Bench.
16. Admittedly the respondent has not worked with the
appellants from 2012 till date. In the peculiar facts and
circumstances of the present case, we modify the order of the
High Court with regard to the back wages to the extent that the
same be reduced to 40% with effect from 2012 till the date of
joining and the appeal is partly allowed to that extent.
17. The above judgment is passed in the special facts and
circumstances of the present case and may not be treated as a
precedent in future.
……………………………………………………..J.
[R. BANUMATHI]
NEW DELHI …………………………………………………….J.
6TH DECEMBER, 2018 [INDIRA BANERJEE]