THE CHAIRMAN V. O. CHIDAMBARANAR PORT TRUST & ORS. versus CAPT. PAUL NADAR BENNET SINGH on 6 December 2018

SUPREME COURT REPORTS

[2018] 13 S.C.R.

ATHE CHAIRMAN V. O. CHIDAMBARANAR PORT TRUST &ORS.

v.

CAPT. PAUL NADAR BENNET SINGH

(Civil Appeal No. 11902 of 2018)DECEMBER 06, 2018

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[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Tuticorin Port (Authorization of Pilots) Regulations, 1979:regns 2(e), 4, 6 – Appointment – Respondent was appointed in 2008Cto the post of Pilot Officer – Appointment was on regular basis witha condition to serve at least two years as pilot and subject toqualifying the examination for issue of pilot licence to perform dutiesof pilot as per the Regulations, 1979 – Respondent was terminatedfrom service in 2012 on the ground that he held certificate ofcompetency (CoC) as Master issued by the Maritime and PortDAuthority of Singapore which is not equivalent to the certificategranted by the Government of India – High Court set aside theorder of termination and directed reinstatement with back wagesgiving liberty to the appellant-Port Trust to examine the validity ofthe certificates possessed by respondent by providing him anEopportunity of personal hearing – On appeal, held: In theadvertisement issued for the post of Pilot Officer in response towhich the respondent had applied and thereafter was appointed, itwas not indicated that the candidate should have CoC issued bythe authorities recognised by the Government of India – As per theRegulations, 1979, the qualification of candidates for pilot licenceFis to possess CoC as Master (Foreign going) granted by theGovernment of India or its equivalent – Neither at the time of theappointment of the respondent nor subsequently, the appellants-Port Trust raised any objection that CoC granted by Maritime andPort Authority of Singapore was not equivalent to the CoC grantedGby the Government of India – In fact, in the letter of appointment,the appointment was subject to condition that the respondent shouldqualify in the examination for issue of pilot license to perform dutiesin Tuticorin Port Trust – Respondent was allowed to perform duties– There was no good ground warranting interference with theimpugned order – In the peculiar facts and circumstances of the H

instant case, the respondent having not worked with the appellantsfrom 2012 till date, the order of the High Court is modified withregard to the back wages to the extent that the same is reduced to40% with effect from 2012 till the date of joining – Service law –Termination.

Partly allowing the appeal, the Court

HELD: 1. In the clarification sought for by the appellantsin communication dated 15.03.2011, the Deputy Nautical Advisorclarified that the appellants may be guided by their PortRegulations. As per Tuticorin Port Regulations, 1979, thequalification of candidates for pilot license is to possess certificateof competency as Master (Foreign going) granted by theGovernment of India or its equivalent. Neither at the time of theappointment of the respondent or subsequently, the appellants-Port Trust had raised any objection that Certificate of Competencygranted by Maritime and Port Authority of Singapore was notequivalent to the CoC granted by the Government of India. Infact, in the letter of appointment the appointment was subject tothe condition that the respondent should qualify in the examinationfor issue of pilot license to perform duties in Tuticorin Port Trust.[Paras 12, 13][947-G; 948-B, E-G]

2. In the light of the clarification given by the DeputyNautical Advisor, the contention of the appellants that CoC issuedby the Maritime and Port Authority of Singapore cannot be takenas a recognized one by the Government of India, has nosubstance. This is all the more so, in the light of letter sent byappellants dated 29.09.2008 expressing satisfaction over theexperience and knowledge of the respondent in the shippingoperation. The respondent has been allowed to perform dutiesand also the fact that in the appointment order it is stated thatthe appointment is on “regular basis”. There is no good groundwarranting interference with the impugned order. Admittedly therespondent has not worked with the appellants from 2012 tilldate. In the peculiar facts and circumstances of the instant case,the order of the High Court is modified with regard to the backwages to the extent that the same be reduced to 40% with effectfrom 2012 till the date of joining. [Paras 14, 15, 16][949-A-D]

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 11902of 2018.

From the Judgment and Order dated 10.04.2017 of the HighCourt of Madras at Madurai in W.A. (MD) No. 914 of 2015.

Parag Tripathi, Sr. Adv., Keshav Thakur, Rajesh Singh Chauhan,BMs. Anu Tyagi, Ashwani Tyagi, Kunal Bahari, Advs. for the Appellants.

Mariarputham, Sr. Adv., Viajy Bhatt, Ram Sankar, Ms. Geetanjali,Rajaram Narayanan, Ms. Anuradha Arputham, R. V. Kameshwaran,Advs. for the Respondent.

The Judgment of the Court was delivered byC

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment and order dated10.04.2017 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 theorder of termination of the respondent and directed reinstatement withDback wages giving liberty to the appellants to examine the validity of thecertificates possessed by the respondent by providing him an opportunityof personal hearing.

3. In response to the advertisement issued by the appellants-PortTrust for the post of pilot officer, the respondent applied for the same.EThe respondent attended the interview for the post of Pilot Officer on19.03.2008 and he had become successful. By proceeding dated08.04.2008, the respondent was appointed to the post of Pilot Officer inthe appellants - Tuticorin Port Trust. As per appointment order, theappointment of the respondent is on regular basis as seen from thefollowing:F

“Capt. Paulandar Bennet Singh is offered an appointment as Piloton regular basisin the Tuticorin Port Trust in the scale of Pay ofRs. 1450-350-18700. He will be eligible for the usual allowancesas admissible under the rules and orders in force from time totime.

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2. The terms and conditions of appointment are as follows:

(i) He should execute a bond to the effect that he will serve atleast for two years as Pilot on Tuticorin Port Trust.

(ii) The appointment is temporary but is likely to continueindefinitely. This is further subject to the conditions that he should H

qualify in the examination for issue of Pilot License to performthe duties of Pilot in TPT as per Tuticorin Port (Authorization ofPilots) Regulations, 1979.

As per the appointment order, the respondent has to execute abond to the effect that he would serve at least for two years as Pilot inTuticorin Port Trust. From the language and the tenor of the saidappointment letter it is patently clear that the appointment was a regularappointment against a permanent post which was to continue subject tothe respondent qualifying in the examination of Pilot licence. Theappointment was subject to the condition that the respondent would notbe able to leave his job before expiry of two years from the date of hisappointment.

4. On 02.04.2012, the appellants issued a termination notice asper Regulation 5(1)(a)(b) of the Tuticorin Port Employees (TemporaryService) Regulations, 1979. The respondent filed appeal before theChairman on 21.04.2012. By the order dated 30.04.2012, the DeputyConservator In-charge had terminated the service of the respondent.

5. Challenging the termination order, the respondent filed the WritPetition before the High Court and the Learned Single Judge allowedthe Writ Petition setting aside the termination order and directedreinstatement of the respondent with back wages. In appeal, the DivisionBench affirmed the order of the learned Single Judge. However, theDivision Bench gave opportunity to the appellants to examine the validityof the certificates of the respondent again by affording an opportunity ofpersonal hearing.

6. We have heard Mr. Parag Tripathi, learned senior counselappearing on behalf of the appellants along with Mr. Keshav Thakur aswell as Mr.A. Mariarputham, learned senior counsel appearing on behalfof the respondent and perused the impugned judgment and materials onrecord.

7. As per Tuticorin Port (Authorization of Pilots) 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 suchby the Board subject to the authorization of the CentralGovernment, to pilot in the Port any vessel as directed by theDeputy Conservator/Harbor Master.”

As per Regulations 4, Pilots to be licensed as under:- A

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A“(1) Every pilot shall hold a license to perform the duties of a pilotfor the Port of Tuticorin and such license, subject to the sanctionof the Central Government, may be issued and be revocable bythe Board.

(2) A pilot severing his connection with the Board shall forthwithBdeliver his license to the Board.”

8. The objection raised regarding the appointment of the respondentis that he was holding certificate of competency as Master issued by theMaritime and Port Authority of Singapore which is not treated asequivalent of the certificate granted by the Government of India.According to the appellants, the Directorate General of Shipping, MinistryCof Shipping, Government of India, issued a Circular only on 27.05.2014No. NT/ENGG. 02 of 2014, as per which the Directorate had taken adecision to permit Australia, Singapore, Ireland and New ZealandCertificate of competency (CoC) holders of Indian nationality to sail onIndian Flag vessels. It is, therefore, the contention of the appellants thatDprior to 27.05.2014 the CoC issued by Singapore was not recognized byth Government of India. It was, therefore, submitted that the respondentpossessing certificate of competency issued by the Maritime and PortAuthority of Singapore was not eligible to be appointed on regular basisand, therefore, his service was rightly terminated and the High Courterred in directing reinstatement.E

9. Our attention has been drawn by learned senior counsel Mr.A. Mariarputham appearing on behalf of the respondent to theadvertisement issued for the post of Pilot Officer in response to whichthe respondent has appeared. The said advertisement for the Pilot Officerreads as under:F“Vacancy – 1 No. of Pilot Officer “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.14500-350-18700GApproximately Rs. 50,000/- per month (Conditions apply).”

10. It is to be pointed out that in the advertisement it was notindicated that the candidate should have a certificate of competencyissued by the authorities which are recognized by the Government ofIndia. In the case of the respondent, the Tuticorin Port Trust had sent aHletter to the Ministry of Shipping dated 29.09.2008 stating that the

respondent is in possession of certificate of competency issued by theMaritime Authority of Singapore and requesting to issue a positiveclarification which may help the appellants to engage the respondent asPilot in the appellants’ Port on a regular basis. The said letter reads asunder:

“However, a clarification was sought from nautical Advisor onthe validity of his Certificate, who in turn affirmed that SingaporeCertificate is not accepted by Indian Administration under Reg.1/10 of STCW 95.

Capt. Paul Nadar Bennet Singh is in possession ofqualification of M.B.A. (Shipping and Port Management), Masterof Human Resource, Advanced Diploma in MaritimeTransportation and Master of Science (M.S.) in counselling andpsychotherapy. He has a record of Sea Service as Master Marinerat different spell from 9.10.2003 to 22.12.2007. After hisappointment as Pilot in this Port he is being provided with necessarytraining so as to acquire knowledge in handling ships in the PortWaters. By Virtue of his experience in foreign going vessel, he ishaving high knowledge in the shipping operations and hisperformance in the field is apparently excellent.

It is, therefore, requested that taking into account the factualposition as brought out in para 2 & 3 above, to issue a positiveclarification, which may help to engage, Capt. Paul Nadar BennetSingh as Pilot in this Port on a regular basis, by accepting thecompetency Certificate issued by the Maritime Authority ofSingapore (a common wealth country).”

11. The Government of India in its communication dated 26.11.2010asked the appellants to clarify whether the certificate of competency asMaster (Foreign going) issued by the Maritime and Port Authority ofSingapore is a valid qualification for undertaking pilotage duties at TuticorinPort Trust as per relevant regulations/recruitment rules.

12. In the clarification sought for by the appellants in thecommunication dated 15.03.2011 the Deputy Nautical Advisor hasclarified the same as under:

1) Singapore is a white list country with IMO which means that ithas been recognized by IMO to have given full compliance toSTCW Convention 1978 (as amended).

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2) Certificate of Competency as Deck Officer Class I ( MasterMariners) issued by Maritime and Port Authority of Singapore isnot recognized under the provisions of Merchant Shipping Act,1958 (as amended), as well as STCW 78/95 Regulation 1/10 tocommand an Indian Ship as on date.

B3) As regard to recognize the CoC issued by PSA, Singapore forpilots working in your port, you may be guided by the portregulations.

13. The Deputy Nautical Advisor has thus clarified that theappellants may be guided by their Port Regulations. As pointed out earlier,as per Tuticorin Port Regulations, 1979, the qualification of candidatesCfor pilot license is to possess certificate of competency as Master (Foreigngoing) granted by the Government of India or its equivalent.

Regulation 6 reads as under:

6. Qualification of Candidates–(1) A candidate for a PilotageLicense shall:D

(a) be in possession of a certificate of competency as Master(foreign-going) granted by the Government of India or itsequivalent and should have, preferably, experience of at leastsix months as First Mate, on a foreign-goingship;………………………E

As seen from the above even as per the Regulations of theappellants-Port Trust, the qualification for pilot license is the possessionof the certificate of competency as Master (foreign-going) granted bythe Government of India or its equivalent. Neither at the time of theappointment of the respondent or subsequently that appellants – PortFTrust had raised any objection that Certificate of Competency grantedby Maritime and Port Authority of Singapore was not equivalent to theCoC granted by the Government of India. In fact, the letter of appointmentwhich we have extracted above, the appointment is subject to the conditionthat the respondent should qualify in the examination for issue of pilotGlicense to perform duties in Tuticorin Port Trust. In the impugned judgment,the Division Bench has pointed out the respondent has passed theexamination for issuance of pilot license on 10.02.2009. No exceptionwould be taken for the eligibility of the respondent to continue as thepilot officer in the appellants-Port Trust.

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14. In the light of the clarification given by the Deputy NauticalAdvisor the contention of the appellants that CoC issued by the Maritimeand Port Authority of Singapore cannot be taken as a recognized one bythe Government of India, in our view, has no substance. This is all themore so, in the light of letter sent by appellants dated 29.09.2008expressing satisfaction over the experience and knowledge of therespondent in the shipping operation. It is also to be pointed out that therespondent has been allowed to perform duties and also the fact that inthe appointment order it is stated that the appointment is on “regularbasis”.

15. In the light of the above discussion, we do not find any goodground warranting interference with the impugned order. In the light ofthe above discussion, there is no further necessity to examine thecertificate of the respondent as observed by the Division Bench.

16. Admittedly the respondent has not worked with the appellantsfrom 2012 till date. In the peculiar facts and circumstances of the presentcase, we modify the order of the High Court with regard to the backwages to the extent that the same be reduced to 40% with effect from2012 till the date of joining and the appeal is partly allowed to that extent.

17. The above judgment is passed in the special facts andcircumstances of the present case and may not be treated as a precedentin future.

Devika Gujral

Appeal partly allowed.

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