The Chairman, V.O. Chidambaranar Port Trust & Ors. vs Capt. Paul Nadar Bennet Singh

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 Signature Not Verified appellants-Port Trust for the post of pilot officer, the 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 2

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 3

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) 4

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, 5

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 6

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. 7

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;……………………… 8

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 9

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]