JUDGMENT
Ashim Kumar Banerjee, J.
1. Five writ petitioners were working as seamen. They were mostly engaged in the ships run by the Directorate of Shipping in and around these islands. In 2004 they were asked to exercise their option whether they would be governed by the provisions of the Merchant Shipping Act, 1958 or they would continue to remain to be guided by FR & SR. The petitioners did not have any passenger ship familiarization course certificate or watch keeping certificate. Although 72 seamen were allow to exercise their option to be governed by the provisions of Merchant Shipping Act. The petitioners also exercised such option. In terms of the provisions of the said Act of 1958 they were to possess those two certificates. The authorities by their memorandum dated February 11, 2004 asked them to produce passenger ship familiarization course certificate as well as watch keeping certificate. However, by subsequent corrigendum issued on February 18, 2004 the authorities withdrew the condition for production of watch keeping certificate. Admittedly, petitioners did not have any of such certificates; even then the authorities accepted their option by observing that they did comply all requirements applicable therefor. Subsequently, they insisted on production those two certificates. Most of the seamen had undergone such course and obtained certificates. Some of them failed to obtain such certificate despite sitting in the examination. Those unsuccessful candidates, however, did not make any complaint therefor. These five writ petitioners (respondents herein), however, insisted that, once the authorities allowed them to opt for being guided by the provisions of Merchant Shipping Act and the authorities accepted such option, subsequent insistence of production of those two certificates could not be foisted upon them. They were disengaged by the authorities. According to them, since 11th March, 2005 they are starving as neither were they engaged in any ship nor they were paid any retention allowance.
2. The petitioners initially filed writ petitions including W.P. No. 8132(W) of 2004 inter alia praying for change of option in the changed circumstances.
3. The learned Single Judge by an order dated March 11, 2005 dismissed the writ petition by holding that the option once exercised could not be changed in accordance with the provisions of the said Act of 1958. An appeal was preferred. The Division Bench affirmed the order of the learned Single Judge, however, asked the authority to consider their representation. Nothing transpired thereafter.
4. Subsequent writ petition was filed being W.P. No. 156 of 2005, wherein the petitioners re-agitated the issue and prayed for a writ of certiorari for quashing of those notices by which the authorities demanded those two certificates.
5. Before the learned Single Judge it was contended on behalf of the petitioners that in earlier writ proceedings the authorities contended before His Lordship that the condition for submission of watch keeping certificate stood by the corrigendum dated February 18, 2004 appearing at page 71 of the paper book. The other requirement with regard to the passenger ship familiarization course certificate was also dispensed with. Considering such submission their writ petitions were dismissed by the learned Single Judge on March 11, 2005. The Division Bench also affirmed the decision of the learned Single Judge. Hence the authorities were not entitled to insist upon those two certificates and should not withhold engagement of the petitioners on that ground.
6. The administration, however, contended before the learned Single Judge that those certificates were demanded as those were prerequisite in terms of the provisions of the statute. They, however, could not satisfy His Lordship as to how they could take a contrary stand before this Court in the earlier writ proceeding.
7. The learned Single Judge considering the rival contentions came to the conclusion that under Clause VI of the office notice such certificate was a mandatory requirement at the time of exercising option. Moreover such requirement was in terms of Section 456 of the Merchant Shipping Act and could not be waived under any circumstance. His Lordship also observed that waiving of such condition would amount to compromising on passenger safety. Considering those aspects His Lordship directed the authorities to consider their prayer for reverting back to the earlier arrangement under FR & SR and if it was not possible the authority should give them opportunity to have those certificates by undergoing certification course therefor. His Lordship gave three months time for the said purpose and asked the authority to pay their salary during the said period.
8. Being aggrieved by, and dissatisfied with, the judgment and order of the learned Single Judge the authorities preferred the instant appeal.
9. Mr. A. K. Ray, learned Senior Counsel appearing in support of the appeal contended that the learned Single Judge in the earlier writ proceeding was not properly posted with the facts on behalf of the administration. Moreover, the authorities were not entitled to waive any statutory condition as it would not only violate the provisions of the statute but also would amount to compromise of the passenger safety as well as safety of the ship as a whole.
10. Mrs. Anjili Nag, learned Counsel appearing for the appellants while opposing the appeal contended that once the authorities took a stand before the Court of Law supported by their own documents they should not be allowed to take an inconsistent stand before this Court. She further contended that the authority knew that they did not possess those certificates. Even then they were allowed to opt for the service conditions under the Merchant Shipping Act. She lastly contended that in the event it is held that those certificates were statutorily required their option without those certificates should be treated as invalid one and they should be reverted back to their earlier arrangement under FR & SR.
11. We have gone through the judgment and order of the learned Single Judge in both the writ petitions. We have gone through the pleadings exchanged by the parties and the documents annexed thereto. We are in full agreement with His Lordship to the extent that waiving of passenger ship familiarizatio. certificate would amount to compromise on passenger safety. Similarly, watch keeping certificate was also a necessary one for the safety of the ship as a whole. At the same time we feel that for the fault on the part of the administration the respondents must not suffer.
12. Under the provisions of the Merchant Shipping Act the option once exercised cannot be taken back. Moreover, such issue was gone into in the earlier writ proceeding, might be on a misconception of facts on the basis of erroneous stand taken by the administration. Specific prayer for change of option was negated by the learned Single Judge, as affirmed by the Division Bench. Hence the learned Single Judge in this writ proceeding should not have allowed the appellants to reopen this issue and the relief granted on that count, in our view, cannot be sustained.
13. The appellants exercised option on the basis of the offer dated February 11, 2004 appearing at page 70 of the paper book read with the corrigendum appearing at page 71 thereof. Hence we are of the view that the authorities cannot insist upon the watch keeping certificate at this belated stage. We are told that all other seamen had undergone such course barring these five seamen who are pursuing their litigations before this Court. In such view of the matter, the authorities may entrust the job of watch keeping to other seamen on board. For that the petitioners could not be kept disengaged for eternity.
14. With regard to the passenger ship familiarization certificate course, we feel that the appellants should be given some time to undergo such course. The authorities must make necessary arrangement for their travel to mainland to undergo such course. The authority should also give them reasonable time so that they could obtain such certificate.
15. We, therefore, direct the respondent authorities to give one year time to the appellants to complete the passenger ship certification course in mainland. The authorities would also bear the expenses for their travel to the mainland for this purpose. So long they do not obtain such certificate, the authorities would engage them in cargo ship as far as practicable and in any event they must be paid retention allowance from the date they were disengaged after the judgment and order dated March 11, 2005 passed in the earlier writ proceeding. If there is any arrear on that account, the authorities must expedite the process of payment of such amount. The authorities would also continue to pay the same for one year from date. The appellants are also directed to co-operate with the administration for compliance for this order. In case despite arrangement being made by the authorities for undergoing such certification course any of the appellants fails to obtain passenger ship familiarization course certificate within the stipulated period he would not be entitled to be engaged in any passenger ship. He would however be entitled to be engaged for cargo ship and if there is no cargo ship available the authorities would not be obliged to pay any retention allowance beyond three months in one calendar year.
16. The writ petitioners would also try to obtain navigation watch keeping certificate. However, despite their best efforts, in case any of them fails to obtain such certificate, the authorities would not be entitled to withdraw the support to be given to them in terms of this order.
17. The judgment and order of the learned Single Judge dated August 18, 2006 is modified accordingly.
18. The appeal is disposed of without any order as to costs.
Dipankar Datta, J.
19. I agree.