Desertion is the act of leaving a ship with no intention to return to it.

Judgement

HIDAYATULLAH, J. : This is an appeal on behalf of ten appellants who were charged for deserting their ship "S. S. Nilgiri" on or about April 22, 1964. They were convicted under Ss. 191 (1) (a) and (b) and 194 (b) and (e) read with S. 436 of the Merchant Shipping Act, 1958. Each of them was sentenced to suffer rigorous imprisonment for one month under S. 191 (1) (a) read with S. 436 of the Act and also to forfeiture of 1/25 of the wages due. Under S. 194 (e) they were fined Rs. 20 each but no separate sentences were passed against them under S. 191(1) (b) and S. 194 (b) of the Act Their application for revision in the High Court of Calcutta was summarily rejected. They now appeal by special leave granted by this Court.

2. The facts of the case are that the appellants had entered into a half-yearly agreement with the Eastern Steamship Ltd. to navigate "S. S. Nilgiri" (Captain Hunter) between December 11, 1963 and June l0, 1964. The terms of their agreement are exhibited as Ex. l in the case. It appears that they had performed some voyages on board "S. S. Nilgiri" and on the day on which they are alleged to have deserted the ship, it had berthed in the Calcutta Port. According, to the custom obtaining in merchant shipping the ratings were allowed some bazar money (victualling charges). The appellants claim that they should have been paid Re.1 per day (the Company was paying only 62 paise per day). When the ship was in dock, the appellants put in this demand on 21/22-4-1964, and the matter was referred to the Shipping Master, Calcutta. Meetings between the representatives of the Shipping Company and the seamen took place before the Shipping Master. Minutes are available in the case. Although oral testimony on behalf of the Company seems to give a lie to some parts of the minutes, it is obvious that some sort of an agreement took place under which the Company promised to pay these men the amount though it is not clear whether the amount was to be paid before the commencement of the next voyage or on the termination of the agreement. Oral testimony on behalf of the company inclines to the latter. But there is also the evidence that the Company had undertaken to pay the seamen the additional amount of 38 paise per person per day before the voyage was resumed. Be that as it may, it appears that labour leaders at this stage began to take a hand in the dispute and prompted the appellants to leave the vessel in a body. As a result the ship could not leave the port because the ratings had abandoned it and were not available at the appointed time of sailing.

3. The Presidency Magistrate before whom the appellants were tried for the offences already mentioned, held that their conduct amounted to desertion and that as they had no reasonable excuse for leaving their ship, they were guilty of the offences charged. He accordingly sentenced them as already stated. The High Court summarily rejected their revision.

4. In this appeal it is contended (a) that there was no desertion on the part of the appellants, and (b) even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship.

5. The matter is governed by the Merchant Shipping Act, 1958. It does not define what is meant by desertion; but in Moore v. Canadian Pacific Steamship Co., 1945-1 All ER 128. Mr. Justice Lynskey gave a definition of desertion from an early case [The West-morland. (1841) 1 Wm Rob 216] as follows :-

"I think a deserter is a man who leaves his ship and does not return to it with no other purpose than to break his agreement." The gist of desertion therefore is the existence of an animus not to return to the ship on in other words, to go against the agreements under which the employment of seamen for Sea voyages generally takes place. In our opinion, this definition may be taken as a workable proposition for application to the present case. There is nothing in th