' This is a suit for the recovery of US 8 9,710 equivalent to Pak rupees 1,29,143 under Admiralty Courts Ordinance, 1980. Brief facts leading to the filing of the above suit are that on or about 20th July, 1981, the plaintiff was appointed as a Third Officer by the defendant No, 3 (who are agents of Defendant No, 2 in Pakistan) on behalf of Defendant No,
2. On board the defendant No, 1, the vessel namely S. T.
Amount Allah on the terms and conditions contained in a letter of appointment dated 20th July, 1981 (Ex. P/I) for a period of one year, out of which three months were probationary period. The plaintiff signed Pakistani Articles and thereafter flew to Jeddah on 20th July, 1981 where he signed Articles on defendant No,
1. It is the case of the plaintiff that on the expiry of three months period, he became a confirmed employee and was entitled to a formal service contract for which he requested the defendant Nos. 2 and 3 several times, but they kept him on false promises. It is also the case of the plaintiff that by virtue of being a permanent employee in accordance with the custom and practice in the trade, he was entitled to the following allowance in addition to the basic wages and leave wages mentioned in his letter of appointment :
(i) Service on tanker allowance @ US $ 56.4 per month for 9 months amounting to US $ 504.9.
(ii) Overtime allowance @ US $ 168.3 per month for nine months amounting to US $ 1,520.1.
' It is also the case of the plaintiff that he being a Pakistani citizen was at the mercy of defendant Nos. 2 and 3 at Jeddah and that it is quite obvious that despite his repeated demands, he was not paid these allowances. He returned to Karachi on 20th July, 1982 and demanded the payment of his allowances which then amounted to US $ 2025 for nine months. It has also been averred that the defendant Nos. 1 to 3 asked the plaintiff to sign off the Pakistani Articles without settlement of his dues which he lawfully refused to do so. It has been further averred that the plaintiff on account of non-signing off Pakistani Articles is unable to obtain employment and Seaman with any other vessel and as a result of that the plaintiff is entitled to monthly basic wages at the rate of US $ 561 for each monthly period commencing from 20th July, 1982. It has further been averred that the plaintiff is entitled to an amount of U S $ 7,685.7 and an additional sum of U S $ 561 for each month from the date of the suit till the time, the defendant Nos. 1 to 3 issue a proper discharge. The plaintiff has, therefore, prayed for the above sum of U S $ 9,710 equivalent to rupees 1,29,143 plus U S $ 561 per month from the date of filing of suit until proper discharge and costs.
' Defendants Nos. 2 and 3 have filed a joint written statement, in which they have vehemently denied the allegations contained in the plaint. It has been averred that there was no requirement for signing off any other agreement under the law and that issuance of a service contract referred to in the appointment letter became a surplusage. It has also been averred that the answering defendants had never agreed, either in writing or verbally to pay the plaintiff any allowance whatsoever besides the wages/ emoluments mentioned in the said appointment letter/Articles of Agreement. It has also been denied that all crew members in general or the plaintiff in particular were entitled to any Tanker or overtime allowance and that the plaintiff was not required to work overtime. It has also been averred that the plaintiff has been paid the full wages as per terms mentioned in the appointment letter and that the plaintiff was legally bound to sign off the Articles of Agreement which he unlawfully refused. It is denied that the plaintiff is entitled to any relief.
' Defendant No, 4 is the purchaser of defendant No, 1, the vessel as a scrap vessel. They have also filed a separate written statement denying their liability.
' On 3rd December, 1983 as many as twelve issues were framed. However, on the date of arguments namely on 6th April, 1985, I had recast the issues by the consent of the learned counsel for the parties and framed the following four issues : -
(1) Whether the plaintiff is entitled to overtime and Oil Tanker allowance as averred in the plaint ?
(2) Whether the plaintiff accepted U S dollars 695 in full and final settlement of his claim or under protest ?
(3) Whether the plaintiff is entitled to his basic salary amounting to 561 U. S. Dollars for each month from 20th July, 1982 till the decree ?
(4) What should be the decree ?
2. The plaintiff in support of his claim examined himself and one Fazle Raheem Farooqi in addition to production of certain documents, whereas defendants Nos. 2 and 3 examined one Syed Jalaluddin Akbar, the Regional representative of defendant No, 2 and produced certain documents.
3. Before taking up the above issues, it may be pertinent to mention that Mr. Muneer Malik learned counsel for the plaintiff did not press the above issue No,
3. Consequently we are left with the question of Oil Tanker allowance and overtime allowance covered by issue No,
1. It may be pertinent to take up issue Nos. 1 and 2 together as they are inter-connected. The plaintiff has deposed that he was entitled to Oil Tanker allowance as was paid to the other Officers on board and so also the overtime allowance as he was watching the safety on the vessel with P. S. Bhatia, a second officer with him and performing the duties for twelve hours, whereas P. S. Bhatia was doing the same job for the remaining twelve hours. He has further deposed that the Chief Officer of the vessel used to maintain the deck log book where the entry of the job and the number of working hours performed by the employees used to be entered. He has also deposed that he had worked as a confirmed employee for nine months after the probationary period. He had requested the Master of the vessel to give him the service contract which was not given, nor he was paid the overtime allowance. He has also stated that when he did not receive the tanker allowance and overtime allowance, he requested the Master of the vessel to release him, but he refused to do so and then he returned to Karachi on 20th July, 1982. He has also stated that as he was not paid, he did not sign off the Pakistani Articles. Defendants Nos. 2 and 3 in the cross-examination attempted to bring on record the fact that the plaintiff was a Deck Cadet and had signed the Agreement Exh.
P/2 as such. It has also been suggested that Deck Cadets were not entitled to receive any allowances. PW-2 Fazle Raheem Farooqi was examined by the plaintiff as an expert witness. He has deposed that he has been serving in the Shipping Office for the last thirty-five years. He has also deposed that there is a practice for the payment of tanker allowance to the Seamen on Oil Tanker and also overtime allowance. He has also stated that there should be a record to be maintained at the vessel about the duties performed on board by the seamen and the number of hours of their duties and that such record is called Master's log Book. In his cross-examination, he has stated that he joined the Shipping Office as Upper Division Clerk and at the time of appearance as a witness, he was working as Deputy Shipping Master. He has also stated that he has never worked on a vessel and his deposition is based on the basis of experience and the record of the Shipping Master's Office.
4. DW-1 Syed Jalaluddin Akbar, who had appeared for the defendant No, 2 and was Regional representative as observed hereinabove, has deposed that he had joined Sea in 1958 as a Cadet and thereafter progressed in rank and rose to the position of a Captain and that he commanded the ship since 1968 to 1972. He has also deposed that he returned back to Pakistan in 1981. He has also stated that the plaintiff was not entitled to anything except what was mentioned in the letter of appointment Ex. P/1 and that a second Officer is uncertificated Officer under training. He has also stated that the word S. T. Means 'Steam Tanker' and that anybody joining S. T. Would be joining a Steam Tanker. He has also stated that the plaintiff was assistant to the Chief Officer and was employed on eight hours watches. He has also stated that the allowances claimed by the plaintiff were refused as the Master of the Vessel was not satisfied with the training of the plaintiff. However, in his cross-examination, he has stated that he was never in command of the vessel during the period the plaintiff was on board and that he was not aware to the exact number of hours of service of the plaintiff of each day. He also admitted that the watch on the vessel is observed round the clock. He has further admitted that he did not know who was regularly appointed as watchman on board. He has further admitted that an officer is entitled to overtime allowance if he is a certificated officer and mutually agreed upon and that it is not necessary to work for more than eight hours a day to be entitled to overtime.
5. After having dealt with the ocular evidence, it may be pertinent to advert to the documentary evidence. In this regard, reference may be made to above Exh. Pfl which is the letter of appointment. Reliance has been placed by Mr. Usmani, learned counsel for the defendants particularly on para, 6 which provides that 'no other written or verbal promises have been made to Mr. Rizvi. From para. 8 of the above letter of appointment, it is evident that on completion of probationary period of three months, a service contract was to be issued by the defendant No, 2 at Jeddah for a period of twelve months which was not done in the present case by the defendant according to DW-1 for the reason that that the same was out of print and was not necessary.
However, it has been urged by Mr. Muneer Malik that the above agreement would have indicated that the plaintiff was entitled to the allowances claimed by him as were paid to the other officers on board of defendant No, 1, the vessel. The other document is Exh. P/2 'Agreement for Foreign- going ships' signed by the plaintiff at Karachi. The third document is Exh. P/3 which is very pertinent.
It indicates that all the crew members on board were paid allowances or service bonus overtime allowance except the plaintiff Mr. V. K. A garwal, Chief Engineer and Mr. M. G. Metha, a cadet. It may be pertinent to mention that there were twenty personnel on board of the vessel indicated in the above Exh. P/3. Reference may also be made to Exh. P/4 which are wages account statements on the basis of which the plaintiff was paid by the defendant No,
2. This comprises of two sheets. One for the period from 1st July, 1982 to 22nd July, 1982 and the other for the period from 22nd July, 1982 to 27th July, 1982. It may be observed that Mr. Usmani, learned counsel for the defendants has relied upon the following remarks appearing in both the above sheets :- "Final balance to be paid by Oriental Commercial Est. Note : Remarks, if any to be typed on the reverse of this form"
' It was vehemently urged by him that since the above Exh. P/4 reflected the final balance payable to the plaintiff, he was not entitled to claim any amount particularly in view of the fact that he did not record any protest on, the back of the above document as he could have done.
6. Reference may also be made to Exhs. D/1 to D/4. Exh. D/1 indicates that the defendant No, 2 by their letter dated 6th December, 1981 declined to increase the salary 'of the plaintiff, whereas Exh.
D/2 is a letter from the plaintiff, dated 5th June, 1982 requesting for extension of service period till 28th September, 1982 as it was to expire on 19th July, 1982 in order to enable him to perform Holy Pilgrimage. It may be stated that Exh. D/3 is defendant No, 2's reply, dated 7th June, 1982 declining the plaintiff's request for extension whereas Exh. D/4 is defendant No, 2's letter to the Shipping Master, Government of Pakistan in relation to the claim made b) the plaintiff which was inquired into by the office of the Shipping Master, Government of Pakistan.
7. It may be pertinent to point out that the plaintiff had filed an application bearing No, 200 of 1984 for the production of the following documents by the defendant Nos. 2 and 3.
(a) Pakistan Articles alleged to be signed by plaintiff on 19-7-1981.
(b) Salary Register showing all salary payments made to the Crew of S. T. Aoun Allah from 1-7-1981 until the time of deletion of the vessel from shipping registry.
(c)The log book maintained by the Master of the vessel S. T. Aoun Allah showing the number of hours worked by every crew member from 1-7-1981 to 20-7-1982.
(d) The originals of Annexures A-I, A-4, A-5, A-6, A-7, A-8, A-9 and A-10 filed by the plaintiff with his plaint.
(e)Copy of the appointment letter issued to the crew of S. T. Aoun Allah during the period from 1-7- 1981 to 1-7-1982.
(f) Overtime book of vessel.
' The defendants except the document mentioned at para. (a) did not produce any other document for the reasons stated by them in their affidavit, dated 24th July, 1984.
8. It has been vehemently urged by Mr. Muneer Malik learned counsel for the plaintiff that if the defendants would have produced the above documents, the same would have supported the plaintiff's case. It has been further urged by him that since the defendants have withheld the above documents, an adverse inference in terms of section 114 (g) of the repealed Evidence Act and in terms of section 129 (g) of the Kanoon-e-Shahadat Order, 1984 is to be inferred which provide that the evidence which could be and is not produred would, if produced be unfavourable to the person who withholds it. On the other hand, it was contended by Mr. Usmani, learned counsel for the defendants that since the defendant No, 1, the vessel was sold as scrap to the defendant No, 4 and as the suit was filed after the above sale, the defendant were not required to maintain the record of the suit vessel. In this regard, it may be pertinent to observe that the dispute between the plaintiff and the defendants Nos. 2 and 3 was the subject-matter of inquiry in the Office of Shipping Master, Government of Pakistan and, therefore, as a prudent businessman the above defendants were expected to maintain the record of the vessel which would have relevancy as to the nature and period of the plaintiff's duties. Be that as it may. It was then contended by Mr. Usmani that since the plaintiff has based his claim on the basis of custom or usage, the same has not been roved, inasmuch as PW-2 Fazie Raheem Farooqi cannot be treated as an expert witness for the reason that he had joined the service as an Upper Division Clerk in the office of the Shipping Master and had no experience on board of a vessel, whereas Mr. Muneer Malik has contended that since PW-2 had experience of thirty-five years and was dealing with the employment of the seamen and officers etc. He had the requisite qualification of being an expert to prove custom or usage. In my view the evidence of P.W. 2 can be relied upon in any case for the purpose of overtime allowance.
The factum that overtime allowance was paid by defendant No, 2 to all the members of crew except four, stands proved by Exh. P/3 referred to hereinabove. It may be pointed out that the plaintiff's statement that he had performed duties overtime, remained unrebutted, for the reason that D.W. 1 was unable to state about the duties on board of the vessel/ defendant No, 1 nor the above defendants have produced the documents which would have indicated the nature and the period of duties of the plaintiff. D.W. I has also admitted the factum of paymert of overtime allowance to the other members of the crew. I am inclined to hold that para. 6 of the appointment letter Exh. P/1 does not disentitle the plaintiff to claim. In the present case, since the plaintiff was employed on an Oil Tanker namely S. T. Aoun Allah, which is evident from the letter of appointment, in my view, he is not entitled to claim Oil Tanker allowance in the absence of any express terms in the letter of appointment. The plaintiff had the knowledge of the fact that he was to work on an Oil Tanker and if he wanted to claim anything in addition to what was mentioned in the letter of appointment, he should have got it incorporated in the above letter of appointment. However, he cannot be denied the overtime allowance Ns observed hereinabove, that the evidence of the plaintiff that factually he was doing overtime duties, remains unrebutted. I am inclined to hold that even a seaman is not obliged to perform duties C more than what are the normal duties and in case, he is made to work more than the normal duties, there is an implied agreement apart from any custom or usage, that he would be paid overtime allowance. As pointed out here above, that Exh. P/3 itself indicates that the defendant No, 2 had paid overtime allowance to all the members of the crew on board the vessel in question except to four persons.
' I am also inclined to hold that Exh. P/4 containing the above quoted remarks namely final balance to be paid does not constitute the acceptance of payment by the plaintiff in full and final settlement of his claim. This exhibit reflects the amount of payment which was admitted by the defendant No,
2. The above document does not constitute either a waiver or estoppel against the plaintiff as to his right to claim overtime allowance.
9. In view of the above discussion my finding on issue No, 1 is that the plaintiff is entitled to overtime allowance, whereas my finding on issue No, 2 is in the negative, with the result that under issue No, 4, I decree the suit in Pak rupees equivalent to U. S. Dollars 1,520.1 at U. S. Dollars 168.3 per month for nine months to be converted on the basis of rate of foreign exchange prevalent on the date of payment and 9% interest thereon from the date of the suit till the payment, without costs. The other claims of the plaintiff are rejected.