S.V. Maruthi, J.
1. This Writ Appeal arises out of a judgment in W.P.Nos. 3697/90 and 3698/90. The Union of India represented by its Secretary, Ministry of Shipping and Transport is the appellant. The respondent filed a writ petition seeking a direction to the Central Government to constitute a Tribunal Under Section 150(1) of the Merchant Shipping Act, 1958 (in short 'the Act') and refer the dispute between the Seamen and the employer to the Tribunal so constituted. The writ petition came up before a learned single Judge who allowed the same following the judgment in W.P.No. 4270/1981dt. l3-10-1977.
2. Following the judgment in W.P.No. 4270/1981, the learned Single Judge directed for constitution of a tribunal Under Section 150(1) of the Merchant Shipping Act. At this stage, it is necessary to refer to the facts and circumstances under which the learned Single Judge in W.P.No. 4270/1981 directed to constitute a Tribunal Under Section 150 of the Merchant Shipping Act (in short 'the Act'). The Union Carbide of India Ltd., Visakhapatnam employed 12 fishermen besides the skipper mate etc., on the fishing trawlers owned by them. A dispute arose between the Union Carbide India Ltd. and the 12 fishermen employed by them. The matter was referred to Industrial Tribunal. The Union Carbide India Ltd. relying on Section 150 of the Act raised a preliminary objection stating that the Industrial Disputes Act has no application and the dispute is to be decided only by a Tribunal constituted by the Central Government for the said purpose. The Industrial Tribunal overruled the preliminary objection raised by the Union Carbide of India Ltd. Therefore, the Union Carbide of India Ltd., filed a writ petition which was dismissed. In the writ appeal filed by the Union Carbide of India Ltd., the learned Judges directed the Industrial Tribunal to consider whether the employees concerned have been employed or engaged as members of the crew under the Act in which case the Industrial Tribunal will have no jurisdiction to hear the dispute. Pursuant to the directions issued by the learned Judges, the Industrial Tribunal passed an order holding that the 12 fishermen employed by the Union Carbide are 'seamen' within the meaning of Section 3(42) of the Act and therefore, the dispute should be referrd to a Tribunal constituted Under Section 150(1) of the Act as the disputes are not governed by the Industrial Disputes Act, 1947. Aggrieved by the decision of the Industrial Tribunal the employees filed W.P.No. 4270/81 which was disposed of by a learned Single Judge directing the Central Government to constitute a Tribunal Under Section 150(1) of the Act and referring the dispute for adjudication.
3. Following the judgment in W.P.No. 4270/81 the learned single Judge directed the Central Government to constitute a Tribunal Under Section 150(1) of the Act in the present case also. Aggrieved by the judgment of the learned single Judge, the present writ appeal is filed.
4. The learned Standing Counsel for the appellants contended that the present case relates to the persons working on the fishing boats and Part XV-A of the Act regulates the registration and maintenance and other allied matters connected with fishing boats. Under Part XV-A the Central Government is empowered to issue a notification applying the other provisions of the Act other than the provisions under Part XV-A. In the absence of a notification applying the other provisions of the Act to fishing boats, Section 150(1) of the Act is not applicable to persons working on fishing boats. Therefore, the dispute between the respondents and the. appellant cannot be referred to a Tribunal constituted by the Central Government Under Section 150 of the Act. The counsel distinguished the judgment in W.A. No. 254/1976 on the ground that it interpreted the provisions of the Act as they existed prior to the amendments issued in 1983 and the judgment is not relevant. By virtue of the amendment, Part XV-A was introduced in 1983. After introduction of Part-XV-A in the absence of notification issued Under Section 435V applying the other provisions of the Act, Section 150 of the Act is not applicable to fishing boats. If the other provisions of the Act are not applicable to the fishing boats, no direction can be issued to the Central Government directing them to constitute a Tribunal for the purpose of resolving the dispute. In the alternative it is contended that the respondents are not 'seamen' within the meaning of the Act and therefore, Section 150 of the Act is not applicable and so the direction issued by the learned Judge directing the Union of India to constitute a Tribunal Under Section 150(1) is contrary to the provisions of the Act.
5. We are examining the issue independently without any reference to the judgment in W.P. No. 4270/81 as it was rendered prior to the introduction of Part XV in the Act in 1983. To consider the argument of the learned counsel for the appellant, it is necessary to refer to Section 435-V which reads as follows:
Application to Indian fishing boats of other provisions relating to ships:
'The Central Government may, by notification in the Gazette, direct that any provisions of this Act other than those contained in this part which do not expressly apply to Indian fishing boats shall also apply to Indian fishing boats subject to such conditions, exceptions and modifications as may be specified in the notification.'
It says that the Central Government may by notification direct that any provisions of the Act which do not expressly apply to Indian fishing boats shall also apply to Indian fishing boats subject to such conditions etc. In other words, it enables the Central Government to apply any other provisions of the Act which do not expressly apply to fishing boats by a notification. To put it differently, if the other provisions of the Act expressly say that those provisions are not applicable to Indian Shipping (sic. fishing) boats, then the Central Government is empowered to issue notification extending those provisions of the Act to fishing boats. Therefore, it is to be seen whether Section 150 of the Act is one such provision which expressly excludes its applicability to fishing boats. It reads as follows:
Section 150: Power to refer disputes between Seamen and their employers to Tribunals:
(1) Where the Central Government is of opinion that any dispute between Seamen or any class of Seamen or of any union of seamen and the owners of ships in which such seamen are employed or are likely to be employed exists or is apprehended and such dispute relates to any matter connected with or incidental to the employment of the seamen, the Central Government may, by notification in the official gazette, constitute a tribunal consisting of one or more persons, and refer the dispute to the tribunal for adjudication.'
It does not appear from a reading of Section 150 that it expressly excludes its applicability to fishing boats. There is no express exclusion of the applicability of the section to fishing boats. Therefore, there is no substance in the contention of the learned counsel for the appellant that in the absence of notification Under Section 435-V, Section 150 is not applicable to fishing boats.
6. The next contention of the learned Counsel for the appellants is that the petitioners are not 'Seamen' within the meaning of Section 150 of the Act. To the writ petition, a list of employees-petitioners in the writ petition and respondents in the writ appeal is annexed. It consists of Engineers, skippers and Bosuns. It is not disputed that these petitioners are employed on fishing boats belonging to the various owners. The expression 'Seaman' is defined Under Section 3(42) of the Act. It reads as follows:
'Seaman' means every person (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship under this Act, but in relation to Sections 178 - 183 (inclusive) includes a master.'
Section 3(45) of the Act defines a ship and it reads as follows: 'Ship' does not include a sailing vessel'. Section 3(39) defines a sailing Vessel which is as follows:
Section 3(39):
'Sailing Vessel' means any description of vessel provided with sufficient sail area for navigation under sails alone, whether or not fitted with mechanical means of propulsion, and includes a rowing boat or canoe but does not include a pleasure craft.
'A vessel is defined Under Section 3(55) and it reads:
Section 3(55): ''Vessel' includes any ship, boat, sailing vessel or other description of the vessel used in navigation.'
Seaman, therefore, is a person employed or engaged as a member of the crew of a ship and a ship does not include a sailing vessel. A sailing vessel is a vessel provided with sail area for navigation under sails alone, whether or not fitted with mechanical means of propulsion and includes a rowing boat or a canoe, but does not include a pleasure craft; a vessel includes any ship, boat, sailing vessel or other description of vessel used in navigation. Admittedly a fishing boat is not a sailing vessel, but is a vessel. Since a vessel includes a ship a fishing boat is a 'ship' within the meaning of Section 3(45) and therefore, prima facie the respondents are employed as members of the crew in the ship. Therefore, the learned Judge is right in directing the appellant to constitute a Tribunal Under Section 150(1) of the Act.
7. It is true that Under Section 435-V, the Central Government is empowered to issue notification extending the other provisions of the Act other than fishing boats, where the other provisions of the Act expressly exclude the applicability of those provisions to fishing boats. The mere fact that it empowers the Government to issue notification applying the other provisions of the Act does not mean that in the absence of notification the other provisions of the Act are not applicable. It depends on the language used in the other provisions of the Act. If there is express exclusion excluding the applicability of the provisions to fishing boats then only those provisions do not apply. In the absence of language excluding the applicability of those provisions to fishing boats, those provisions are applicable to fishing boats.
8. In any view of the matter, it cannot be said that Section 150 is not applicable to the respondents and therefore, the directions issued by the learned Judge cannot be said to be incorrect. Therefore, there are no merits in the writ appeal and it is accordingly dismissed. No costs. The time for the constitution of the Tribunal is extended upto the end of November 1996.