Kerala High Court
K.D.Devarajan vs The Director General on 22 January, 2020
Bench: K.Vinod Chandran, V.G.Arun
WA.768 & 784/18 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941
WA.No.768 OF 2018
AGAINST THE ORDER/JUDGMENT IN WPC 1086/2018 OF HIGH COURT OF
KERALA
APPELLANT/S:
1 K.D.DEVARAJAN
S/O. LATE K.K DANDAPANI, AGED 55 YEARS,
PALLATHUPARAMBIL HOUSE, PANJIKKARA, MULAVUKADU P.O,
COCHIN 682 504(WORKING AS SARANG LASCAR)HEAD
QUARTERS, COAST GUARD DISTRICT NO. 4,KOCHI 4
2 D.WINSTON
S/O. LATE DENNISON, AGED 55 YEARS,MALIKKAL HOUSE,
MUNDAMVELI P.O, COCHIN 682 507(WORKING AS LASCAR I
CLASS)HEAD QUARTERS, COAST GUARD DISTRICT NO.
4,KOCHI 4
3 VIJESH K
S/O. SHRI.KESAVAN, CHETTIKKATHU, KIZHAKKETHIL,
VALLIKUNNAM -P.O,ALEPPY-690 501(WORING AS LASCAR I
CLASS)HEAD QUARTERS, COAST GUARD DISTRICT NO. 4,
KOCHI-4
4 SHASHI KUMAR OJHA
S/O. BAYAJI OJHA, C/O. PRADEEP P. RAJAN,XII/569/C
UPSTAIRIIND FLOOR, KOCHIN BAKEERY & CHIPS,NEAR
PANDIKUDY BUS STOP[,COCHIN 682 002(WORKING AS
LASCAR I CLASS)HEAD QUARTERS,COAST GUARD DISTRICT
NO. 4,KOCHI 4
BY ADV. SRI.T.SANJAY
RESPONDENT/S:
1 THE DIRECTOR GENERAL
COAST GUARD HEADQUARTERS, NATIONAL STADIUM COMPLEX,
NEW DELHI 100 001
WA.768 & 784/18 2
2 DISTRICT COMMANDER
HEADQUARTERS, COAST GUARD DISTRICT NO.4C/O. FLEET
MAIL OFFICE, KOCHI 682 004
3 THE COMMANDANT
HEADQUARTERS, COAST GUARD DISTRICT NO. 4C/O. FLEET
MAIL OFFICE, KOCHI 682 004
4 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,MINISTRY OF DEFENCE,
SOUTH BLOCK,NEW DELHI 100 001
R1 BY ASSISTANT SOLICITOR GENERAL
R1-4 BY SRI.SUVIN R.MENON, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2019,
ALONG WITH WA.784/2018, THE COURT ON 22-01-2020 DELIVERED THE
FOLLOWING:
WA.768 & 784/18 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941
WA.No.784 OF 2018
AGAINST THE ORDER/JUDGMENT IN WPC 1085/2018 DATED 02-03-2018 OF
HIGH COURT OF KERALA
APPELLANT/S:
1 T.J. JOSEPH
WORKING AS ENGINE DRIVER, COAST GUARD DIST.NO.4,
KOCHI - 4, RESIDING AT THYPADATHU HOUSE, 18/1890,
PALLURUTHY P.O., COCHIN - 682 006.
2 P.M. VALSAN
WORKING AS ENGINE DRIVER, COAST GUARD DIST.NO.4,
KOCHI - 4, RESIDING AT PATTATHIL HOUSE, KADAVANTHRA
P.O., COCHIN - 682 020.
BY ADVS.
SRI.T.SANJAY
SRI.R.REJI KUMAR
RESPONDENT/S:
1 THE DIRECTOR GENERAL, COAST GUARD HEADQUARTERS
NATIONAL STADIUM COMPLEX, NEW DELHI - 100 001.
2 DISTRICT COMMANDER
HEADQUARTERS, COAST GUARD DISTRICT NO. 4, C/O.FLEET
MAIL OFFICE, KOCHI - 682 004.
3 THE COMMANDANT
HEADQUARTERS, COAST GUARD DISTRICT NO. 4, C/O.FLEET
MAIL OFFICE, KOCHI - 682 004.
4 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI - 100 001.
WA.768 & 784/18 4
R1-4 BY SRI.SUVIN R.MENON, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2019,
ALONG WITH WA.768/2018, THE COURT ON 22-01-2020 DELIVERED THE
FOLLOWING:
WA.768 & 784/18 5
K.VINOD CHANDRAN & V.G.ARUN, JJ.
-----------------------------------------------
W.A.No.768 and 784 of 2018
-----------------------------------------------
Dated this the 22nd day of January, 2020
JUDGMENT
Arun, J.
The writ appeals are filed against a common judgment. W.A No.784 of 2018 is against the judgment in W.P(C).No.1085 of 2018. W.A.No.768 of 2018 is from W.P.(C).No.1086 of 2018. The appellants/writ petitioners were/are working as Engine Drivers and Sarang Lascar in the Indian Coast Guard. Under movement order dated 9.1.2018, impugned in the writ petitions, the appellants were deployed for temporary duty to Kavaratti Island, Union Territory of Lakshadweep, on-board the Barge ICG AB Urja Shrota. The challenge was mainly on the ground that the appellants were deployed without considering the fact that they were not qualified or competent to work on-board ICG AB Urja Shrota, an auxiliary barge weighing more than 325 tonnes and having engines of 850 BHP. According to the appellants, they WA.768 & 784/18 6 were trained and equipped to work in much smaller vessels and the compulsion to work on board a huge Barge, would put their life to peril. Yet another contention was regarding violation of the international covenants, which mandated deployment of only qualified personnel on-board seagoing vessels.
2. In elaboration of their contentions, the appellants had submitted that after a brief training at the Shoft Shipyard in Baroch, Gujarat, where the ICG AB Urja Shrota was built and commissioned, the appellants along with Coast Guard officers had brought the Barge from Gujarat to Kochi. Thereafter, when decision was taken to rebase ICG AB Urja Shrota to Kavaratti and to deploy the appellants on-board the vessel for temporary duties during the voyage from Kochi to Kavaratti and while the Barge was on for re-fuelling duties in and around Kavaratti port, representations were submitted requesting to desist from such illegal action. The representations having evoked no response, the writ petitions were filed, contending that, competency of the appellants as Engine Driver and Lascar was only in respect of small vessels plying within the port area and not to navigate a huge Barge to Kavaratti, covering a distance of 208 nautical miles WA.768 & 784/18 7 through the high seas. Reliance was placed on the provisions of the Merchant Shipping Act and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (for short, 'STCWC'), to contend that, personnel without the requisite qualifications and certificate of competency shall not be engaged to work on-board a seagoing vessel.
3. The respondents opposed the contentions and submitted that the Indian Coast Guard is entrusted with the task of ensuring the security of the Maritime Zones of India and protecting national interest. The ICG AB Urja Shrota was being rebased to Kavaratti in order to meet the fuelling requirements of FPVs/IBS, patrolling the waters around the Lakshadweep Islands. It was hence contended that the impugned movement order was issued in public interest and does not warrant interference in exercise of jurisdiction under Article 226 of the Constitution of India. It was submitted that there would be a qualified team comprising of two officers, two subordinate officers and four enrolled personnel with technical background and know how in the respective field to navigate the Barge and that, in order to ensure safety of the Barge and its crew, a Coast Guard WA.768 & 784/18 8 Ship, ICGS Samarth, was slotted to escort ICG AB Urja Shrota from Kochi to Kavaratti. That, the work of the appellants and other civilian crew was only to assist the qualified team. That, the appellants had been given training at the Shoft Shipyard from 14.2.2017 to 6.5.2017, for adequately familiarising them with the working of the Barge, so as equip them to assist the qualified crew on board the Urja Shrota. It was contended that the provisions of the Merchant Shipping Act or the conditions mentioned in the International Covenants are not applicable for the Coast Guard, in view of the specific exemptions.
4. The learned Single Judge, after elaborate consideration of the relevant provisions of the Merchant shipping Act and the contention of the respondents that the Barge would be in the independent charge of an Assistant Commandant having full Coast Guard Watch keeping Certificate and that the covenants of STCWC do not apply to seafarers serving on warships, naval auxiliaries or other Government operated ships engaged in non- commercial service, set at naught the challenge against being sent on-board, on the ground of want of competency/training as provided in the STCW Convention. The respondents were WA.768 & 784/18 9 however directed to ensure that safety measures as well as the mandatory requirements of the STCW Convention are observed as far as possible and that the appellants assigned with the duty of only assisting the qualified and competent persons on-board the Urja Shrota and not compelled to operate the Barge or to do anything for which they are not qualified and competent. Based on the said findings and observations, the writ petition was disposed of.
5. The challenge against the impugned judgment is against the finding that the STCW Convention is not applicable to ICG AB Urja Shrota, the vessel being an auxiliary vessel of the Coast Guard. It is contended that the Maritime Zone around the Lakshadweep Islands being the high seas, the respondents are bound to comply with the mandate of STCW Convention. In support of the contention, reliance is placed on Ext. P12 notice (the exhibits are referred to herein as described in W.P(C).No.1085 of 2018) issued by the Ministry of Shipping, prescribing the procedure for obtaining Certificate of Competency(Limited) under Regulation II/2 STCW Convention, for Indian Naval Officers who have served in the Executive WA.768 & 784/18 10 Branch of Defence. Yet another ground is that the appellants, who are civilian employees, are not insured for voyage on sea or working in a seagoing ship, whereas the uniformed officers and sailors are insured for amounts of Rs.75 lakhs and Rs.37.5 lakhs respectively. It is pointed out that the insurance coverage of the appellants under the Central Government Group Insurance Scheme is only for a paltry amount of Rs.30,000/-.
6. The issue emerging for consideration in the appeals is as to whether the provisions of the Merchant Shipping Act and the STCW Convention are stricto senso applicable to the auxiliary vessels of the Indian Coast Guard and if so, whether the appellants would fall within the definition of 'seamen' or 'seafarers', as defined under the Merchant Shipping Act.
7. For considering the issue, we have to first look at the relevant provisions of the Merchant Shipping Act. Section 2 of the Act makes its provisions applicable to any vessel which is registered in India or any vessel which is required by the Act to be so registered. 'Seaman' is defined under Section 3 (42) as any person (except the master, pilot or apprentice) employed or WA.768 & 784/18 11 engaged as a member of the crew of a ship under the Act. As per Section 3 (41) 'Seagoing' in relation to a vessel, means a vessel proceeding to sea, beyond inland waters or beyond waters declared to be smooth or partially smooth by the Central Government by notification in the official gazette. Vessel has been defined under Section 3 (55) to include any ship, boat, sailing vessel, or other description of vessel used in navigation. Section 73 dealing with the registration of Government ships stipulates that the Government may, by notification in the official gazette, direct registration of ships belonging to the Government, other than ships of the Indian Navy to be registered as Indian Ships, subject to such rules as may be made in this behalf. Section 75 A falling in Part VI dealing with certificate of officers defines "convention" to mean the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended from time to time. Under Section 76 of the Merchant Shipping Act, every Indian ship, when going to sea from any port or place, shall be provided with officers duly certified under the Act. Section 78 provides for certificate of competency in accordance with the provisions of the Act to be WA.768 & 784/18 12 granted to Masters, first and second mates, Engineers etc. of different kinds of ships. Under Section 88 A (d) 'seafarer' means any person who is employed or engaged or works in any capacity on board a sea going ship, but does not include-
(i) the employment or engagement or work on board in any capacity of any person in a ship of war;
or
(ii) any Government ship used for military or non-
commercial purposes.
8. Part VII of the Act contain provisions dealing with classification of seaman, seafarer, maritime labour standards and prescription of minimum manning scale.
9. From the provisions aforementioned, it is clear that the ships/vessels belonging to the Indian Coast Guard are liable to be registered under the Act and consequently, the provisions of the Act would apply to all activities of the ship, including the terms and conditions of employment of its crew and officers.
10. The first question is as to whether the ICG AB Urja Shrota is a 'seagoing vessel' or not. Seagoing vessel is defined under Section 34(1) to be a vessel proceeding to sea beyond inland waters or beyond waters declared to be smooth or partially WA.768 & 784/18 13 smooth waters by the Central Government by notification in the official gazette. The term 'inland waters' is not defined in the Merchant Shipping Act. In the Territorial Waters, Continental Shelf, Exclusive Economic Zone And other Maritime Zones Act, 1976 (the Act of 1976), the territorial waters, the continental shelf and the exclusive economic zone are defined. The limit of the territorial waters being the line, every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline. The contiguous zone stretches up to a distance of 24 nautical mile from the baseline and the continental shelf up to a distance of 200 miles. The term 'inland waters' not being defined under the Act of 1976, meaning of the term as available from the United Nations Convention on the Law of the Sea is taken for guidance. Under Article 8 of Part II of the Convention, 'internal waters' is described as the waters on the landward side of the baseline of the territorial sea. As per Article 6, in the case of islands situated on atolls or islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef. As such, 'inland waters' as far as the Lakshadweep islands is concerned, WA.768 & 784/18 14 would be the waters from the landward side of the baseline, the baseline being the fringing reefs. In that view of the matter the lagoon in Lakshadweep would fall within the meaning of 'inland waters'. Therefore, if the ICG AB Urja Shrota is anchored inside the Lakshadweep lagoon at all times and used for re-fuelling inside the port, it cannot be termed as a seagoing vessel. But, even according to the respondents, the vessel supplies fuel/water to ships at anchorage outside the port, at least on certain occasions. Therefore, the contention that the provisions of the Merchant Shipping Act is not applicable to the ICG AB Urja Shrota on the premise that it is not a seagoing vessel, cannot be accepted.
11. The next contention to be addressed is regarding the requirement of Certificate of competency to be obtained by all personnel on board a seagoing vessel. Under Section 78, the requirement of obtaining certificates of competency is limited to the officers, viz, masters, mates, engineers etc. Exhibit P12 also deal with the procedure for obtaining certificate of competency as 'Master of a Home-Trade Ship (below 3000 gross tonnage) limited to service on the coast of India and its surrounding exclusive WA.768 & 784/18 15 economic zone on offshore support vessel' under STCW 95 for serving/retired Indian Naval Officers. Obviously, the appellants do not fall within the category of Master of Home-Trade Ship. Therefore, Exhibit P12 cannot be pressed into service in support of the contention that the deployment of the petitioners on board the Urja Shrota is in violation of the Standard Operating Procedure.
12. The next question is as to whether the appellants can be termed as either 'seamen' or 'seafarers'. To be termed as 'seamen', the appellants should be employed or engaged as a member of the crew of the ICGS Urja Shrota. Such engagement can only be on the basis of an agreement between the 'Master of the ship' and the 'Seaman', as provided under Section 100 of the Act. The appellants do not have a case that they had entered into any such agreement. On the contrary, the specific contention is that they were sent on board the Urja Shrota based on the impugned movement order. Hence, it can unhesitatingly be held that the appellants do not fall within the definition of 'seamen'. Going by the meaning of the term 'seafarer', any person employed or engaged or working in any capacity on board WA.768 & 784/18 16 a seagoing would be a seafarer. But, there is a specific exclusion of persons employed or engaged or working on board in any capacity in a ship of war or any Government ship used for military or non-commercial purpose, from the definition. The ICG AB Urja Shrota being a Government vessel used for the purpose of re-fuelling of boats/ships/vessels of the Coast Guard, which is a non-commercial purpose, the appellants stand excluded from the definition of 'seafarer' under the Act.
13. The other contention urged is regarding the binding nature of the STCW contention and other international treatises. The learned counsel for the appellants contended that Article 51(c) of the Constitution of India, makes it obligatory for the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another. It is submitted that STCW Convention being an international treaty, the Government of India is under a constitutional obligation to give effect to the resolutions of the Convention. Reliance is placed on the decisions of the Apex Court in Aban Loyd Chiles Off Shore Limited v. Union of India [(2008) 11 SCC 439], T.M.Godavarman Thirumulpad v. WA.768 & 784/18 17 Union of India [(2012) 4 SCC 362], Commissioner of Customs v. G.M.Exports [(2016) 1 SCC 91] and International Confederation of Societies of Authors and Composers v. Aditya Pandey [(2017) 11 SCC 437], in support of this contention. Per contra, the learned CGC would submit that international treaties would not have the force of law unless and until they are enacted in the form of municipal laws. In support of this contention, reliance is placed on the decision of the Honourable Apex Court in State of Gujarat v. Vora Fiddali Badruddin Mithibarwala and others [AIR 1964 SC 1043]. The conspectus of judicial opinion emerging from the aforesaid decisions is that the international treaties/conventions can be looked into and enforced if they are not in conflict with the municipal law and can also be used to interpret municipal laws so as to bring them in consonance with the international law.
14. The STCW Convention of 1978 was convened with the desire to promote safety of life and property at sea and the protection of the marine environment by establishing a common agreement on the international standards of training, certification and watchkeeping for seafarers. Admittedly, India is a signatory WA.768 & 784/18 18 to the convention. Article III of the STCW Convention makes the resolutions of the Convention applicable to 'seafarers' serving on
-board seagoing ships entitled to fly the flag of a party, except to those serving on board specified categories of ships/fishing vessels/yachts etc. Category A among the exceptions under Article III takes in warships, naval auxiliaries or other ships owned or operated by a State and engaged only on Governmental non-commercial services. Thus, even going by the STCW Convention, the appellants who are engaged in a non- commercial vessel, cannot be equated with seafarers. Of course, even in spite of the exemption, parties to the convention are required to ensure that the persons serving on board such ships meet the requirement of the convention, so far as is reasonable and practicable, by the adoption of appropriate measures not impairing the operations or operational capabilities of the exempted ships/vessels.
15. The learned counsel for the appellants put forward a contention that the Lakshadweep Islands is situated in the high seas. The learned CGC countered the argument with the submission that the ICG AB Urja Shrota is in the category of an WA.768 & 784/18 19 axillary support vessel and like any work boat in the Coast Guard, is used only for supporting the operations of a commissioned coast guard ship in the coastal waters and areas close to the coast and therefore, engagement of the appellants on-board the Barge does not violate the Standard Operating Procedures. It was also submitted that the primary purpose of the Barge is to supply fuel and water to coast guard ships berthed exclusively within the harbour and in exceptional cases to ships at anchorage. A further submission was made that ICG AB Urja Shrota is berthed inside the lagoon at Kavaratti Port and is expected to operate only within the close proximities to the coast and inside the lagoon.
16. The segregation of the seas surrounding the Indian subcontinent is provided as per the Territorial Waters, Continental Shelf, Exclusive Economic Zone And other Maritime Zones Act, 1976. Section 2 of the Maritime Zones Act describes the limit in relation to the territorial waters, continental shelf, the exclusive economic zone or and other maritime zones of India to be the limit of such waters, shelf, or zone with reference to the mainland of India as well as the individual or composite groups or WA.768 & 784/18 20 groups of islands constituting part of the territory of India. Therefore, like the mainland, the waters around the Lakshadweep islands also fall under different maritime zones like territorial waters, continental shelf, exclusive economic zone etc. and hence the contention to the contrary raised by the learned counsel for the appellants is rejected.
17. The contention regarding absence of adequate insurance coverage is liable to be rejected for the reason that the indemnification under a contract of insurance is for the employer and even in the absence of such indemnification the employer is liable to compensate the employee or his legal representatives, as the case may be, for the loss/injury sustained during the course of employment.
18. Having answered the contentions as above, we notice the directions in the impugned judgment for ensuring the safety measures as well as the mandatory requirements in the convention are observed as far as possible, as required in Exhibit P12 notice. The respondents are also required to ensure that the appellants are not in any way assigned duties to take control of the ship/barge and that they shall be assigned the duty of only WA.768 & 784/18 21 assisting the qualified and competent persons on board ICGS AB Urja Shrota and not compelled to operate the Barge or do anything for which they are not qualified or competent. The fact that the submission of both Counsel that, the appellants were not compelled to be onboard the Urja Shrota during its voyage from Kochi to Kavatatti and instead, were permitted to travel on passenger ships is another relevant fact. The interest of the appellants having thus been safe guarded, we see no reason to interfere with the impugned judgment.
In the result the writ appeals are dismissed. No order as to costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vgsx