Orissa High Court
Smt. Gitanjali Meher vs The Union Of India And Others ...... ... on 27 October, 2022
Bench: S. Talapatra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No. 21 of 2019
Smt. Gitanjali Meher ...... Petitioner
Mr. A.K. Mishra, Advocate
-versus-
The Union of India and Others ...... Opposite Parties
Mr. U.R. Jena, CGC
CORAM:
JUSTICE S. TALAPATRA
JUSTICE SAVITRI RATHO
ORDER
27.10.2022 Order No.
07. 1. This matter is taken up through hybrid mode.
2. Heard Mr. A.K. Mishra, learned counsel appearing for the Petitioner and Mr. U.R. Jena, learned Central Government Counsel appearing for the Union of India.
3. The petitioner's son, namely, Siddharth Meher who hailed from Sambalpur, Odisha was working as the Deck Cadet in a vessel/ship which is owned by the Respondent No.9. On 10.09.2018 Sidharth Meher along with other persons from different countries sailed for Russia. It has been stated by the Petitioner that on 21.01.2019 when the ship was sailing near about 150 K.M. away from Kerch Strait Marine Casualty at Russia the ship was blasted due to leakage of LPG Gas during ship to ship fuel transfer. Names of the tow ships are MAESTRO and CANDY having specific IMO number. All the employees, according to the Petitioner, tried to escape by 2 way of jumping into the deep sea with life jacket and according to information her son also jumped into the sea as per the instruction of the authority with life jacket. Those who were rescued alive, according to the Petitioner, had stated that they had seen Siddharth Meher floating on the sea. Under these premises, this writ petition has been filed urging this Court for giving direction by way of issuing a writ of habeas corpus to the Union of India-Opposite Parties, in particular, to rescue Siddharth Meher.
4. Mr. U.R. Jena, learned Central Government Counsel has submitted that the Union of India and its Officers have filed two counter affidavits. One has been filed on 10.06.2019 and another was filed on 16.01.2022. Mr. Jena, learned Central Government Counsel, having relied on the averments of those counter affidavits has submitted that, all possible initiative have been taken to trace out the petitioner's son. Even through the diplomatic channel, the concerned Maritime Operator of the Government had been persuaded to collaborate to find out the missing son of the petitioner. Whenever, the Petitioner or any relative of Siddharth Meher contacted with the concerned officer of the Maritime Operations, particularly, with the Director General of Shipping Office and the Director General, National Maritime Search and Rescue Coordinating Authority, they were informed the result of search.
35. In the counter affidavit filed on 16.01.2022, the Opposite Parties No.1 to 4 have averred thus:
"2. That in compliance to Paragraph-7 of the Hon'ble Court's Order dated 30.11.2021, the following facts submitted for kind perusal of this Hon'ble Court:
3. That the protocol followed by the Directorate when an Indian seafarer goes missing abroad in an accident is as under:
2.1. As per Rule 5 (j) of Merchant Shipping (Recruitment and placement of seafarers) Rules, 2016, the recruitment and placement of Seafarers (RPS) (Copy enclosed as ANNEXURE-A/1), service provider reports the incident or casualty on board causing injury or death disappearance, loss overboard or homicide by or of an Indian National to the Director General of Shipping at the earliest and not later than four hours of the receipt of such information;
2.2 To gather more information if required from the RPS;
2.3 To take up the matter with the Indian Mission and requesting them for providing necessary assistance as required in the matter;
42.4 To contact the Flag State and Port States to carry out Marine Safety investigation in accordance with the International Convention on the Laws of the Sea (UNCLOS) and Casualty Investigation Code of International Maritime Organization (IMO) and to furnish the investigation report.
3. That, on 22.01.2019, the communication centre (DG Comcentre) of Directorate General of Shipping (DGS), Ministry of Shipping, Govt. of India, Mumbai received initial information from local recruitment agent M/s/ Nimbus Maritime Services Pvt. Ltd. about an incident of fire/explosion on the Tanzanian flagships LPG/C CANDY and LPG/C MAESTRO, during ship-to- ship cargo operation, located at south Part of Kerch Strait, Outer Port Limited (OPL), Black Sea, Russia on 20.01.2019 at 1700 hrs LT.
4. That, at the time of occurrence of explosion/fire, the vessel 'LPG/C Candy', had a complement of 17 seafarers, that include 8 Indians & 9 Turkish nationals and vessel LPG/C Maestro had a complement of 15 seafarers, that includes 8 Indians and 7 Turkish nationals.
5. That, upon receipt of the information, the Directorate has initiated following action:
55.1. The Directorate contacted Indian Embassy Office, Moscow, Russia to obtain updated information of the incident. The Directorate General of Shipping (DGS) requested Maritime Rescue Coordination Centre (MRCC) Mumbai to liaise with their counterpart at Russian Federation for update on Search and Rescue (SAR) operation.
MRCC Mumbai requested MRCC Moscow to extend all necessary assistance for SAR of the missing Indian Nationals.
5.2. In response, the authorities, Novorossiysk Moscow informed that-during SAR operation, the authorities had safely rescued 12 crew members, recovered 10 dead bodies and 10 crew members have been reported missing and informed that SAR operation continued by the authorities.
5.3. On 23.10.2019, MRCC Mumbai received an information/update from MRCC, Moscow communicating the Directorate, the list of crew members that had been rescued, bodies recovered and missing from both the vessels.
5.4. Further, the Indian Embassy, Moscow issued Press release on 23.01.2019, updating the status of deceased, rescued and missing Indian sea men. The emergency contact details of the Directorate 6 and Embassy of India in Moscow were provided for assistance and update on continuing efforts made by authorities to locate missing seafarers.
5.5 Having concern about the missing Indian seamen from both the vessels the MRCC Mumbai, on 25.01.2019 further requested MRCC Novorossiysk, Moscow to extend all necessary assistance to intensify their efforts for Search and Rescue (SAR) of the missing Indian nationals. In response, MRCC Novorssivsk, Moscow, informed that fire on board the vessel and SAR operation is still continued.
6. That, on 25.01.2019, the Indian Consulate Russia, informed to this Directorate that:
6.1 No more missing Indians from the two vessels (MAESTRO and CANDY) were found, despite the intensive search and rescue mission conducted by them from 21.01.2019 to 25.01.2019. The SAR mission covered 4200 square miles by aircraft and 630 square miles of the Black Sea by sea vessels.
6.2 Russian side had put considerable resources and manpower during the five-day search and rescue mission which was completed on 25.01.2019.7
6.3 Upon request of the Directorate, the Russian side altered all ships passing this area in the Black Sea, every four hours to see if they can spot any survivors.
6.4 In accordance with sheet N-14 of the international Manual on Aviation and Maritime Search and Rescue, Volume 2, the Russian side was of the opinion that the chances of survival in sea water without protective equipment at a temperature of + 8 degrees, is less than three hours.
6.5 The continuance of blaze on board the two ships had further prevented rescue teams to board the vessels.
6.6 The Directorate General of Shipping on 25.01.2019 requested the Zanibar Maritime Authority, Zanzibar, Tanzania being flag state administration and substantially interested authority, to conduct a marine safety investigation in accordance with the IMO casualty investigation code and also requests to co-ordinate with SAR operations and look into the matter.
7. That, having noted concern raised by MRCC Novorossiysk, Russia, on survival at sea for longer period in cold weather condition, this Directorate 8 requested the authorities of MRCC Novorossiysk, Russia to review the decision and continue search operation for further 48 hours over waters that may result in some findings and further requested to board the vessels for search of missing crew once the fire extinguished. In addition, the Directorate requested MRCC Mumbai, (Indian SAR Coordinator) to liaise with MRCC Novorossiysk, Russia to continue search operation. 7.1 Understanding the circumstances, climatic conditions, and probability of drifting of floating of Indian seafarers in the Ukrainian waters, this Directorate requested the Ukraine Seaport Authority, Odessa, to look into the matter for search of missing India seafarers, if any in their waters. The Directorate also requested them to transmit safety messages, warnings to ships for keeping sharp lookout for missing seafarers in their waters.
7.2 The Directorate General of Shipping also requested Ministry of External Affairs (MEA) to take up the matter with Tanzanian authorities through the Indian Embassy, Tanzanian to carry out further Search & Rescue Operation for missing Indian seafarers by Russian authorities.
98. That, the final list of rescued, deceased and missing seafarers as reported by authorities is as follows:
8.1 List of rescued Indian seafarers:
S. No Name Name of Vessel
1. Harish Jogi LPG/C Maestro
2. Sachin Jogi LPG/C Maestro
3. Ashis Ashok Nair LPG/C Maestro
4. Kamleshbhai LPG/C Candy
Gopalbhai Tandel
8.2 List of deceased Indian seafarers:
S. No Name Name of Vessel
1. Pinal Kumar LPG/C Candy
Bharatbhai Tandel
2. Vikram Singh LPG/C Candy
3. Sarvanan Nagarjan LPG/C Candy
4. Vishal Dod LPG/C Candy
Raja
5. Debarayana Panigrahi LPG/C Candy
6. Karankumar LPG/C Maestro
Haribhai Tandel
8.3 List of Missing Indian Seafarers:
S. No Name Name of Vessel
10
1. Sidharth Meher LPG/C Maestro
2. Neeraj Singh LPG/C Maestro
3. Sebastian LPG/C Maestro
Britto Breezlin
Sahayaraj
4. Rushikesh Raju Sak[a; LPG/C Candy
5. Akshay Baban Jadhav LPG/C Candy
6. Anandasekar Avinash LPG/C Maestro
8.4 Recruiting agent was advised to liaise with families/Next of Kin (NoK) and update on SAR operation carried out by the authorities into the incident. Upon instruction of the Directorate, recruiting agent had sent their representative to Moscow to expedite in transportation of mortal remains of Indian seafarers to India on 19.01.2019 to coordinate with local authorities and assist Indian Embassy, Moscow to expedite on transportation of mortal remains to home town in India.
8.5 After concerted efforts of Indian Embassy of Moscow, the Directorate and Ministry of External Affairs, New Delhi, the mortal remains of deceased have reached to India and NoKs performed last rites on 03.02.2019 & 04.02.2019.11
8.6 This directorate had taken up the matter with MRCC Moscow on 11.02.2019 and 13.02.2019, about the search operation to be carried out for the mission Indian inside the ships after doused the fire.
9. That the rescued seafarers arrived in India on 27.01.2019. This Directorate advised RPSL agent M/s Nimbus Maritime to instruct them to report this Directorate for briefing on 28.01.2019. M/s Nimbus Maritime informed that 02 crew members namely Mr. Harish Jogi and Mr. Ashish Nair sailed on vessel LPG/C MEASTRO will be reporting to DGS office on 28.01.2019. However, the remaining 02 survived crew members Mr. Sachin Singh (from LPG/C MEASTRO) and Mr. Tandel Kamleshbhai Gopalbhai (LPG/C Candy) mentioned that they were too tired to report to the Directorate and would report after a few days."
It has been also stated that after the incidence of explosion there was smoke in the accommodation, one rescued crew member namely Mr. Asish Nair noticed that the Second Officer was on the aft deck and some of the crew members had already jumped into the water and were floating some distance away from him. After noticing the same, Mr. Nair after putting on the life jacket had jumped from the deck. At that time, he was with Mr. Sachin Singh, Mr. Harish Jogi, Mr. 12 Siddharth Meher and the cook of Maestro Mr. Boyay Apanalper (Turkish Natioal). All 04 crew members, 03 of Indian nationals, and 01 Turkish national, were holding rope/lifeline of lifebuoy thrown by Mr. Sachin Singh. Mr. Harish Jogi, Mr. Siddharth Meher of LPG MAESTRO had put on their life jackets and were floating. Mr. Jogi and Mr. Boyay Apanalper (rank Cook Turkish National) were seen to have been drifting away. In the mean time, one of the tanker vessels made attempt to rescue them. Mr. Boyay Apanalper managed to grab lifeline/rope thrown into the water by the tanker vessel which had come to rescue them. However, Mr. Sachin Singh and Mr. Siddharth Meher were distancing away from the rescue ship and drifted closer to another tanker vessel in the vicinity. As sequel, in Para-10.4, it has been clearly averred that, it is understood from Mr. Ashish Nair that the water was very cold sign. Mr. Ashish Nair had managed to grab lifebuoy thrown by the rescue ship/vessel. After the rescue operation, Mr. Ashish Nair and Mr. Sachin Singh were together on the rescue ship. It has been gathered from the interaction made with the Mr. Harish Jogi, one of the crew members, that everybody was running to aft-deck and jumping into the water. He saw the crew members jumped into the water and also noticed that Karan, Haribhai Tandel, Avinash, Neeraj Singh, Sachin Singh had jumped into the water without life jacket and lifebuoy. To save their life Mr.Harish Jogi threw lifebuoy available on the aft deck.
136. In Para-11.3, it has been asserted that Mr. Harish Jogi and Mr. Siddharth Meher grabbed 2 lifejackets and after putting on they too jumped into the water. After jumping into the water, Mr. Harich Jogi found the Seamen from LPG Candy wearing life jackets and immersion suit. He was holding the lifeline/grabline (rope) of lifebuoy thrown by Mr. Sachin Singh. He was in the league of Mr. Siddharth Meher and Mr. Sachin Singh. It has been stated that Mr. Siddharth Meher, Mr. Sachin Singh and Mr. Ashish were together. Mr. Harish Jogi was separated and had shouted for help. After sometimes, he was closer to Mr. Boyay Apanalper (Turkish National) and Mr. Rishikesh Sakpal, crew members of the Vessel LPG Candy. The rescue vessel threw lifebuoy for them. He was pulled use by the rescue-ship and given medication.
7. In Para-15, the following statement has been made by the petitioner:
"Out of 16 Indian crewmembers of both the vessels, 6 crew members succumbed to injuries due to the fire and drowning, 6 crew members (including the petitioner's son, Siddharth Meher) are still missing and 4 have been rescued."
8. It has also mentioned by Mr. Jena, learned Central Government Counsel that public interest litigations were registered in respect of the said Shipwreck in the Madras High 14 Court (Madurai Bench) direction to rescue for missing seafarers. By common order dated 28.11.2011, Annexure-D/1, the said High Court has held inter alia as follows:
"1. The main issue that is involved in these cases is that the detenus, who had gone to the high seas went missing, when the vessel was crossing Black Sea.
2. The status report reveals the fact that the Central Government is taking all steps to interact with the converned officials at Russia to find the whereabouts of the detenus.
3. The learned Additional Public Prosecutor also submitted that the respondent police will continue the search with help of Ministry of External Affairs and steps are being taken to ascertain the whereabouts of the detenus.
4. In view of the above, we direct the Central Government to continue their follow-up with the officials in Russia to trace the whereabouts of the detenus. In W.P.(MD) No.2805 of 2019, the Superintendent of Police, Kanaykumari District, shall direct the Inspector of Police, Susindaram Police Station, Kannyakumari District and in H.C.P (MD) No.146 of 2019, the Superintendent of Police, 15 Thanjavur District, shall direct the Inspector of Police, Madukkur Police Station, Thanjavur District, to register a man missing complaint and the investigation shall be carried out in accordance with the guidelines given by this court in the case of S. SURIYA DEVI Vs. THILIP KUMAR reported in 2018 (2)L. W (crl) 336. The investigation shall be monitored by the Superintendent of Police and he shall co- ordinate with the Ministry of External Affairs, in this regard.
5. With the above directions, both the petitions are disposed of No Costs. Consequently, the connected miscellaneous petition is closed."
[Emphasis added]
9. Mr. Jena, learned Central Government Counsel has, thereafter, empathetically submitted that, whatever possible steps are to be taken by the Central Government in the Ministry of Shipping, in collaboration of the Ministry of External Affairs have been taken and will be taken. From the information so far gathered, life or death of the missing person cannot be ascertained. As a result, search is still continuing.
10. Mr. A. K. Mishra, learned counsel appearing for the Petitioner has, at this juncture, submitted that, this uncertainty cannot be allowed to prevail. According to him, the broader dimensions, which is shrouded and linked to the shipwreck are 16 required to be investigated by a competent agency. As such, this Court should ask a report from the Union of India and the said report shall contain the further materials of search.
11. Having appreciated the contentions and the verified facts relating to the fateful occurrence, we are of the view that no purpose would be served by keeping this writ petition pending.
12. The Apex Court in Kanu Sanyal vs. District Magistrate, Darjeeling and Ors reported in (1973 2) SCC 674 has laid down the principle concerning the nature and scope of habeas corpus as follows:
"7. This was the practice and procedure in an application for a writ of habeas corpus and this is how the jurisdiction in regard to writ of habeas corpus was exercised by the courts in England as well as in United States when the Constitution makers framed Article 32 of the Constitution. It is, therefore, reasonable to assume that when the Constitution makers provided in Article 32(2) that the Supreme Court shall have power inter alia to issue a writ in the nature of habeas carpus, they had in mind the writ of habeas corpus as administered in England and the United States at that time. The Constitution makers could never have intended that while dealing with an 17 application for a writ of habeas corpus under Article 32, the Supreme Court should shut its eyes to the development in the law in regard to the writ of habeas corpus in the last two hundred years in the country of its origin and the manner in which the jurisdiction in regard to the writ of habeas corpus is exercised in the country of its adoption across the Atlantic, and ignoring the facts of history, allow itself to be petrified in the age of the Tudors and the Stuarts when the writ was struggling to emerge as an effective weapon in the protection of personal liberty. There can be no doubt that in enacting Article 32(2) the Constitution makers meant to give to person illegally restrained of his liberty the same kind of remedy, fashioned and developed over the years, which is counterpart enjoyed in England and the United States. It would indeed be highly anomalous and strange that when in England and the United States the remedy by way of a writ, of habeas corpus is shown of its superfluous element and made more convenient and effective from a functional view point by dropping the requirement of production of the person detained, we in India should still hold ourselves bound by the old form of procedure and pay homage to a superfluity which has been discarded a long ago in those two 18 countries. Why should the ghost of the past and that too not ours but that of another country-be allowed to continue to haunt us and cloud our vision of rationality. It has been held by this Court in T.C. Basappa v. T. Nagappa & Anr. that "in view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law." (the underlining is ours) When we find, both on a priori reasoning as also on the basis of the practice in England and the United States, that the production of the body of the person detained is not a basic or essential requirement of a proceeding for a writ of habeas corpus-it is a superfluous element which can be discarded without effecting the utility and effectiveness of the remedy-there is no reason or justification why we should insist upon it while dealing with an application for a writ of habeas 19 corpus. The broad and general principles that regulate the exercise of jurisdiction to issue a writ of habeas corpus in English law have been discussed by us and they do not require that the body of the person detained must be produced before the legality of the detention can be inquired into and determined by the court. We must, therefore, hold that while dealing with an application for a writ of habeas corpus under Article 32, the Supreme Court may not require the body of the person detained to be brought before the Court. The production of the body of the person detained is not essential to the jurisdiction of the Supreme Court to deal with the application. The Supreme Court can examine the legality of the detention on the hearing of the rule nisi without requiring that the person detained be brought before the Court, and if the detention is found unlawful, order him to be released forthwith. This, in fact, is the procedure set out in Order XXXV, Rules 4 & 5 read with Order XLVII, Rules 1 and 6 of the Supreme Court Rules. Order XXXV, Rule 4 provides that if on the preliminary hearing the Court is of opinion that a prima facie case for granting the petition is made out-and granting the petition would mean passing an order of release of the person detained-a rule nisi 20 shall issue calling upon the respondent to appear and show cause why the order sought, namely, order for release of the person detained, should not be made and at the same time to produce in Court the body of the person detained "then and there to be dealt with according to law". It would appear that according to this Rule the body of the person detained must be produced in Court on the day fixed for the hearing of the rule nisi. But Order XLVII, Rule 1 empowers the Court, for sufficient cause shown, to dispense with this requirement of Order XXXV. Rule 4 and the Court may direct in an appropriate case that the body of the person detained need not be produced in Court at the hearing of the rule nisi. The same is the effect of Order XLVII, Rule 6. Where such a direction is given, the Supreme Court would hear the rule nisi without the person detained being brought before it and, as provided in Order XXXV, Rule 5, "if no cause is shown or if cause is shown and disallowed" pass an order that the person detained be set at liberty, and "if cause is shown and allowed" discharge the rule nisi. That would be exactly in accord with the manner in which the jurisdiction in regard to an application for a writ of habeas corpus is exercised in England and the United States. We fail to see how 21 that can be regarded as in any way contradictory or violative of Article 32 of the Constitution. Moreover, it may be noticed that though the petitioner has a fundamental right under Article 32(1) to move the Supreme Court by appropriate proceeding for enforcement of any of his fundamental rights guaranteed under Part III and the Supreme Court is bound under Article 32(2) to issue appropriate direction order or writ for enforcement of such fundamental right, there is no obligation on the Supreme Court to give any particular kind of remedy to the Petitioner. What should be the appropriate remedy to be given to the petitioner for enforcement of the fundamental right sought to be vindicated by him is a matter for the Supreme Court to decide under Article 32(2). The Supreme Court may, in the exercise of its power under Article 32(2). say that in order to give relief to the person detained for enforcement of his personal freedom, it is not necessary to go through the idle formality of requiring him to be produced before the Court and that it would be sufficient and appropriate instead to examine the validity of the detention without having being brought before the Court, and if the detention is found to be unlawful, pass an order setting him at liberty.22
8. We are, therefore, of the view that there is nothing in Article 32 which requires that the body of the person detained must be produced before an application for a writ of habeas corpus can be heard and decided by the Court. It is competent to the Court to dispense with the production of the body of the person detained while issuing a rule nisi under Order XXXV, Rule 4 and the rule nisi can be heard and an appropriate order passed in terms of Order XXXV, Rule 5 without requiring the body of the person detained to be brought before the Court This was the only question before us and now that it is determined the petition will have to go back to the appropriate Bench for disposal according to law."
13. This High Court having following the aforementioned principles in Hemkumar Majhi v. State of Odisha and others: 2021(III) ILR-CUT-51, had occasion to observe that while the person victim is missing and there is no evidence of illegal detention or unlawful detention by anybody, writ for habeas corpus is not maintainable. But, we are not oblivious the Union of India has a greater responsibility to ascertain whereabouts of Mr. Siddharth Meher, the son of the Petitioner. As noted, the Ministry of Shipping in collaboration with Ministry of External Affairs have not left any stone unturned so far, but the search shall 23 continue till the wellbeing of Mr. Siddhath Meher is conclusively inferred.
14. We further, direct the Opposite Parties No.1 to 4 to take further steps to ascertain the whereabouts of Mr. Siddharth Meher, son of the petitioner within a time frame. After a robust inquiry through a competent agency, the Union of India shall prepare a report within a period of six months from today and issue a certificate laying down the result of the such search and their inference from the result of such search in respect of life of Mr. Siddharth Meher. A copy of the said certificate be handed over to the Petitioner.
15. Having observed thus, we dispose this writ petition.
16. There shall be no orders as to cost.
17. Urgent certified copy of this order be granted as per rules.
18. A free copy of this order be supplied to Mr. Jena, learned Central Government Counsel for sending the copy to the competent authorities for compliance.
(S. Talapatra) Judge (Savitri Ratho) Judge Murmu