IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 25534 of 2003(M) -------------------------- PETITIONER: --------------- COMMANDER K.P. SASIDHARAN, 177-A, WARD NO.IX, THATTEKKADU - PANAPARAMBU ROAD, MARADU GRAMA PANCHAYATH, MARADU, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS SRI.BOBBY MATHEW KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE MINISTRY OF DEFENCE NEW DELHI. 2. THE CHIEF OF NAVAL STAFF, NAVAL HEAD QUARTERS, NEW DELHI-110 011. 3. THE FLAG OFFICER COMMANDING-IN-CHIEF, SOUTHRN NAVAL COMMAND, COCHIN-4. 4. THE DIRECTOR GENERAL OF COAST GUARD, COAST GUARD HEAD QUARTERS, NATIONAL STADIUM COMPLEX, NEW DELHI-110 001. ADV. SRI.JOHN VARGHESE, ASSISTANT SG FOR R1-R4 SRI.TPM.IBRAHIM KHAN, ASG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON 20/07/2010 DELIVERED THE FOLLOWING: WP(C).No. 25534 of 2003(M) APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- P1:- TRUE COPY OF THE CRTIFICATE DT.24.9.95 ISSUED BY MASTER OF M.C.PEARL. P2:- TRUE COPY OF THE CERTIFICATE DT.24.9.95 ISSUED BY MASTER OF M.C.PEARL. P3:- TRUE COPY OF THE CERTIFICATE DT.24.9.95 ISSUED BY MASTER OF M.C.PEARL. P4:- TRUE COPY OF THE CERTIFICATE DT.25.9.95 ISSUED BY MASTER OF M.C.PEARL. P5:- TRUE COPY OF THE CERTIFICATE DT.25.9.95 ISSUED BY MASTER OF M.C.PEARL. P6:- TRUE COPY OF CHAPTER 36 OF REGULATION FOR THE NAVY, PART I RELATING TO SALVAGE SERVICE AND CONNECTED MATTERS. P7:- TRUE COPY OF THE NAVY ACT AS PER DL/1321/25. P8:- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT DT.9.7.98 P9:- TRUE COPPY OF THE ORDER OF THE 4TH RESPONDENT DT.10.11.98 ADDRESSED TO THE WND RESPONDENT. P10:-TRUE COPY OF THE FORWARDING LETTER ISSUED ALONG WITH EXT.P9 DT.19.11.98 FORWARDED TO THE 3RD RESPONDENT. P11:-TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT TO THE PETITIONER DT.7.12.98. P12:-TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DT.14.12.98 P13:-TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT.30.12.98 P14:-TRUE COPY OF THE JUDGMENT IN O.P.3744/99 OF THE HONOURABLE HIGH COURT OF KERALA DT.15.2.99. P15:-TRUE COPY OF THE LETTER FORWARDING EXT.P14 TO THE 3RD RESPONDENT DT.22.3.99 P16:-TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DT.18.5.99. P17:-TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DT.3.8.99 P18:-TRUE COPY OF THE JUDGMENT DT.1.7.02 IN O.P.NO.30694/99 OF THE HON'BLE HIGH COURT OF KERALA. P19:-TRUE COPY OF THE ORDER DT.2.5.03 PASSED BY THE 1ST RESPONDENT BEARING NO.491/US(P)/D(NAVY-II)2003. WP(C).No. 25534 of 2003(M) P20:-TRUE COPY OF THE JUDGMENT DT.23.6.03 IN C.C.C.445/03 OF THE HON'BLE HIGH COURT OF KERALA. P21:-TRUE COPY OF THE NOTIFICATION ISSUED BY THE PRESIDENT'S SECRETARIAT DT.15.8.96. P22:-TRUE COPY OF THE NAO SENA MEDAL (DEVOTION TO DUTY) ISSUED TO SIMON MATHAI. P23:-TRUE COPY THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT.16.1.03 BEARING NO.NA/0101/131. P24:-TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT.19.5.03 BEARING NO.NA/0101/R/1353. P25:-TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF NAVAL SIGNALS, NAVAL HEADQUARTERS, NEW DELHI-110011 DT.23.5.03 //TRUE COPY// PA TO JUDGE. S. SIRIJAGAN, J. --------------------------------------- WP(C) No. 25534 of 2003 --------------------------------------- Dated this the 20th day of July, 2010 J U D G M E N T ------------------------- The petitioner is an officer of the Indian Navy. He was on deputation to the Coast Guard headed by the 4th respondent from August 1995 to December 1996. At that time he was the Commanding Officer of the ship “CGS Vajra” belonging to the Coast Guard. That deputation was not on the option of the petitioner. But he was sent on deputation by the Indian Navy to the Coast Guard. A Greek container vessel “MC Pearl” came to the Indian Territorial waters during the Monsoon period on the 25th of September 1995. That vessel was in distress. The “CGS Vajra”, commanded by the petitioner reached the scene and rescued all the Crew members of “MC Pearl”, totalling 27 in number on 24.09.1995 and all its cargo minus 12 containers were also salvaged by the Coast 2 WP(C) No. 25534 of 2003 Guard ship. According to the petitioner, Exhibits P1 to P5 documents would go to show that the crew of the petitioner's ship, braving very rough weather, even at the risk of their lives engaged themselves in the salvage operations, in which they ultimately succeeded. “M.C. Pearl” paid salvage charges of Rs.1,37,22,134/- to the Government of India. According to the petitioner, as per Section 402 of the Merchant Shipping Act, 1958, the commander and crew Coast Guard ship and the Government are to share the salvage charges. Petitioner submitted Exhibit P8 claim for his share of the salvage charges. By Exhibit P9, the same was rejected on the ground that the amount paid by “M.C. Pearl” being capitation and other hire charges was credited to the Coast Guard account and the amount being neither reward nor salvage money, they are not liable to be apportioned to the Ship's Company. Petitioner again filed statutory representation. When they were not favourably 3 WP(C) No. 25534 of 2003 considered the petitioner filed OP No. 3744/09 before this Court, in which by Exhibit P14 judgment, this Court directed the Chief of Naval Staff to consider and pass orders on the same. But by Exhibit P16, the Flag Officer Commanding-in-Chief of the Southern Naval command informed the petitioner that the consideration of the question is not within the jurisdiction of the Navy. Subsequently, by Exhibit P17 order, the Government of India again rejected the petitioner's contention on the ground that, “CGS Vajra” was rendering assistance only in the course of their duties on behalf of the Coast Guard under Section 14 of the Coast Guard Act and that payment made by “MC Pearl” was towards capitation and hire charges and since no provision exists in the Coast Guard to disburse such charges to individuals the amount was credited to the Government. The petitioner again approached this Court by filing OP No.3069/99, in which the question as to whether the crew of the Coast Guard 4 WP(C) No. 25534 of 2003 rendering service in accordance with the provisions of the Coast Guard Act is entitled to claim salvage charges was considered by this Court. Relying on Section 3(40) of the Merchant Shipping Act, 1958 and Section 3 (40) there of defining the word 'salvage', this Court by Exhibit P18 judgment, held that “when it is an admitted fact that the petitioner is the commander of ship and the crew had saved the life and properties of “MC Pearl” at the sea, necessarily, it cannot be taken that, they shall be denied of the salvage charges merely because it was their duty cast under Section 14 of the Coast Guard Act and further that the provisions under Section 402 entitles him to get salvage charges”. In order to consider that question, after quashing order of the Government, the Government was directed to consider the matter afresh taking note of the provisions of Section 402. But again by Exhibit P19 order, the Government rejected the claim of the petitioner on the ground that under Section 402 of the Merchant 5 WP(C) No. 25534 of 2003 Shipping Act, the applicability of salvage arises only in case where such acts undertaken wholly or in part within the territorial waters or near the Indian Coast. According to the Government, in the instant case the incident occurred 43 nautical miles north west of Dwaraka of Gujarat Coast and the vessel was taken by the tug belonging to the salvage firm M/s. Wijsmuller Salvage to Dubai Port, and therefore the petitioner is not entitled to the salvage charges. Although the petitioner had filed C.C.C No.445/03, the same was closed without prejudice to the right of the petitioner to challenge the validity of Exhibit P19 appropriately. It is under the said circumstances, the petitioner has filed this writ petition seeking the following reliefs:- A. Call for the records relating to Exhibits P to P13, P15 to P19 and P21 to P25 from the Respondents and Quash Exhibit P19 by the issue of a writ of certiorari or other appropriate writ, direction or order; B. Issue a writ of mandamus commanding the 1st Respondent to allow the claim advanced by the Petitioner in Exhibit P12. 6 WP(C) No. 25534 of 2003 2. The petitioner contends that the respondents have taken different stands at different times and when each time the contentions were negatived, they have come up with a fresh ground, in order to deliberately deny the benefits due to the petitioner. The petitioner submits that Exhibit P1 to P5 documents would conclusively show that the “C.G.S Vajra” was actually involved in the salvage operation of “M.C. Pearl” and succeeded in its attempt. As per Exhibit P21 notification dated 15.08.1996, the Government have categorically stated that the crew members of “CGS Vajra” were involved in the salvage operations conducted by “C.G.S Vajra” in rescuing “M.C. Pearl” from distress. He further points out that Exhibit P22 citation in respect of another crew member of the “C.G.S Vajra” also conclusively proves that “C.G.S Vajra” was engaged in the salvage operations of “M.C. Pearl”. That being so, according to the petitioner, the Government can neither contend that the “C.G.S Vajra” 7 WP(C) No. 25534 of 2003 was not engaged in salvage operation of “M.C. Pearl” nor that the amount received from “M.C. Pearl” is not as salvage charges. It is further contended that in view of Subsection 3 of Section 402, the Government cannot take the stand that the salvage charges are payable only in respect of salvage undertaken wholly or partly within the territorial waters or near Indian Cost. 3. A counter affidavit has been filed on behalf of the 4th respondent. In the same it is stated that the deponent of the counter affidavit represents the respondent in the writ petition and he swears to the affidavit on behalf of the respondent, since he is authorized to do so. In the counter affidavit they take all the contentions they have taken in of the Government orders rejecting petitioner's claim for his share of the salvage charges. 4. I have considered the rival contentions in detail. The first question is whether the “C.G.S Vajra” was engaged in salvage operations of “M.C. Pearl”. 8 WP(C) No. 25534 of 2003 5. Exhibit P1 is the certificate issued by the Master of “M.C. Pearl” for salvage by “C.G.S Vajra”, wherein, the master agrees “to abide by the terms as in Government of India Standard form of salvage agreement (Form I) and (Form II) for the salvage services being rendered by Indian Coast Guard ship “C.G.S Vajra”. Exhibit P2 is a certificate issued by the same Master on 24.09.1995 wherein he certified that he consider it unsafe to board the Ship “M.C. Pearl”. Exhibit P3 is another certificate issued by the same Maser of “M.C. Pearl” which reads thus:- “The commanding officer CGS Vajra has informed me that my owners have directed that I and few of my officers and crew should embark MC Pearl to assist in salvage efforts. I cannot comply with this directive as the MC Pearl is likely to sink any time. It would be very dangerous for me or my crew”. Exhibit P4 is another certificate signed and issued by the Master of “MC Pearl” which was signed by other crew members of that ship also, which reads thus:- “I consider ship (MC Pearl) now safe and I am embarking and relieving you (CGS Vajra) of responsibility”. Exhibit P5 is another certificate issued by the 9 WP(C) No. 25534 of 2003 Master of “MC.Pearl” which reads thus:- 1. “I, ENRIQUITO A LARUGA, Master MC Pearl do hereby solemnly affirm that I consider MC Pearl now safe. The salvage efforts of CGS Vajra has been successful and MC Pearl will not sink now. 2. I am aware that the following repair work needs to be undertaken- (a) correct balance of list (b) start up machinery or tow to safe harbor. 3. I now request the commanding officer CGS Vajra to cease further salvage efforts. This is being requested with a view to reduce the salvage expenses for the owner as salvage is completed and only repair work is remaining”. Again Exhibit P 21 is the notification issued from the President's Secretariat to be published in the Gazette of India which reads thus :- “No. 83-Press/96 – The President is pleased, on the occasion of Independence Day 1996, to award the 'Tatrakshak' Medal for Gallantry to the undermentioned officer:- Dy Comdt AE Vazhuthi (0005-L) 2. At about 0150 hrs on 24 Sep. 95 a distress message was received from RCC Norway indicating Merchant Ship MC Pearl was in distress and CGS Vajra was directed to rescue her. The MC Pearl, a 13000 ton displacement vessel, was listing about 40 degrees to starboard, her upperdeck on starboard side was below water line and the waves were breaking on the containers on the starboard side. She was without propulsion and electric power and in imminent danger of capsizing. Fourteen of her crew still on board had given up hope of survival. 3. After safe recovery of the crew of MC Pearl, CGS Vajra set upon the task of salvaging the sinking ship. An initial boarding 10 WP(C) No. 25534 of 2003 party was constituted and was led by Dy.Commandant AE Vazhuthi. The state of MC Pearl was highly unstable. It was a very dangerous task. The officer displayed courage and tremendous leadership in attempting to board MC Pearl. As the boat approached the starboard side of the Merchant Ship, six containers broke loose due to excessive list of the ship and fell overboard narrowly missing the boat. He ordered full astern and cleared the boat from the falling containers in sufficient time to prevent loss of life. 4. The aborted attempt to board the vessel did not deter his spirits and motivated his men under trying circumstances and played a key role in winching down an officer and a sailor on board the distressed ship to carry out feasibility study for salvaging the vessel. The officer has displayed extraordinary innovativeness in the operation of jettisoning containers from starboard side by passing berthing hawsers(ropes) around the container and passing the rope to the ship by boat for pulling down the containers. The operation was methodically carried out and executed in a seamanship manner ensuring safety of lives and no damage to property in a very trying and adverse weather conditions. 5. The officer had displayed courage of highest order by leading the men from front and kept his coolness under strain. The officer has displayed high professional competent, innovativeness and dedication to duty not caring for personal safety. This exemplary courage beyond call of duty leading by personal example in adverse weather conditions is in the highest order of Coast Guard tradition. The officer is strongly recommended for the award of Tatrakshak Medal (Gallantry) 6. This award is made for gallantry under Rule 11(i) of the Rules governing the award of Tatrakshak Medal and consequently carries with it the special allowance admissible under Rule 13(a) with effect from 24 September, 1995”. Exhibit P22 is the citation in respect of one of the crew members of “CGS Vajra” taken from the brochure of Investiture ceremony held on 26.11.1997 at Mumbai on 11 WP(C) No. 25534 of 2003 board INS Kunjali, by the then Chief of Naval Staff Admiral Vishnu Bhagath which reads thus:- “1. On 24 Sep. 1995 a distress message was received indicating Merchant Ship MC Pearl was in distress and CGS Vajra was directed to rescue her. The MC Pearl, a 13000 ton displacement vessel was listing about 40 degrees to starboard. She was without propulsion and without electric power and was in immediate danger of capsizing. 2. Lt. S Mathai volunteered to board the ship for assessment and was winched down from a helicopter. There was total darkness below the decks. The officer quickly found his way down and entered the engine room and few other compartments and discovered that there was an ingress of water that had reached the level of the foot plates. Subsequently, the office led the salvage team, jumped in to the strong currents and swam to the guys of the life boat and secured the Jacob ladder and enabled the salvage party to embark the vessel quickly. Leading by personal example, the officer climbed over the dangerously tilted and slipping containers, loosened the required moorings and was instrumental in jettisoning of 12 containers thus help correct the list of the ship. The officer's presence of mind, exemplary leadership, organizational skill and exceptional courage greatly contributed to the successful salvage of the Merchant Vessel after 12 hours of unstinted effort. 3. For exceptional devotion to duty, which is in keeping with highest tradition of the service, Lieutenant Simon Mathai, (03603) is awarded 'NAO SENA MEDAL (DEVOTION TO DUTY)' “ 6. All these documents categorically admit that the “CGS Vajra” was engaged in the salvage operations of “MC 12 WP(C) No. 25534 of 2003 Pearl” without any iota of doubt. That being so, it is to late in the day for the Government of India to take the contention that “CGS Vajra” was not engaged in the salvage operations of “MC Pearl” and therefore, the petitioner is not entitled to share of the salvage charges received by the Government of India. 7. The next question is as to whether the amount of Rs.1,37,22,134/- paid by the “MC Pearl” to the Union of India was salvage charges or not. The documents referred to above certainly shows that “CGS Vajra” was engaged in salvage operations of “MC Pearl”. Therefore, payment of amounts by “MC Pearl” ordinarily would be only for salvage charges. If such payment was for capitation and other hire charges as claimed by the Government of India, there would certainly be records like invoices and receipts etc. to prove the same. The Government have not chosen to produce any such document in support of their contention. Further in Exhibit P18 judgment, the only question which was argued 13 WP(C) No. 25534 of 2003 and considered was whether the petitioner is entitled to share in the amount received by the Government of India as salvage charges. The contention raised there was that the petitioner is not entitled to share in the salvage charges, since “CGS Vajra” was exercising only its statutory duties under the Coast Guard Act. That being so, after having suffered Exhibit P18 judgment the Government of India cannot turn around and claim that the amount received from “MC Pearl” is not salvage charges but something else. 8. The 3rd question is as to whether the petitioner can be denied share of the salvage charges on the ground that he was only exercising his statutory duties under the Cost Guard Act. That question is squarely answered by Exhibit P18 judgment which reads thus:- “It is an admitted case in Exhibit P17 that “the Central Government has noticed that the ship M.C Pearl was on passage to Kandla to Dubai and was reported to be in distress at about 02.30 hours on 24.09.1995....”. It is also an admitted fact in Exhibit P17 that CGS Vajra under the commandership of the petitioner and on routine deployment in the area was diverted to provide necessary assistance to MC Pearl. It is again a noted fact by the Government of India that the “Coast Guard ship Vajra had 14 WP(C) No. 25534 of 2003 rescued the crew and stood by to provide assistance”. Thus saving of life and property at the sea is an admitted fact. But the salvage is denied to the petitioner on the ground that it was his bounden duty under Section 14 of the Coast Guard Act to render assistance to the ship in distress. While considering this aspect in Exhibit P17 the Government had not adverted to Section 402 of the Merchant's Shipping Act, 1958 which provides for payment of salvage for saving life, cargo or wreck. Sub section (3) therein provides: Where salvage services are rendered by or on behalf of the Government or by a vessel of the Indian Navy (or of the Coast Guard) or the commander or crew of any such vessel the Government, the commander or the crew as the case may be, shall be entitled to salvage and shall have the same rights and remedies in respect of those services as any other salvor”. Section 3(4) defined salvage as under: “Salvage” includes all expenses properly incurred by the salvor in the performance of salvage services”. The commander of Coast Guard is also treated as a “Salvor” in terms of Subsection (3) of Section 402. Therefore, he will also be entitled to salvage as provided in Section 3(40) of the Act, the petitioner submits. This aspect is not noticed while the Government considered the issue in Exhibit P17. Even going by the contention of the Central Government Standing Counsel, the Government is also entitled to salvage. 2. When it is an admitted fact that he petitioner is the commander of a ship and the crew had saved the life and property of MC Pearl at the see necessarily, it cannot be taken that, they shall be denied of the salvage merely because it was their duty cast under section 14 of the Coast Guard Act. Over and above, the provisions in 15 WP(C) No. 25534 of 2003 Section 402 entitles him to get salvage. Had it been considered necessarily, the petitioner could have resorted to the remedies available to him in Section 402 of the Merchant's Shipping Act. There was no consideration of entitlement to raise a dispute to be adjudicated under Sub section (4) of Section 402. Accordingly, I quash Exhibit P17 and direct the Government to consider the matter afresh taking note of the provisions contained in Section 402 as above. Original petition is allowed”. Therein this Court had categorically held that petitioner cannot be denied share of the salvage charges on that ground. Exhibit P18 judgment has become final. The Government cannot therefore, take a different stand now. 9. The last contention raised is that salvage charges are payable only in cases where the Acts are undertaken wholly or in part within the territorial waters or near the Indian Coast. To reject this contention what is necessary is only quote read subsection 1 and 3 of Section 402 of the Marine Ship Act together, which reads thus: “Sub section 1:- (a) wholly or in part within the territorial waters of India in saving life from any vessel, or elsewhere in saving life from a vessel registered in India, or 16 WP(C) No. 25534 of 2003 (b) in assisting a vessel or saving the cargo or equipment or a vessel which is wrecked, stranded or in distress at any place on or near the coasts of India, or (c) by any person other than the receiver of the wreck in saving the wreck; there shall be payable to the salvor by the owner of the vessel, cargo, equipment or wreck, a reasonable sum for salvage having regard to all the circumstances of the case. Subsection 3:- Where salvage services are rendered by or on behalf of the Governments or by a vessel of the Indian Navy or of the Coast Guard or the commander or crew of any such vessel, the Government , the commander or the crew, as the case may be, shall be entitled to salvage and shall have the same rights and remedies in respects or those services as any other salvor”. Infact in Exhibit P18 judgment, quoting that sections only this Court has held that the petitioner is entitled to claim share of the salvage charges. 10. In so far as admittedly “CGS Vajra” has undertaken salvage operations of "MC Pearl" and I have already held that "MC Pearl" have paid the amount of Rs.1,37,22,134 as salvage charges, I am satisfied that the petitioner cannot be denied his share of the amount received