Kerala HC Dismisses Challenge Against Dismissal Of Coast Guard Officer Whose Vessel Allegedly Collided With Boat Causing Death Of 5 Fishermen

The Kerala High Court dismissed the challenge against the dismissal of a Deputy Inspector General (DIG) of the Coast Guard after the vessel on which he was the Commanding Officer (Designate) collided with a fishing boat and caused the death of 5 fishermen and 1 fisherman missing.The vessel started from Goa Shipyard and collided with the boat on its way back to the Shipyard. The fishing boat due to the impact of the collision, broke into 2 parts. The boat started to sink and the members of the crew were thrown into the sea. As admitted by the DIG, the vessel did not stop after the collision but returned back to Goa as scheduled. The fishermen were rescued almost 5 hours later by another fishing boat. By that time, six fishermen were lost in the sea and dead bodies of only five of them were recovered.Once back, he reported the incident to the higher-ups. He contends that, the vessel brushed upon the fishing boat, however no injury/damage was noticed to the fishing boat. Later, the Boat Owners Association informed the Goa Coast Guard about the incident and that a few fishermen on the boat have gone missing.Subsequently, an FIR was filed and the proceedings started in the Criminal Court, Mumbai. The Coast Guard by an application filed before the Magistrate transferred the proceedings to the Coast Guard Court. The DIG was imposed with 6 months imprisonment and dismissal from service which was later reduced to dismissal alone. Against this sentence, the DIG approached the High Court.Justice Harisankar V. Menon noted that there was no vessel stationed around the place when the accident occurred. Cort observed that this negates the petitioner's argument that the vessel was not involved in the accident. The post-mortem report of the 5 fishermen showed that the cause of death was head injury which they might have suffered during the collision. The Court said that the if the vessel had stopped and they carried out a search and rescue as provided under the Act, the death could have been prevented. As per, Section 14(2)(b) of the Coast Guard Act, it is the duty of coast man to provide protection to fisherman including assistance to them while in distress“The fact that the fisherman could have been saved had the vessel stopped and ventured into search and rescue, is not a matter of dispute”, the Court observedCommand ResponsibilityThe petitioner had argued that the findings were against the Officer of Watch of the Coast Guard vessel and against the Tindel of the boat. The Court said that as the Commander of the vessel, he was responsible for the action of his subordinates.“The orders issued by the Commander are to be carried out tin letter and spirit, meaning thereby, consequences are to follow when there is disobedience to the orders issued. The Officer/ Commander commanding the men under him in such circumstances has “Command Responsibility”. The Commander cannot disown the action of those under him by stating that he was not aware about the action of his subordinates.”Maintainability of the PetitionThe respondents had contended that the writ was not maintainable as no part of the cause of action has arisen in the jurisdiction of the Kerala High Court. The Court said that the petitioner applied for judicial review from his address in Kerala. The reply was received in the address in Kerala. After that, the petitioner sent a statutory petition to the Government to quash his sentence which was rejected by the Government. These communications were done using petitioner's address in Kerala. By applying the Supreme Court decision in Nawal Kishore v Union of India and Others (2014), the Court held that it had jurisdiction to consider the petition.Proceedings Before the Coast Guard CourtThe petitioner contended that the Coast Guard Court could not have transferred the case to itself and that it did not have jurisdiction to consider the charge of causing death to civilians.The High Court said that the Coast Guard Court proceedings was not just related to the loss of life/ properties of the civilian but also primarily against the decisions made by hm after the accident. The Court further said that as per Rule 16 of the Coast Guard (Discipline) Rules, 1983 the Director General can choose to try an offence in the Coast Guard Court when the offence was done during the course of his performance of his duty as a member of the Coast Guard.Remittal Of SentenceThe petitioner contended that as per the Act, when the sentence of imprisonment was remitted, the dismissal should also be remitted.Section 114 of the Act says that when addition to any other sentence, a punishment of dismissal is also given, if the sentence is remitted, dismissal shall also be remitted. The Court said that, in this case, it was a judicial review under Section 117 of the Act and it cannot be considered as a remission as per Section 107 or suspension of sentence as per Section 110.The Court dismissed the petition considering the death of the fishermen saying that...

Kerala HC Dismisses Challenge Against Dismissal Of Coast Guard Officer Whose Vessel Allegedly Collided With Boat Causing Death Of 5 Fishermen

Manju Elsa Isac

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