Disposed

T.J.Joseph v. the Director General

Kerala HC2 Mar 2018WP(C)/1085/2018

Case brief

AI extract

What is this about?

Civilian Coast Guard employees challenged deployment aboard an auxiliary barge for lack of competency certification. The court left the movement order undisturbed but directed that they only assist qualified personnel and not control or operate the barge beyond their competence. Both petitions were disposed of.

What did the court decide?

Respondents directed to assign only assistance duties under qualified personnel, without requiring control of the barge or work beyond the petitioners' qualifications and competence.

T.J.Joseph Vs the Director General — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939

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WP(C).No. 1085 of 2018

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PETITIONER(S)

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1 T.J.JOSEPH,

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WORKING AS ENGINE DRIVER, COAST GUARD DIST. NO.4, KOCHI-4. RESIDING AT THYPADATHU HOUSE, 18/1890, PALLURUTHY P.O., COCHIN-682006.

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2 P.M.VALSAN,

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WORKING AS ENGINE DRIVER, COAST GUARD DIST.NO.4, KOCHI-4, RESIDING AT PATTATHIL HOUSE, KADAVANTHRA P.O., COCHIN-682020.

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BY ADVS.SRI.T.SANJAY SRI.R.REJI KUMAR

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RESPONDENT(S):

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1. THE DIRECTOR GENERAL, COAST GUARD HEADQUARTERS, NATIONAL STADIUM COMPLEX, NEW DELHI-100001.

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2. DISTRICT COMMANDER, HEADQUARTERS, COAST GUARD DISTRICT NO.4, C/O.FLEET MAIL OFFICE, KOCHI-682004.

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3. THE COMMANDANT, HEADQUARTERS, COAST GUARD DISTRICT NO.4, C/O.FLEET MAIL OFFICE, KOCHI-682004.

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4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110001.

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BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2018, ALONG WITH WPC.NO.1086/2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1085 of 2018 (I)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1-	TRUE COPY OF THE APPOINTMENT ORDER DATED 09/01/1997 OF THE PETITIONER.
EXHIBIT P2-	TRUE COPY OF THE APPOINTMENT ORDER DATED 05/12/2003 OF THE PETITIONER.
EXHIBIT P3-	TRUE COPY OF THE REPRESENTATION DATED 08/11/2017 SUBMITTED TO THE 2ND RESPONDENT.
EXHIBIT P4-	TRUE COPY OF THE REPRESENTATION DATED 18/11/2017 SUBMITTED TO THE 2ND RESPONDENT.
EXHIBIT P5-	A TRUE COPY OF THE NOTICE DATED 28/11/2017 SENT TO THE 2ND PETITIONER.
EXHIBIT P6-	TRUE COPY OF THE MOVEMENT ORDER DATED 09/01/2018.
EXHIBIT P7-	TRUE COPY OF THE CERTIFICATE OF COMPETENCY DATED 10/07/2001 ISSUED TO THE 1ST PETITIONER.
EXHIBIT P8-	TRUE COPY OF CERTIFICATE OF COMPETENCY DATED 12/12/2001 ISSUED TO THE 2ND PETITIONER.
EXHIBIT P9:-	TRUE COPY OF THE LIST OF TRAINING INSTITUTES APPROVED BY THE DG SHIPPING FOR CONDUCTING MARITIME COURSE IN INDIA.
EXHIBIT P10:-	TRUE COPY OF THE LIST OF STATE PARTIES TO THE STCW CONVENTION.
EXHIBIT P11:-	TRUE COPY OF RELEVANT PAGES OF THE STCW CONVENTION 1978.
EXHIBIT P12:-	THE WEB COPY OF THE M.S.NOTICE 12 OF 2012 ISSUED BY THE DG SHIPPING, GOVERNMENT OF INDIA.
EXHIBIT P13:-	TRUE COPY OF THE RELEVANT PAGES OF THE UNCLOS.
EXHIBIT P14:-	TRUE COPY OF THE RELEVANT PAGES OF THE STCW CONVENTION AS WELL AS CODE.
RESPONDENT(S)' --------------	EXHIBITS ---------
EXHIBIT R2(A):	- TRUE COPY OF DETENTION CERTIFICATE ISSUED BY M/S.SHOFT SHIPYARD DATED 06 MAY 2017.
EXHIBIT R2(B):	- TRUE COPY OF WATCH KEEPING CERTIFICATE AWARDED TO THE OFFICER IN CHARGE OF THE BARGE.

/TRUE COPY/

PS TO JUDGE

TS 02/03/2018

P.V.ASHA, J.

W.P(C).No.1085 of 2018-I and W.P(C).No.1086 of 2018-I

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Dated this the 2^nd day of March, 2018

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JUDGMENT

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Both these writ petitions relate to the movement order issued to the petitioners to proceed to Kavarati Island, Union Territory of Lakshadweep on deployment as per Ext.P6 order dated 9.1.2018. The parties and documents referred to in these cases are as described in W.P(c).No.1085/2018.

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Petitioners in W.P(c).No.1085/2018 are Engine Drivers and the petitioners in W.P(c).No.1086/2018 are Sarang Lascar and Lascar I Class respectively in the Coast Guard working under the 3^rd respondent. The grievance of the petitioners is that their deployment is ordered without considering the fact that they are not qualified or competent to operate the ship or move on-board, in accordance with the provisions contained in Merchant Shipping Act and the International Conventions.

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I 2

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It is stated that 4 auxiliary barges were built in the Shoft Shipyard Baroch in Gujarat for the Coast Guard, in order to provide indigenously built barges for supplying fuel and water to the coast guard ships. 'ICGS Urja Srotha' was built for Kochi. The petitioners submit that they along with Coast Guard officers brought the auxiliary barge from Gujarat to Kochi. It is their case that even though they were given some training, they are not qualified to operate barges which weigh more than 325 tonnes. The engines are also having 850 BHP each. On coming to know about the move to send them along with the crew members to Kavarati with the barges, the petitioners submitted Exts.P3 and P4 representations requesting the 2^nd respondent not to send them to Kavarati. It was thereafter that Ext.P6 movement order was issued on 9.1.2018 directing them to proceed to Kavarati Island. According to them, they have to handle the huge barge over the high seas to Kavarati for which they do not have any expertise, qualification or health. Producing Ext.P7 certificate of competency issued to the 1^st petitioner it is pointed out that he is only qualified to operate a boat as per Canals and Ferries Act VI 1096. In the case of the 2^nd petitioner it is stated that his competency as engine driver is only in respect of motor vessels having engines less than 226 BHP plying in

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 3

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the Port of Cochin only, as seen from Ext.P8.

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In the case of the 1^st petitioner in W.P(c).No.1086/2018, producing Ext.P9 in that writ petition it is stated that his competency is only as a Sarang of a steam vessel with engines of having less than 40 nominal Horse Power or a motor vessel with engine of less than 226 BHP.

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Therefore, the contention of the petitioners is that even though

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their deployment as per Ext.P6 order is on temporary duty, the deployment of persons like them who do not have the requisite qualification to board the ships is illegal. It is their case that the naval barges are operated with specially trained engine drivers in various categories, fireman, greaser etc. Their deployment would be contrary to the rules regarding safety of the vessel, its cargo and crew. It is also their case that they are insured with only a sum of Rs.30,000/- under the group insurance of the coast guard and in case any mishap occurs their families would become destitutes. It is pointed out that they have to navigate 208 nautical miles through the high seas taking the diesel filled barges. It is their further case that since the respondents have already started proceedings to fill up 48 posts for manning the new auxiliary barges, qualified hands would be available and therefore they are

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 4

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seeking orders directing the respondents to retain them in the present station.

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Respondents 1 to 4 filed counter affidavit and additional counter

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affidavit. The petitioners have filed reply affidavits to both. According to the respondents, the Indian Coast Guard has to ensure the security of maritime zones of India and to protect the national interest. The ICGS AB Urja Shrota is being rebased to Kavarati, Lakshadweep Islands in order to meet the fuelling requirements of FPVs/IBS which patrol the Islands. It is their case that the petitioners were given adequate training in M/s.Shoft Shipyard, Bharuch, Gujarat from 14.4.2017 to 6.5.2017 for familiarising them to manage the system on-board the barge Urja Shrota. Ext.P6 order is only a temporary assignment for a probable duration of 15 weeks. It is also stated that in addition to the petitioners and other civilian crew members, there would be a qualified team of officer/subordinate officer and enrolled personnel with technical background in the respective field and the petitioners and other civilian crew need only assist the qualified team. It is their further case that the petitioners who were working in Indian Navy joined the Indian Coast Guard and they are liable to carry out the assigned duties till their superannuation. It is stated that a panel of 8 qualified

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 5

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uniform personnel comprising of 2 officers, 2 subordinate officers and 4 enrolled personnel were scheduled to man the barge. Apart from that ICGS Samarth was also slotted to escort the ship from Kochi harbour to Kavarati and the petitioners were only expected to take passage on-board in their respective place. It is stated that the barge was being placed at Kavarati on temporary basis. The individuals were offered duty allowance for their duration of stay at Kavarati. Case for over aged staff (above 50 years) appropriate promotion, hike in insurance coverage, hard living money and night duty allowance are being addressed appropriately. According to the respondents, Ext.P6 order is issued in public interest and the same is not liable to be interfered with. The decision to take the barge is in national interest with a view to ensure coastal security.

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The petitioners filed a reply affidavit stating that they are only engine drivers competent to handle only small boats, that too, inland waters of Kochi and they are not qualified or competent to operate a large ship. They claimed that they were not imparted adequate training by the private shipyard in Gujarat and they were only shown around the ship by the representatives of the shipyard without taking them on-board to the high

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W.P(C).No.1086 of 2018-I 6

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W.P(C).No.1085 of 2018-I &

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seas and without providing any training module approved by the Director General of Shipping and no certificate of proficiency was also issued to them as required under International Convention. It is their case that the international convention insists strict procedures and modalities for obtaining certificate of competency. As per the convention, no person who is incompetent can be employed on a vessel even to assist the qualified team. The petitioners submit that they are expected to assist the officers to steer the vessel through the sea taking physical control of the system when they are incapable of taking control of any ship and it would be in violation of rules relating to seafarers and international conventions to which India is a signatory. Though the petitioners are ex-servicemen and were serving Indian Navy, they are not capable of handling diesel barge through the sea. It is their further case that operating a ship to Kavarati is not a part of their duty. On the other hand, it is stated that it is for the Coast Guard to deploy the critical assets in accordance with the standard operating procedure utilising their trained uniform sailors.

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According to the petitioners, as per the International

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Convention a minimum of 54 months' service on sea going ship of the Navy

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 7

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and Coast Guard, out of which 24 months shall be performed as independent bridge watch-keeping officer, who should possess a full naval (or equivalent in Indian Coast Guard service) Watch-keeping Certificate. The certificate of competency would be issued only after successful completion of certification procedure of 5 year duration. It is their contention that civilian crew are not deployed in defence ship or vessels with officers, except when there is acute shortfall of trained uniformed hands. Only persons who are approved and certified by the Director General of Shipping or Mercantile Marine Department board ships. According to them, Ext.P6 order is issued in clear violation of standard operating procedures. It is also their case that the B team should also be as good as the main team handling a ship. When the petitioners are incompetent to board a ship, they assert that as per the internationa l convention a person with basic qualification and certification can alone be permitted to board a ship. The Indian Coast Guard is also liable to adhere to the conventions. The standard operating procedures provide for training crew for handling such ships, in tune with the newly amended international convention on standards of training, certification and watch keeping for sea farers 1978. The petitioners point out the death of 3 sarang lascars while on-board on Coast Guard ships. It is pointed out that

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 8

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there are no backwaters or inland waters around Lakshadweep.

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Respondents filed an additional counter affidavit reiterating that

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the petitioners are not being given independent charge of the barge and they are only expected to work on the barge under strict supervision of uniformed enrolled personnel with technical background and a qualified Coast Guard Officer, who is the officer in charge of the barge. Producing Ext.R2(a) detention certificate issued by M/s.Shoft Shipyard Private Ltd. it is stated that the petitioners were given training/familiarization in the ship building yard of the auxiliary barge Urja Shrota for 23 days. It is also stated that the petitioners will discharge their duty only as per the level of training imparted to them. The main operators of the barge would be the qualified technical team whom the petitioners need only assist. According to the respondents, the conditions mentioned by the petitioners referring to the conventions are relevant only for the Coast Guard Uniformed personnel and other seafarers who are to operate in the sea continuously and operate machinaries independently for prolonged duration. Producing Ext.R2(b) watch-keeping certificate awarded to the officer in charge of the barge it is stated that he is a duly qualified bridge watch-keeping officer since February, 2011. The

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W.P(C).No.1086 of 2018-I 9

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W.P(C).No.1085 of 2018-I &

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petitioners are not to perform the duties of watch-keeping on-board the barge. The Urja Shrota is only an auxiliary support vessel like any work

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boat in Coast Guard only meant to support the operations of the commissioned CG ships in coastal waters and areas close to coast and therefore taking a passage in the barge is not a violation of standard operating procedures. The primary purpose of the barge is to supply fuel and water to coast guard ships berthed at respective ports where the barge is located. It is to supply fuel and water to CG ships exclusively within the harbour and occasionally to ships at anchorage. The barge is planned to be berthed inside the lagoon at Kavaratti port to operate only within the close proximity to the coast and it will not be employed in rough weather and it cannot undertake fueling operations in deep seas or adverse weather. It is stated that in the event of any contingency during voyage the petitioner should not be left unattended. According to the respondents, it is only on account of the reluctance of the petitioners to accept the temporary duty assigned to them that they are raising the objections.

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The petitioners again filed a reply to the additional counter affidavit stating that the detention certificate issued to them by the private

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W.P(C).No.1086 of 2018-I

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W.P(C).No.1085 of 2018-I &

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shipyard is not a proficiency certificate and it is only a detention certificate for training/familiarisation for delivery acceptance trial. Certificate of proficiency is issued only after undergoing rigorous training in high seas for a definite period, as per Standardisation, Training, Certification, Watchkeeping (STCW) convention and that no training was imparted to them to make them capable of overcoming the perils of high seas. The petitioners point out that the proficiency certificates can be issued only from the training institutes approved by the DG shipping for conducting maritime course in India as given in Ext.P9 list. Petitioners apprehend that even under the supervision of the trained and uniformed personnel, they are likely to be assigned duties of the respective posts such as as Engine Drivers, etc. when they are incompetent, to perform such duties in a Barge and that for performing such duties certificate of proficiency is required. It is stated that the manning of vessel of about 200 tonnage capacity is governed by STCW convention 1978. As Urja Shrota is 320 ton capacity, the personnel on-board for manning the ship should possess all mandatory requirements as laid down in STCW convention, 1978. Producing Ext.P11, the STCW convention, 1978, Ext.P10 list of parties to the convention, Ext.P12 M.S Notice of 2012 of the Director General of Shipping and Ext.P13 – Article 8

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 11

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of United Nations Convention on the Law of Sea, the petitioners point out that even the warships and naval auxiliaries are not excluded from observing the requirements under the Convention and that no seafarer, who does not meet the requirements under the Convention, shall be sent on-board and hence the deployment of the petitioners on-board the Barge would be illegal. It is their case that the Islands in the Union Territory of Lakshadweep do not have any internal waters or territorial sea or contiguous zone of its own. Therefore, the petitioners cannot be sent on duty to exclusive economic zone even for assisting or manning the barge with 320 tonnage capacity with 1222 KW propulsion power. It is pointed out that as per Ext.P14 STCW code only those who are trained can be sent on-board whether it is a barge of Navy or Coast Guard. Civilian employees can be sent on-board a ship as a member of the crew only after fulfilling the mandatory requirements of “rating” under the STCW Code or otherwise it will amount to breach of the SOP of Coast Guard. It is also pointed out that since India is a category B council member of the international maritime organisation, it is bound to honour the international treaty obligation which have become part and parcel of the municipal laws through the rules and regulations framed by the Director General of Shipping, which cannot be flouted in the interest of

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 12

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security.

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Heard the learned counsel for the petitioners as well as the

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learned ASGI.

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Sri. T. Sanjay, the learned counsel for the petitioner, referring to

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the STCW convention as amended from time to time, and the MS Notice 12 (Ext P10) as also relying on the judgment of the Apex Court in Naresh Kumar and Anr. v. Union of India & Ors. [(2004) 4 SCC 540], asserts that the respondents are bound to observe the international conventions and treaty, and any seafarer or a member of crew can be sent on-board in adherence to the requirements laid down in those conventions and notice. At the same time the contention of the learned ASGI, is that the STCW convention does not apply to the seafarers in the ships of Coast Guard, as the seafarers serving on warships, naval auxiliaries or any other Government owned or operated ships engaged in non commercial service are excluded from it.

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Admittedly, the petitioners are employed in the Coast Guard in their respective post of engine drivers/Sarang Lascar/Lascar Class I etc. Ext.P6 movement order is issued after the petitioners were sent to Gujarat in

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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order to bring the Urja Shrota and it is an admitted fact that they were given familiarisation for 23 days for delivery acceptance, though the certificate does not state the nature of training given to them. The contention of the petitioners is that they do not have the competency to be sent on-board the ship/barge and that all the personnel who are on the board shall meet the requirements in tune with the international convention and that such conventions are binding on the coast guard also; whereas the respondents point out that the petitioners need only assist the qualified and competent persons who are already available in the barge and they are not expected to take control of the barge. As the learned counsel for the petitioners asserts that the petitioners are put under threat of their life by way of the deployment ordered in Ext.P6, it is necessary to examine whether the provisions in Merchant Shipping Act and rules as well as the international conventions and notices relied on by the learned counsel for the petitioners are to be observed by the Coast Guard especially when the contention of the respondents is that they are not required to observe it when the petitioners need only assist those competent personnel on the board.

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The Merchant Shipping Act, 1958 applies to any vessel which is

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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registered in India or which is required to be registered under the Act, unless otherwise expressly provided. A ship owned by Government is also registered under the Merchant Shipping Act, 1958, in the same manner as other Indian ships. Under Section 22 of the Act every Indian Ship which exceed 15 tons requires registration. Section 76 of the Act mandates that every ship when going to see from any port or place shall be provided with officers duly certificated under the Act in accordance with such manning scales as may be prescribed. It also provides that Central Government may prescribe different manning scales for different types of ship. Subsection 2 thereof provides that every ship shall engage such number of persons and with such qualifications as may be prescribed for maintaining watches. Section 78 provides that certificate of competency shall be granted for each of the grades namely extra Master; master of a home-trade ship, mate of home trade ship, extra first class engineer, marine engineer class I to IV, engine driver of a sea-going ship, dredger master grade I and II, Dredger mate grade I and II, dredger engineer grade I and II, dredger driver grade I and II, etc. Subsection 2 thereof provides that the certificate of competency shall state the entitlement of the holder to act as engineer or engine driver, as the case may be, of ships with the types of engine specified therein.

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W.P(C).No.1086 of 2018-I 15

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W.P(C).No.1085 of 2018-I &

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Clause (b) of Rule 87 (2) empowers the Central Government to make rules relating to the number of persons and the qualification they may possess for maintaining watches by different types of ships at sea or in any port or place and clause (d) for the qualifications to be required of persons desirous of obtaining certificates of competency for the grade falling under Section 78.

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Under Section 3(41) Sea-going' means a vessel proceeding to sea beyond inland waters or beyond waters declared to be smooth or partially smooth waters by the Central Govt. by notification in official gazette. Seaman' is defined under Section 3(42) to mean 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 to 183 includes a master.

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Under Section 88A (d) “seafarer means any person who is employed or engaged or works on board in any capacity on board a sea going ship, but does not include -

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(i) the employment or engagement or work on board in any capacity of any person in a ship of war ; or

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(ii) any government ship used for military or non-commercial

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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purposes.

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Article III of Ext.P11, STCWC provides as follows :

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“The Convention shall apply to seafarers serving on board seagoing ships entitled to fly the flag of a Party except to those serving on board:

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(a) warships, naval auxiliaries or other ships owned or operated by a State and engaged only on governmental non-commercial service; however, each Party shall ensure, by the adoption of appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, that the persons serving on board such ships meet the requirements of the Convention so far as is reasonable and practicable;

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xxxx xxxxx xxxxx xxxx”

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Thus it can be seen that there is some relaxation in observing the convention in the case of seafarers serving on board warships, naval auxiliaries, etc. However it is directed that the parties shall ensure the persons serving onboard such ships meet the requirements of the Convention so far as is reasonable and practical, by adopting appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it.

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STCW Convention as amended in 2010 provided for the standards regarding emergency, occupational safety, security, medical care and survival function. It provides that all persons employed or engaged on a seagoing ship other than passengers, shall receive approved familiarisation training in personal survival techniques and receive sufficient information and instruction, which reads as follows:

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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“1) before being assigned to ship board duties, all persons employed or engaged on a seagoing ship, other than passengers, shall receive approved familiarization training in personal survival techniques or receive sufficient information and instruction, taking account of the guidance given in part B, to be able to:

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.1. to communicate with other persons on board on elementary safety matters and understand safety information symbols, signs and alarm signals;

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.2. know what to do if,

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.2.1) a person falls overboard,

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.2.2) fire or smoke is detected,

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.2.3) fire or abandon ship alarm is sounded;

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.3. identify muster and embarkation stations and emergency escape

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routes;

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.4. locate and don life jackets;

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.5. raise the alarm and have basic knowledge of the use of portable fire extinguishers

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.6. take immediate action upon encountering an accident or other medical emergency before seeking further medical assistance on board;

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.7. close and open fire, weathertight and water tight doors fitted in the particular ship other than those for hull openings.

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Seafarers employed or engaged in any capacity on board ship on the business of that ship as part of the ship's complement to the designated safety or pollution-prevention duties in the operation of the ship shall, before being assigned to any ship board duties:

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.1. receive appropriate approved basic training or instruction in:

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.1.1. personal survival techniques as set out in table A-VI/1-1,

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.1.2. fire prevention and fire fighting as set out in table A-VI/1-2.”

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The Director General of Shipping issued Ext.P12-MS Notice 12

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of 2012 after referring to Article III of Ext.P11, prescribing the procedure for

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obtaining the certificate of competency under the STCW 1978 convention

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for master of home trade ship below 3000 gross tonnage limited to service

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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on "the coast of India and its surrounding Exclusive Economic Zone (EEZ)

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on Offshore Support Vessel" under STCW 95 for serving/retired Indian Naval Officers, which read as follows:

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“Introduction

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The international Convention on Standards of Training, Certification and Watch-keeping for Seafarers (STCW) of 1978 as amended, has established minimum standards of competence for personnel serving at sea in order to promote safety of life at sea and protection of the marine environment. The STCW Convention makes it mandatory for all Parties to prescribe framework for minimum standards of training, experience, examination and certification for each certificate under a quality system.

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¶134

The scope of the STCW Convention extends to all seafarers serving on board seagoing ships. Understanding certain commonality of navigation in the high seas for merchant ship and man-of-war and appreciating the nature of duties on such ship, the STCW Convention under Article III states that each Party shall ensure, by adoption of appropriate measures not impairing the operations or operational capabilities of such ships [warships and naval auxiliaries] owned and operated by it, that the persons serving on board such ships meet the requirements of the convention so far as is reasonable and practicable.

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After extensive deliberation by a Joint Working Group comprising of representatives from the Naval Headquarters, the Directorate General of Shipping and the Indian Shipping Industry this notice is being promulgated.

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For the purpose of this notice "Offshore Support Vessel (OSV)" means a vessel which is primarily used for the transportation of stores, materials, equipment or personnel to, from and between offshore installations including Towing and Anchor Handling Operations and upon meeting the Offshore industry requirements w.r.t. sea service, experience as applicable, the scope of the scheme would be extended to include specialized vessels of Offshore Sector such as Multipurpose Support Vessels, Platform Support Vessels, DSV, AHTSV, Special Purpose Vessels, Seismic Research Vessels, Pipe Laying Vessels, ROV Support Vessels, FPSO/FSO. Additional requirements under STCW 78/2010 (as amended) with respect to sea service, experience

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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and certification in consultation with the stakeholders shall apply to extend the term to Inter Island Passenger liner and Dredgers etc, under this scheme

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Objective :

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Objective of this M.S. Notice is to prescribe the procedures for obtaining Certificate of Competency (Limited) under Regulation II/2 STCW 78 Convention as amended for "Master of a Home-Trade Ship (below 3,000 gross tonnage) limited to service on "the coast of India and its surrounding Exclusive Economic Zone (EEZ) on Offshore Support Vessel" under STCW 95 and MS (STCW) Rules, 1998 for Indian Naval Officer who have served in the Executive Branch of Defence.

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Definitions:

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In this MS Notice, definitions as stipulated in the MS (STCW) Rules, 1998 will be applicable unless the context otherwise requires.

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Enabling Provisions for the issuance of Certificate of Competency (CoC):

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A Certificate of Competency (Limited) may be issued under the Regulation II/2 of the STCW Convention 1978 as amended and MS (STCW) Rules, 1998 for "Master on ships (Master of a Home-Trade Ship) of between 500 and 3,000 gross tonnage operating in Near-Coastal Voyages" limited to service on "Off Shore Support Vessels operating in Indian territorial waters and EEZ" under the following provisions:

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i.Article III (a) of the STCW 1978 Convention, as far as various competencies under Navigation function are concerned. ii.Regulation I/3 of the STCW 95 - Principles governing nearcoastal voyages

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iii.Regulation II/2 of the STCW 95 - Master and chief mate on ships of between 500 and 3,000 gross tonnage

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iv.Para 8, Section A-II/2 of STCW Code A - "An Administration may issue a certificate restricted to service on ships engaged exclusively on near-coastal voyages and, for the issue of such a certificate, may exclude such subjects as are not applicable to the waters or ships concerned, bearing in mind the effect on the safety of all ships which may be operating in the same waters." v.Sec. 456 of the Merchant Shipping Act, 1958 - Power to exempt vi.Rule No. 46 of the MS(STCW) Rules, 1998 - Power to exempt vii.Category of Certificate of Competency awarded under the scheme:

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Certificate of Competency shall be granted for the following grade: "Master of a Home-Trade Ship (below 3,000 gross tonnage) limited to service on "the coast of India and its surrounding Exclusive Economic Zone (EEZ) on Offshore Support Vessel" under STCW 95 and MS (STCW) Rules, 1998.

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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xxx

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Quality Standards:

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Naval/other institutes imparting training are to ensure that their training procedures and internal assessments are continuously monitored through established quality standards systems including the qualifications and experience of instructors and assessors as prescribed under Regulation I/8 and I/6 of STCW 95 respectively.

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Standards of Medical fitness:

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Every candidate for certification shall provide satisfactory proof of a medical fitness certificate including eyesight and hearing as prescribed in the Merchant Shipping (Medical Examination) Rules, as applicable.

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Seagoing service Eligibility:

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Minimum 54 months service on sea-going ships of the Indian Navy/Coast Guard, of which at least 24 months of service shall be performed as independent bridge watch-keeping officer.

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Should have obtained a full Naval (or equivalent in Indian Coast Guard Service) watch-keeping certificate

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xxx xxx”

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It further provides for the list of modular courses to be successfully completed by the candidates such as :Personal Safety and Social Responsibilities Course (PSSR), Advanced Fire Fighting Course (AFF),Proficiency in Survival Craft and Rescue Boats Course (PSCRB),Medical Care Course (MC),Ship Security Officer Course (SSO), Radar Observer Simulator Course (ROC), Automatic Radar Plotting Aid Course (ARPA), Radar, ARPA and Navigational Simulator Course (RANSCO), Electronic Chart Display and Information System Course (ECDIS),Global Maritime Distress and Safety System Course (GMDSS),

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W.P(C).No.1086 of 2018-I 21

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W.P(C).No.1085 of 2018-I &

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Ship Maneuvering Simulator Course (SMS),Candidates are exempted from attending the following modular courses - Personal Survival Techniques, Fire Prevention and Fire Fighting, Elementary First Aid., etc. It further provides for career progression for the Ex-Naval officers holding the certificate of competency issued under this MS Notice, upon fulfillment of further training, sea service/experience and certification, as prescribed from time to time in compliance of STCW 78 (as amended) and industry consultation.

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Under Section 2(22) of Ministry of Shipping Act, Master is defined as: “master” includes any person (except a pilot or harbour master) having command or charge of a ship. Section 456 provides for power of Central Government to exempt, which reads as follows:

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“456. Power to exempt .—(1) Notwithstanding anything contained in this Act, the Central Government may, by order in writing and upon such conditions, if any, as it may think fit to impose, exempt any ship or sailing vessel or any master, tindal or seaman from any specified requirement contained in or prescribed in pursuance of this Act or dispense with the observance of any such requirement in the case of any ship or sailing vessel or any master, tindal or seaman, if it is satisfied that that requirement has been substantially complied with or that compliance with the requirement is or ought to be dispensed with in the circumstances of the case:

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[Provided that no exemption which is prohibited by the Safety Convention shall be granted under this sub-section.]

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(2) Where an exemption is granted under sub-section (1) subject to

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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any conditions, a breach of any of those conditions shall, without prejudice to any other remedy, be deemed to be an offence under this sub-section.

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(3) xxxx xxxxx xxxxx”

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The judgment in Naresh Kumar 's case ( supra ) was in a case where the petitioners, who were employed in Merchant Navy after they were relieved from Indian Navy, claimed that they need not acquire any further certificate, to continue in service. The question which considered in that case is whether the certificate of service (CoS) issued under Section 80 of the Merchant Shipping Act, 1958 could be treated as a certificate under the STCW 1978, as amended by 1995. The petitioners were holders of CoS issued to them under Section 80 of the Act, without examination. Under Section 80 a person who had attained the rank of Lieutenant in the executive branch of Indian Navy shall be entitled to a certificate of service as master of foreign going ship without examination. It further provided that certificate of service shall differ in form from a certificate of competency. By way of Amendment Act, 1986, Section 80 was deleted. However, it was provided that the said amendment shall not apply to any certificate of service granted under Section 80 before the commencement of the Act. The Apex Court held that notwithstanding the amendment to Section 80 and Section 5 of the

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W.P(C).No.1086 of 2018-I 23

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W.P(C).No.1085 of 2018-I &

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Amending Act, with the emergence of 1995 convention, there is no provision for indefinite continuance of CoS in respect of officers of the merchant ships and navy, and India being a signatory to the 1995 convention, it has to ensure uniform standards as prescribed by the convention. Referring to Article VII of the convention, which insisted a certificate of competency, code of service issued in accordance with the laws as per the convention which insisted that administration shall ensure that all the candidates for certification shall be examined and certificated in accordance with the convention, it was held that after entering into the merchant navy the petitioners were liable to complete the approved training assessment in order to continue on employment where Rule 11 of the merchant shipping rules insisted that all the existing CoS holders, who intend to become holders of COC shall be required to complete approved training assessment and Rule 15 of that Rules required that every master on a seagoing ship of 500 gross tonnage or more shall hold an appropriate certificate of competency. The Apex Court held that the petitioners therein were required to acquire such certificate in accordance with the rules and they cannot be exempted, referring to various provisions contained in the STCW convention as amended from time to time referring to MS notice 4 of

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W.P(C).No.1085 of 2018-I &

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W.P(C).No.1086 of 2018-I

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2001 issued on the basis of 1978 convention as amended in 1995, which was issued to prescribe the procedure of continued employment of officers in possession of certificate of service as Master (FG) by obtaining a certificate of competency in view of the amended provisions of STCW. The procedures of certification was described in the said notice for different kinds of naval officers. The certificates to be possessed by each of the categories of naval officers were provided in clause iv of Rule 11. It was found that different standards are prescribed for different categories to achieve the competence of par excellence, keeping in view of the emergency situation, occupational safety, medical care, survival functions, etc. while sailing on sea and that such procedures have been prescribed to attain the uniformity of standard internationally. Article 6 of the convention required the Director General of Shipping to certify that a person has been found duly qualified in accordance with the provisions of the regulation. It also required the certificate holders to undergo appropriate refresher, competing training or assessment. The Apex Court found that the naval officers, who were having the certificate of service, were never assessed by virtue of Section 80 of the Merchant Shipping Act and they were given certificate of

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W.P(C).No.1085 of 2018-I & W.P(C).No.1086 of 2018-I 25

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service without any examination. It was found that the classification was aimed in order to achieve the uniformity of competence internationally.

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However, from Ext.R2(a) it is seen that the petitioners have been given the training for familiarisation for delivery acceptance of the auxiliaries barge Urja Shrota for the period from 14.4.2017 to 6.5.2017. It is not clear whether the said training included any of the personal survival techniques as provided in the convention.

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Respondents have stated that the ship would be in the independent charge of the Assistant Commandant Vinay Kumar Upadyay, who is having Ext.R2(b) Full Coast Guard Watch-keeping Certificate. According to the respondents, the convention does not apply to seafarers serving on warships, naval auxiliaries or any other Government operated ships engaged in non commercial service. Therefore, the petitioners cannot insist that they cannot be sent on board, except with the competency certificate/training as provided in the STCW convention. The judgment of the Apex Court which related to the requirement of the officers of merchant navy directing them to acquire the competency certificate in accordance with the STCW convention cannot be made applicable to the petitioners who are

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W.P(C).No.1086 of 2018-I

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to accompany the barge ICGS Urja Shrota. It is pertinent to note that the definition of seafarer in Section 88A of the Act which excludes those in Government Ships, continues to be in force without any amendment. However, the respondents should see that the safety measures as well as the mandatory requirements in the conventions are observed as far as possible as required in MS notice 12 of 2012.

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In the above circumstances, though I am of the view that Ext.P6 is issued in public interest, the respondents shall ensure that the petitioners are not in any way assigned duties to take control of the ship/barge and as stated in the counter affidavit they shall be assigned only with the duties to assist the qualified and competent person on-board ICGS Urja Srotha and that they are not compelled to operate the ship contrary to what is stated in the counter affidavit and to do anything for which they are not qualified and competent.

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The writ petitions are disposed of accordingly.

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Sd/-

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(P.V.ASHA, JUDGE)

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rtr/

T.J.Joseph v. the Director General

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T.J.Joseph v. the Director General

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