SABEEHA FAIKAGE & ORS.versusUNION OF INDIA & ORS.

                        [2012] 10 S.C.R. 862


A                   SABEEHA FAIKAGE & ORS.
                                   v.
                      UNION OF INDIA & ORS.
                (Writ Petition (Civil) No. 505 of 2006)
                         OCTOBER 18, 2012
B
         [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

          Constitution of India, 1950 - Articles 32, 21 and 142 -
    Recruitment of Indian seafarers - On the vessel of a foreign
C   country - Through Recruitment and Placement Service
    providers - The vessel, comprising of 10 Indian seafarers,
    went missing in the high seas on 5.9.2005- Service providers
    informed the Director General of Shipping about the missing
    of vessel on 10.10.2005 - The Director General on
D   19. 10. 2005 requested the country, to which the vessel
    belonged, to carry out the investigation into the casualty -
    Indian government communicated to the relatives of the
    Indian seafarers on the vessel certifying that they were
    presumed to be dead - Writ of mandamus by relatives of the
E   Indian seafarers on the vessel, seeking investigation to the
    disappearance of the seafarers and inquiry to find out on
    account of what, Indian Government certified that their
    relatives were presumed to be dead - Supreme Court initially
    issued notice limited to the question whether Maritime
F   Administration of India was invited to take part in the marine
    casualty investigation as provided in Para 4 of M. S. Notice
    26 of 2002 - By subsequent order, the Court called upon the
    State to furnish details with regard to Conventions and Codes
    relating to marine casualty incidents, and called upon the
G   service providers to release interim compensation amount at
    the rate of 40,000 US Dollars for the Officers and 25,000 US
    Dollars for non-officers, to be deposited with the Court - Held:
    State was not liable for violation of right to life under Article
    21 and hence not liable to pay any compensation - The court
    cannot award punitive damages, as there was no inaction with
H                                  862
  SABEEHA FAIKAGE & ORS. 11. UNION OF INDIA & 863
                    ORS.
 malicious intent, or conscious abuse or intentional doing of A
 some wrongful act or negligence on part of the State - The
 service providers, being private individuals, protection under
Article 21 is not available to them - Further they are not liable
 to pay compensation because as per Shipping Act of the flag
country of the vessel, the liability to pay compensation is on B
 the vessel ownerlsalvors or their insurers - Even if the service
provides are guilty of violation of Rules 2005 having not
reported the casualty to the Director General of Shipping
within 48 hours, the Court cannot give any direction as their
licence stands already withdrawn as per rule 6 of 2005 Rules c
in relation to some other case - The amount of
compensation, already deposited, cannot be said to be
inadequate in absence of material to show age, income of
seafarers and other relevant factors - The service providers
also cannot be directed to pay compensation as per Collective
                                                                  0
Bargaining Agreements unless it is shown that they were
bound by collective Bargaining Agreements - The lacuna in
respect of quantum of insurance coverage in 2005 Rules
cannot be filled up in exercise of powers under Article 142
because numerous factors are to be taken into consideration
in making such law - As the State has indicated setting up of E
Indian Maritime Causality Investigation Cell and amendment
of 2005 Rules, State directed to expedite the proposal -
Clarified that compensation received by the relatives of the
seafarers is without prejudice to their claim for higher
compensation in any appropriate proceedings - Merchant F
Shipping (Recruitment and Placement of Seafarers) Rules,
2005 - Shipping Act, 2004 of Saint Vincent and Grenadines
- ss. 332, 333, 334 and 335.

    P.O. Shamdasani v. Central Bank of India AIR 1952 SC        G
59: 1952 SCR 391 - followed.

     Municipal Corporation of Delhi v. Association of Victims
ofUphaar Tragedy and Ors. AIR 2012 SC 100: 2011 SCR 1
- relied on.
                                                                 H
    864       SUPREME COURT REPORTS                [2012] 10 S.C.R.


A       Lata Wadhwa and Ors. v. State of Bihar and Ors. (2001)
    8 SCC197: 2001 (1) Suppl. SCR 578 - distinguished.

       Indian Council for Enviro-Legal Action v. Union of India
  and Ors.(2011) 8 sec 161: 2011 (9) SCR 146; Union of
8 India v. Associationfor Democratic Reforms and Anr. (2002)
  5 SCC 294: 2002 (3) SCR 696 ; Ashok Kumar Gupta and
  Anr. v. State of U.P. and Ors. (1997) 5 SCC 201: 1997 (3)
   SCR, 269 ; Vineet Narain and Ors. v. Union of India and
  Anr. (1998) 1 SCC 226: 1997 (6) Suppl. SCR 595- referred
C to.
                           Case Law Reference:
          2011 (9) SCR 146              Referred to        Para 9
          2002 (3) SCR 696              Referred to        Para 9
D
          1997 (3) SCR 269              Referred to        Para 9
          19~7 (6)   Suppl. SCR 595 Referred to            Para 9
          1952 SCR 391                  Followed           Para 12
E         2011 SCR 1                    Relied on          Parq 14
        CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
    505 of 2006.
          Under Article 32 of the Constitution of India.
F
       H.P. Raval, ASG, Rajeev Dutta, Ashok Bhan, P. Soma
  Sundaram, R. Krishna Kumar, B. Vinodh Kanna, P.B. Suresh,
  Vipin Nair (For Temple Law Firm), Rahul Dhawan,
  Pukhrambam Ramesh Kumar, Asha G. Nair, A. Dev Kumar,
G S.S. Rawat, D.S. Mahra •. David C. Gomes, O.P. Gaggarforthe
  Appearing Parties.
          The Order of the Court was delivered by
      A.K. PATNAIK, J. 1. The petitioners have lost their
H husbands/sons in a marine casualty and have filed this writ
  SABEEHA FAIKAGE & ORS. v. UNION OF INDIA & 865
            ORS. [A.K. PATNAIK, J.]
petition under Article 32 of the Constitution complaining of the   A
breach of the fundamental right to life under Article 21 of the
Constitution.
      2. The facts very briefly are that the husbands of petitioner
 nos. 1, 2 and 3 and the sons of petitioner nos. 4 and 5 were
 recruited and placed through respondent nos. 4 and 5 to work B
 as Seafarers on tugboat Jupiter-6 carrying the flag of Saint
Vincent and the Grenadines. On 21.08.2005, Jupiter-6 along
with its crew comprising 10 Indians and 3 Ukrainians, left Walvis
 Bay in Namibia and was towing a dead ship Satsung on its
way to Alang in Gujarat in India. On 05.09.2005, Jupiter-6 went C
missing in the high seas. On 10.10.2005, respondent no. 4
informed the Director General of Shipping, Bombay, that it had
received a distress signal from Jupiter-6 via its life saving radio
equipment on board and a search was conducted from the
place where distress signal originated, which was 220 nautical D
miles South of Port Elizabeth, South Africa, but Jupiter-6 could
not be located. Pursuant to reports in a section of the media
about the missing of Jupiter-6 since 08.10.2005, the Director
General of Shipping, Bombay, issued a press release on
 15.10.2005 that the Ministry of Shipping and Road Transport E
and Highways had alerted the Indian Coast guard which, in turn,
has alerted the South African Search and Rescue Region as
Jupiter-6 was last sighted near Cape Town in South Africa and
that all efforts are being made to trace the crew members. On
25.04.2006, however, the respondent no. 4 sent a letter to the F
petitioners saying that all efforts to search the missing Jupiter-
6 and her 13 crew members have proved unproductive and that
the owners of the vessel are coordinating with the underwriters
for nomination of local P & I correspondent who will deal with
them for requisite compensation package and on getting further G
information from the local P & I correspondent, the petitioners
will be informed of the further follow-up action to process the
claims. Finally, the petitioners received the communication
dated 17.08.2006 from the Government of India, Ministry of
Shipping, Government Shipping Office, Mumbai, certifying that H
their husbands/sons were presumed to be dead.
    866       SUPREME COURT REPORTS                [2012] 10 S.C.R.


A         3. The petitioners have prayed for inter alia a writ of
    mandamus/direction to the respondents to conduct an
    investigation into the mysterious disappearance of their
    husbands/sons who were on board Jupiter-6. The petitioners
    have also prayed for an enquiry to find out what transpired
B   between the Government of India and the Saint Vincent and the
    Grenadines on account of which the Government of India has
    certified that their husbands/sons are presumed to be dead.
    After ;>erusing the Merchant Shipping Notice No.26 of 2002
    dated 10.10.2002 issued by the Government of India, Ministry
C   of Shipping, Directorate of the Director General of Shipping,
    (for short "M.S. Notice 26 of 2002"), this Court issued notice
    on 10.11.2006 in the writ petition to the respondents confined
    to the question as to whether the Maritime Administration of the
    State (India) was invited to take part in the marine casualty
    investigation as provided in para 4 of M.S. Notice 26 of 2002.
0
    In response to the notice, a counter affidavit was filed on
    03.01.2008 on behalf of respondent nos. 1, 2 and 3 stating
    therein that they became aware of the casualty for the first time
    when they received a communication dated 10.10.2005 about
    the incident from respondent no.4 and that the administration
E   of the State (India) was not invited to participate in the
    investigation as per para 4 of M.S. Notice 26 of 2002.
      4. The matter was thereafter heard and on 24.09.2008 this
  Court passed an· order, paragraph 4 of which is extracted
F hereinbelow:
           4. The office of Director General of Shipping has issued
           M.S.Notice No.26 of 2002 dated 10.10.2002 in regard to
           the procedure to be followed in the event of marine
           casualties and incidents involving Indian citizens on board
G          of foreign flag vessels. To ascertain whether there is any
           basis for the grievance put forth by the petitioners, we,
           therefore, direct the Directorate to collect, analyze and
           prepare a report with reference to the following information
          .and file the same with an affidavit of a responsible officer
H          from the office of the Director General of Shipping.
SABEEHA FAIKAGE & ORS. v. UNION OF INDIA & 867
          ORS. [A.K. PATNAIK, J.]

  (a) How many reports of marine casualties have been               A
  received by the Indian Government after 10.10.2002
  involving Indian citizens on board of foreign flag vessels
  and how many are received within 48 hours of the
  occurrence of the incident as required by the Directorate?
  (b) In how many of such cases reports have been received          B
  by the Directorate from the manning agents of the ships
  in India who recruited the seafarers as required by clause
  S(a) and (b) of M.S. Notice dated 10.10.2002?
  (c) In how many cases, Indian Government has been                 c
  invited to participate in the marine casualty investigation
  by the lead State or the flag State (as required by paras
  5.2, 6.3 and 9.1 of the Code for the Investigation of Marine
  Casualties and Incidents)?
  (d) In how many cases the Indian Government has sent its          D
  comments within 30 days from the date of receiving the
  draft of the final report from the lead investigating State (as
  required by clause 12.1 of the Code for the Investigation
  of Marine Casualties and Incidents) to enable the lead
  investigating State to incorporate/ amend I modify the final      E
  report?
 (e) In how many cases the Indian Government has made
 available to the public the final report in regard to marine
 casualty incidents and, if so, the period and the manner in
 which it has been so made public (as required by clause            F
 12.3 of the Code for the Investigation of Marine Casualties
 and Incidents)?
 (f) In how many cases Indian Government has taken action
 against the recruiting agents/manning agents/managers of           G
 the foreign flag ships which employed Indian crew and in
 what manner it has safeguarded the interest of the Indian
 crew (particularly in view of its M.S. Notice No.13 of 2005
 dated 25.10.2005 of the Directorate which admits the
 receipt of several complaints about the failure of shipping
                                                                    H
    868       SUPREME COURT REPORTS                  [2012) 10 S.C.R.


A         companies and recruiting agents of Indian seafarers in
          reporting marine casualties involving them to the
          Government and the family members) for non-compliance
          with its direction?
                 The above information, if made available, will enable
B         us to decide whether there is really implementation or
          compliance of the Conventions and Codes relating to
          marine casualty incidents. We find that the counter affidavit
          filed by the Indian Government does not furnish necessary
          and sufficient details.
c
               Learned counsel for the petitioner and learned
          counsel for the ship managers and the learned ASG may
          also submit their suggestions for proper and better
          implementation of the existing Conventions and Codes.
D                The pendency of this petition or any further
          investigation in the matter by any agency should not come
          in the way of either the Insurers/owners/managers of the
          tug paying compensation to the family members of the
          missing crew. In fact, learned counsel for respondent No.4
E         and 5 stated that they have offered interim compensation
          to the families. The petitioners deny that any such offer
          was made. The learned counsel for respondents 4 and 5
          stated that even now respondents 4 and 5 are willing and
          ready to make the interim payment without prejudice to the
F         rights and contentions of both the parties and the same
          will be despatched within 10 days from today and that they
          will get iri touch with the insurers for release of the amounts
          to the missing crew family members expeditiously. We
          make it clear that receipt of any amount by the family
G         members of the missing crew may receive any
          compensation tendered or paid by the managers or
          insurers will be without prejudice and receipt of such
          payment will not prejudice their case in any manner."
      5. A reading of the para 4 of the order dated 24.09.2008
H would show that this Court limited the scope of the writ petition
 SABEEHA FAIKAGE & ORS. v. UNION OF INDIA & 869
           ORS. [A.K. PATNAIK, J.]
to two issues: (i) the safety of Indian citizens on board of foreign A
flag vessels and (ii) in case such Indian citizens on board a
foreign flag vessel lost their lives, the compensation payable
to their kith and kin. On the first issue, the Court called upon
the Union of India to furnish the necessary and sufficient details
with regard to implementation of the Conventions and Codes B
relating to marine casually incidents and on the second issue,
the Court called upon respondents 4 and 5 to release interim
compensation to the family members of the missing crew and
clarified that the compensation paid by respondents 4 and 5
or the insurers will be without prejudice to the claim of the family c
members of the crew.
      6. Pursuant to the aforesaid order passed on 24.09.2008,
respondents 1, 2 and 3 filed affidavits from time to time referring
to the steps taken by the Government of India to ensure the
safety and security of seafarers including a chart showing the D
position of various welfare measures and safety measures
relating to seafarers in 2006 and 2011. Pursuant to the order
passed on 24.09.2008 of this Court, the respondent nos. 4 and
5 also informed this Court that Mis James Mckintosh Company
Pvt. Ltd., Mumbai, have on behalf of the owners of Jupiter-6 E
offered to pay a compensation at the rate of 40,000 US Dollars
for the death of each of the officers on board Jupiter-6 and at
the rate of 25,000 US Dollars for the death of each of the non-
officers on board Jupiter-6. They further informed this Court that
out of the thirteen crew members of Jupiter-6, the three F
Ukrainian nationals have been paid compensation by the
owners of the vessel and the widow of one non-officer Mr.
Subhash Das has been paid compensation of 25,000 US
Dollars. Accordingly, on 15.11.2010 the Court directed that a
sum of 2,85,000 US Dollars for the remaining nine Indian G
seafarers (four officers and five non-officers) be deposited in
Court for payment to their family members without prejudice to
their claims for higher compensation. Thereafter, a sum of
Rs.1,29,29,386/- equivalent to 2,85,000 US Dollars was
deposited by respondents 4 and 5 and by order dated H
    870     SUPREME COURT REPORTS                [2012) 10 S.C.R.

A 28.03.2011, the Court permitted the legal heirs/representatives
  of the officers/seamen to lodge their claims for disbursement
  of compensation with the Registrar (Judicial) who was required
  to verify the claims and submit a report to this Court with regard
  to disbursement. Registrar (Judicial) is now in the process of
B verifying the claims and disbursing the amounts to the legal
  heirs of the deceased Indian seafarers.
         7. At the hearing of the writ petition, learned counsel for
    the petitioners Mr. P. Soma Sundaram and Mr. Vipin Nair
    submitted that under Article 21 of the Constitution every person
C   has been guaranteed the right to life and this right has been
    violated in the case of the seafarers on board Jupiter-6. They
    submitted that though Jupiter-6 went missing in the high sea
    on 05.09.2005, the respondent no.4 informed the Government
    about the loss of Jupiter-6 35 days after 05.09.2005, i.e. on
D   10.10.2005, and the Government did not conduct any
    investigation into the incident and issued death certificates on
    17.08.2006 saying that the crew members of Jupiter-6 are
    presumed to be dead. They submitted that under M.S. Notice
    26 of 2002 the manning agents who have recruited the
E   seafarers on board the foreign flag vessel, in the present case
    respondent nos.4 and 5, were required to inform the
    Government about the marine casualty within three days of the
    incident and as the Indian nationals were involved in the marine
    casualty, the Government of India was required to conduct a
F   marine casualty investigation forthwith. They submitted that
    under the Merchant Shipping (Recruitment and Placement of
    Seafarers) Rules, 2005 (for short 'the Rules 2005) and in
    particular Rule 3 thereof, the Government was also required to
    conduct an investigation when a complaint is received against
G   the Recruitment and Placement service providers, but no such
    enquiry has been conducted by the Government on the
    complaint regarding missing of Jupiter-6 despite complaints
    having been made to the Government. They also referred to the
    Flag State Report of the Maritime Investigation Branch, Saint
H   Vincent and the Grenadines, Report No.5 of September 2005,
  SABEEHA FAIKAGE & ORS. v. UNION OF INDI/, &              871
            ORS. [A.K. PATNAIK, J.]

which states that disappearance of Jupiter-6 along with her      A
crew remains an enigma. They submitted that this report would
go to show that respondent nos. 4 and 5 had been indicted for
the incident and yet no action has been taken by the
Government against respondent nos. 4 and 5.
      8. Learned counsel for the petitioners next submitted that B
 under Rule 4 (3)(a) of the Rules 2005 read with Form-Ill
prescribed by the Rules 2005, it is mandatory for the
 Recruitment and Placement service providers to provide
insurance cover to the seafarers they employ. They submitted
that it will be clear from the declaration to be filed by the C
Recruitment and Placement service providers in Form-Ill along
with the application for licence that they are required to ensure
that all seafarers recruited and placed with the ship owners are
adequately covered by insurance cover. They submitted that
under Rule 3 (1)(j) of the Rules 2005, the Recruitment and D
Placement service providers also have the legal obligation to
inform the seamen's employment office concerned and next of
kin of the seafarer of each death or disability of the seafarer
within forty-eight hours of such death or disability as well as the
details of the insurance coverage of the seafarers but in spite E
of such legal requirements, respondent nos. 4 and 5 have not
disclosed the details of the insurance coverage to the seafarers.
They submitted that respondent nos. 4 and 5 are responsible
for providing adequate insurance coverage as they had
assumed the responsibility for operation of the ship as F
Managers and were actually the ship owners and were thus
liable for the compensation payable to the petitioners. They
argued that the insurance amounts of 40,000 US Dollars for
each of the officers and 25,000 US Dollars for each of the non-
officers deposited by respondent nos. 4 and 5 in this Court are G
not adequate and the compensation amounts should have been
much higher as indicated in the Model Collective Bargaining
Agreements for Indian seafarers filed along with the letter dated
02.11.2010 of the Government of India addressed to the
Registrar of this Court annexed to the affidavit filed on behalf H
    872     SUPREME COURT REPORTS                [2012] 10 S.C.R.

  of respondent nos.1, 2 and 3 on 19.07.2011. They r~lied on
A the decision of this Court in Lala Wadhwa & Ors. v. 'State of
  Bihar & Ors. [(2001) 8 SCC 197] in which this Court, while
  exercising its powers under Article 32 of the Constitution,
  directed payment of higher compensation for each of the
  claimants on account of deaths in a fire tragedy by Tata Iron
8 and Steel Company Limited. They also relied on the recent
  decision of this Court in Municipal Corporation of Delhi v.
  Association of Victims of Uphaar Tragedy & Ors. [AIR 2012
  SC 100] in which this Court enhanced the compensation
  payable to the claimants on account of death and injury in a fire
C tragedy in Uphaar Cinema Hall. They submitted that similar
  directions for determination of the higher compensation by the
  Registrar of this Court may be given in this case also.
       9. learned counsel for the petitioners finally submitted that
D though Rules 2005 mandates that insurance coverage has to
  be provided to Indian seafarers, it does not mention the amount
  for which the insurance coverage is to be done. According to
  the learned counsel for the petitioners, this lacuna in law in
  respect of quantum of insurance coverage should be filled up
  by this Court by invoking its powers under Article 142 of the
E Constitution. In support of this submission, they relied on the
  judgments of this Court in Indian Council for Enviro-Legal
  Action v. Union oflndia & Ors. [(2011) 8 SCC 161 ], Union of
  India v. Association for Democratic Reforms and Anr. [(2002)
  5 SCC 294], Ashok Kumar Gupta & Anr. v. State of U.P. &
F Ors. [(1997) 5 SCC 201] and Vineet Narain & Ors. v. Union
  of India & Anr. [(1998) 1 SCC 226]. They submitted that this
  Court should declare that in case of a marine casualty involving
  Indian citizens, the amount payable in case of death of an officer
  would be 89,100 plus US Dollars and the amount payable in
G case of death of a child of an officer under 18 years would be
   17,820 US Dollars and the amount payable in case of death
  of a non-officer would be 82,500 US Dollars plus and the
  amount payable in case of death of a child of a non-officer
  under 18 years 16,500 US Dollars.
H
  SABEEHA FAIKAGE & ORS. v. UNION OF INDIA &                  873
            ORS. [A.K. PATNAIK, J.]
     10. Mr. Rajeev Dutta, learned counsel appearing for              A
respondent nos.4 and 5, submitted that notice in the writ petition
was initially limited to the question as to whether the Maritime
Administration of the State (India) was invited to take part in
the marine casualty investigation as provided in para 4 of M.S.
Notice 26 of 2002, but subsequently by order dated 24.09.2008         B
of this Court the scope of the enquiry in the writ petition has
been widened to include the safety of the seafarers and
disbursement of compensation to the seafarers on board
Jupiter-6 who have lost their lives. Relying on the counter
affidavit filed by respondent no.4, he submitted that respondent      c
no.4 came to know about Jupiter-6 going missing on
08.10.2005 at about 2100 hrs. Indian Standard Time (Saturday)
and immediately thereafter, respondent no.4 informed the
Director General of Shipping on 10.10.2005 at about 1100 hrs.
Indian Standard Time (Monday) about the incident, i.e. within         D
the stipulated time as per M.S. Notice 26 of 2002. He argued
that there was, therefore, no delay on the part of respondent
no.4 to inform the Government of India about the incident. He
submitted that the seafarers, who were employed and placed
on board Jupiter-6, were bound by the terms of the employment         E
contract which provided that they will be governed by the law
of Flag State and the employment contract did not stipulate for
compensation in case of death or disability nor was the
employment contract governed by the provisions of the
Collective Bargaining Agreements. He submitted that under
Section 338 of the Shipping Act, 2004 of Saint Vincent and the        F
Grenadines, the Flag State of Jupiter-6, the limits of liability of
the ship owner have been fixed for claims arising on any distinct
occasion and the compensation deposited in this Court at the
rate of 40,000 US Dollars in case of death of officers and
25,000 US Dollars in case of death of non-officers is in              G
accordance with the provisions of Section 338 of the Shipping
Act, 2004 of Saint Vincent and the Grenadines. He vehemently
argued that since the aforesaid compensation amount has been
deposited for disbursement to the legal heirs of the deceased
seafarers, respondent nos.4 and 5 are not liable for any amount       H
     874      SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A    of compensation and this Court should not, therefore, direct for
     any higher amount of compensation than what has been
     deposited.
           11. Mr. H.P. Raval, learned Additional Solicitor General for
     respondent nos.1, 2 and 3, submitted that the Merchant
8    Shipping Act, 1958 does not apply to seamen on board of a
     ship or a vessel of a foreign country. He referred to the counter
     affidavit filed on behalf of respondent nos.1, 2 and 3 on
     03.01.2008 and the annexure thereto and submitted that the
     respondent no.4 by its letter dated 10.10.2005 informed the
~
,,   Director General of Shipping about the Jupiter-6 going missing
     and on 19.10.2005, the Surveyor lncharge-cum-Deputy Director
     General of Shipping requested Saint Vincent and the
     Grenadines to carry out investigation into the casualty as Indian
     nationals were involved in the casualty. He referred to the
D    additional affidavit filed on behalf of the Union of India in
     December 2009 in which the various measures taken by the
     Government of India for the safety of the seafarers have been
     detailed. He submitted that the Rules 2005 make it obligatory
     for Recmitment and Placement servic8 providers to declare that
E    all seafarers recruited and placed on board by them would be
     adequately covered by insurance cover, but the quantum of
     compensation for which the seafarers are to be insured in case
     of injury or death have not been indicated therein and this has
     resulted in variable amounts of compensation being paid to
F    Indian seafarers working in different shipping companies, often
     resulting in exploitation of categories which are lesser in
     demand. He also referred to the affidavit filed on behalf of
     respondent nos.1, 2 and 3 on 20. 09.2011 in which a chart has
     been extracted to show how the Government of India proposes
G    to improve the welfare and safety measures relating to
     seafarers over what existed in 2006. He finally submitted that
     so far as respondent no.4 is concerned its application for
     registration as Recruitment and Placement service providers
     has been rejected by the speaking order dated 16.06.2008 of
H    the Director, Seamen's Employment Office, Department of
  SABEEHA FAIKAGE & ORS. v. UNION OF INDIA &                    875
            ORS. [A.K. PATNAIK, J.]
Shipping, for default in paying compensation to the crew of a          A
vessel other than Jupiter-6, namely, M.V. RAZZAK, which also
went missing.
      12. We have considered the submissions of learned
 counsel for the parties and we find that in P.O. Shamdasani v.
 Central Bank of India [AIR 1952 SC 59] a Constitution Bench           8
 of this Court has held that right to life and personal liberty
 guaranteed under Article 21 of the Constitution is only available
against the State and that Article 21 was not intended to afford
protection to life and personal liberty against violation by private
individuals. Hence, the main question that we have to really           C
decide in this case is whether the Union of India (not respondent
no.4 nor respondent no.5) was liable for violation of the right to
life guaranteed under Article 21 of the Constitution and was
liable for any compensation to the petitioners for not causing a
marine casualty investigation when Jupiter-6 went missing in           D
the high seas. Jupiter-6 was carrying the flag of Saint Vincent
and the Grenadines, although it had on its board some Indian
seafarers. The Director General of Shipping has issued M.S.
Notice 26 of 2002, which lays down the procedure with regard
to marine casualty investigation involving Indian citizens on          E
board foreign flag vessels. M.S. Notice 26 of 2002 states that
India is a major supplier of manpower to global shipping and
in the recent past it has been observed with concern that many
of the accidents/ incidents at sea involving Indian citizens on
board foreign flag vessels have not been reported to the Indian        F
Maritime Administration. It also states that the Code for
Investigation of Marine Casualties and Incidents had been
adopted on 27.11.1997 by the IMO Assembly in its 20th
Session and the code provides for casualty investigation with
the involvement of different interested States. It has been further    G
clarified in para 2 of M.S. Notice 26 of 2002 that this Code
applies to either one or more interested States that are
substantially interested in marine casualty and the substantially
interested States includes the State whose nationals have lost
their lives or received serious injuries as a result of the marine     H
    876         SUPREME COURT REPORTS               (2012) 10 S.C.R.


A   casualty. It is provided in para 2 of M.S. Notice 26 of 2002 that
    the emus of conducting the investigation into the marine casualty
    lies with the flag State or the coastal State within whose
    territorial sea the casualty has occurred. Para 4 of M.S. Notice
    26 of 2002, however, states that for the purpose of effective
B   casualty investigation, it is imperative that the Maritime
    Administration of the State, whose nationals are involved in the
    marine casualty, by virtue of being ship's crew, is required to
    be invited to take part in the marine casualty investigation, as
    a substantially interested State, by the State conducting the
c   investigation. It is also stated in para 4 of M.S. Notice 26 of
    2002 that our Maritime Administration should be proactively
    involved in the investigation and should take part in it as a
    substantially interested State in order to facilitate effective
    investigation and proper analysis of all marine casualties
    invoiving Indian nationals and for correctly identifying the causes
0
    of said casualties.
       13. In the counter affidavit filed on behalf of respondent nos.
  1, 2 and 3 on 03.01.2008, it is stated that on receipt of the letter
  dated 10.10.2005 from respondent no.4, Surveyor lncharge-
E cum··Deputy Director General of Shipping by letter dated
  19.10.2005 requested Saint Vincent and the Grenadines to
  carry out the investigation into the casualty and submit the
  investigation report along with the findings of the casualty as
  that would alleviate the sufferings of the families of the Indian
F crew members. It is further stated in the aforesaid counter
  affidavit of respondent nos. 1, 2 and 3 that the maritime
  investigation branch, Saint Vincent and the Grenadines sent a
  report of the investigation which was carried out in September
  2005, but in this report it is stated that no definite conclusion
G could be ascertained about the events but there could be
  following possible scenarios:
          "1.    The crew was trying to reconnect the tow again
                 under conditions of significant swell, the tug
                 capsized and sunk.
H
 SABEEHA FAIKAGE & ORS. v. UNION OF INDIA &                        877
           ORS. [A.K. PATNAIK, J.]

             Released EPIRB signal 33 days after m.v.                      A
             "JUPITER 6" disappearance cannot be connected
             with this scenario.
      2.     Piracy/hijacking
             Piracy/hijacking is not common in this area.                  B

             Suspicion of Piracy/hijacking remains valid as there
             was 180 MT of diesel oil on board the tug.

             For the time being our conclusion about the
             Manager's actions regarding this accident are as              c
             follows:
             The disappearance of m.v. "Jupiter 6" along with her
             crew remains an enigma."

Thus, respondent nos. 1, 2 and 3 became aware of the casualty              D
for the first time when they received the communication dated
10.10.2005 about the incident from respondent no.4 and the
Surveyor lncharge-cum-Deputy Director General of Shipping by
letter dated 19.10.2005 requested Saint Vincent and the
Grenadines to carry out the investigation into the casualty as
Indian nationals were part of the crew of Jupiter-6. On these
                                                                           E
facts, it is difficult for us to hold that the Union of India was guilty
of violation of the right to life and was liable for compensation
to the petitioners.
     14. In Municipal Corporation of Delhi v. Association of               F
Victims of Uphaar Tragedy & Ors. (supra) cited by the learned
counsel for the petitioners, the Delhi High Court had held the
theatre owner (licensee), Delhi Vidyut Board (DVB), Municipal
Corporation of Delhi (MCD) and the licensing authority liable
for the fire incident in Uphaar Cinema Hall and severely                   G
compensated the victims of the accident, but this Court held
that the MCD and the licensing authority could not be held liable
for compensation merely because there has been some
inaction in performance of the statutory duties or because the
action taken by them is ultimately found to be without authority           H
of law and they would be liable only if there was some malice
    878       SUPREME COURT REPORTS                [2012] 10 S.C.R.

A or conscious abuse on their part. This Court, however, held in
  the aforesaid case that DVB was liable because direct
  negligence on its part had been established and this
  negligence was a proximate cause for the injuries to and death
  of the victims. Para 32 of the opinion of R.V. Raveendran, J.,
B in the aforesaid case is quoted hereinbelow:
          "It is evident from the decision of this Court as also the
          decisions of the English and Canadian Courts that it is not
          proper to award damages against public authorities merely
          because there has been some inaction in the performance
c         of their statutory duties or because the action taken by them
          is ultimately found to be without authority of law. In regard
          to performance of statutory functions and duties, the courts
          will not award damages unless there is malice or conscious
          abuse. The cases where damages have been awarded for
D         direct negligence on the part of the statutory authority or
          cases involving doctrine of strict liability cannot be relied
          upon in this case to fasten liability against MCD or the
          Licensing Authority. The position of DVB is different, as
          direct negligence on its part was established and it was a
E         proximate cause for the injuries to and death of victims. It
          can be said that insofar as the licensee and DVB are
          concerned, there was contributory negligence. The position
          of licensing authority and MCD is different. They were not
          the owners of the cinema theatre. The cause of the fire was
F         not attributable to them or anything done by them. Their
          actions/omissions were not the proximate cause for the
          deaths and injuries. The Licensing Authority and MCD
          were merely discharging their statutory functions (that is
          granting licence in the case of licensing authority and
G
          submitting an inspection report or issuing a NOC by the
          MCD). In such circumstances, merely on the ground that
          the Licensing Authority and MCD could have performed
          their duties better or more efficiently, they cannot be made
          liable to pay compensation to the victims of the tragedy.
          There is no close or direct proximity to the acts of the
H
          Licensing Authority and MCD on the one hand and the fire
  SABEEHA FAIKAGE & ORS. v. UNION OF INDIA & 879
            ORS. [A.K. PATNAIK, J.]

     accident and the death/injuries of the victims. But there was     A
     close and direct proximity between the acts of the Licensee
     and DVB on the one hand and the fire accident resultant
     deaths/injuries of victims. In view of the well settled
     principles in regard to public law liability, in regard to
     discharge of statutory duties by public authorities, which        B
     do not involve ma/a fides or abuse, the High Court
     committed a serious error in making the licensing authority
     and the MCD liable to pay compensation to the victims
     jointly and severally with the Licensee and DVB."
K.S. Radhakrishnan, J, while fully endorsing the reasoning as          C
well as the conclusions reached by R.V. Raveendran, J, was
also of the view that Constitutional Courts can, in appropriate
cases of serious violation of life and liberty of individuals, award
punitive damages, but the same generally requires the malicious
intent on the side of the wrong doer, i.e., an intentional doing       D
of some wrongful act. In the facts of the present case, as we
have noticed, the Surveyor lncharge-cum-Deputy Director
General of Shipping has requested the flag State to carry out
the investigation into the casualty within nine days of the
information received about the casualty and we are not in a            E
position to hold that there was any inaction with malicious intent
or conscious abuse or intentional doing of some wrongful act
or negligence on the part of respondent nos. 1, 2 and/or 3which
was the proximate cause of the disappearance or death of the
Indian seafarers on board Jupiter-6.                                   F
      15. In Lata Wadhwa & Ors. v. State ofBihar& Ors. (supra)
the petitioners had filed a writ petition under Article 32 of the
Constitution on the ground that right to life under Article 21 of
the Constitution had been violated and had prayed for inter alia
a writ of mandamus or any other writ or direction in prosecution G
of the Tata Iron and Steel Company and their agents and
servants, for the alleged negligence in organizing the function,
held on 03.03.1989 in Jamshedpur in which fire accident took
place and to direct that appropriate compensation be provided
to the victims by the State Government as well as the Company. H
    880      SUPREME COURT REPORTS                [2012] 10 S.C.R.

A When the writ petition came up before this Court, the senior
  counsel appearing for the company stated before the Court that
  notwithstanding several objections, which have been raised in
  the counter affidavit, the company did not wish to treat the
  litigation as an adverse one and left it to the Court for
B determining the monetary compensation to be paid after taking
  into consideration all the benefits and facilities already extended
  to the vic:tims or their family members. On the aforesaid
  submission made by the company, the Court directed the
  Registry of the Court to determine the compensation taking into
c account the enhancement made in the judgment. In the facts of
  the present case, respondent nos. 4 and 5 have deposited in
  this Court the compensation amount made available by the
  insurers of Jupiter-6 and their counsel has not made any
  submission before the Court that they are prepared to pay to
  the petitioners any enhanced compensation as may be fixed
0
  by this Court. As a matter of fact, it appears from the provisions
  of the Shipping Act, 2004 of Saint Vincent and the Grenadines
  and, in particular, Sections 332, 333, 334 and 335 thereof that
  the liability for compensation of any claim in respect of life or
E personal injuries is of the ship owners/salvors or their insurers
  and respondent nos. 4 and 5 are neither the ship owners/salvors
  nor their insurers.
        16. As far as respondent nos. 4 and 5 are concerned, they
  are holdin!l a recruitment and placement service licence issued
F under Rule 4 of the Rules 2005. Rule 3(1 )Q) provides that the
  inspecting authority shall carry out an inspection of recruitment
  and placement service so as to ensure that the seamen's
  employment office concerned and next of kin of the seafarer is
  informed of each death or disability of the seafarer within 48
G hours of such death or disability in Form-V. Rule 6 of the Rules
  2005 further provides that where there is an adverse report of
  the inspecting authority or complaint by a seafarer or otherwise,
  the Director General of Shipping can authorize the Director to
  issue a show cause notice in Form-VII to the recruitment and
  placement service licence provider requiring it to show cause
H within a period of thirty days from the date of issue of such
 . SABEEHA FAIKAGE & ORS. v. UNION OF INDIA & 881
             ORS. [A.K. PATNAIK, J.]
notice as to why the licence shaJI not be suspended or                    A
withdrawn and to suspend or withdraw the licence after
considering the reply. In this case, the licence of respondent
no.4 has already been withdrawn by the speaking order dated
16.06.2008 of the Director General, Seamen's Employment
Office, Department of Shipping, for default in paying                     B
compensation to crew of vessel M.V. RAZZAK. Hence, even if
respondent no.4 has not reported the casualty to the Director
General of Shipping, Mumbai, within a period of 48 hours as
stipulated in the Rules 2005 as alleged by the petitioners in the
writ petition, no further direction can be given by this Court in         c
this case because the licence of respondent no.4 already
stands withdrawn.
     17. On the quantum of compensation, Rule 4(3) of the
Rules 2005, provides that the application for recruitment and
placement service licence shall be accompanied by a                       D
declaration in Form Ill and Form Ill requires the application to
inter alia make the following declaration:
     "(xi) IM/e shall ensure that all ships on which seafarers are
     recruited and placed are covered adequately by the P & I
     Insurance."                                                          E
All that the aforesaid declaration requires is that all ships on
which seafarers are recruited and placed are covered
adequately by the P & I Insurance. In the present case, Jupiter-
6 was a ship bearing the flag of Saint Vincent and the
Grenadines and was also covered by insurance and the insurers             F
have deposited Forty Thousand Dollars (40,000 Dollars) for
each deceased officer seafarer and Twenty Five Thousand
Dollars (25,000 Dollars) for each deceased non-officer
seafarer. 40,000 Dollars is equivalent to Rs.18, 14,800/- and
25,000 Dollars is equivalent to Rs.11,34,250/- as mentioned               G
in the report of Registrar (J). It is difficult for us to hold that the
aforesaid amount of compensation is not adequate in the
absence of sufficient materials produced before us to show the
age, income of the seafarers and all other factors which are
relevant for determination of compensation in the case of death           H
    882      SUPREME COURT REPORTS               [2012] 10 S.C.R.


A of seafarers (officers and non-officers). We cannot also direct
  respondent nos.3 and 4 to pay the compensation as per the
  Collective Bargaining Agreements in the absence of any
  materials placed before the Court to show that the respondent
  nos. 4 and 5 were bound by the Collective Bargaining
B Agreements.
        18. Regarding the submission of the learned counsel for
  the petitioners that this Court should declare law in exercise of
  its powers under Article 142 of the Constitution, we do not think
  that we should venture to do so in this case considering the
C numerous factors which are to be taken into consideration in
  making the law relating to maritime casualty and the
  compensation payable in case of death of Indian seafarers. We
  have, however, taken note of the additional affidavit filed on
  behalf of respondent nos. 1, 2 and 3 on 19.07.2011 in which
D the proposal for setting up an Indian Maritime Casualty
  Investigation Cell and for amending the 2005 Rules have been
  indicated. In our view, it will be enough for us to recommend to
  the respondent no.1 to expedite the proposals which have been
  under consideration of the Government and to take immediate
E steps to amend the Merchant Shipping Act, 1958 and the Rules
  2005 in a manner they deem proper to ensure that the life of
  seafarers employed in different ships in high seas are made
  more secure and safe and in case of loss of life, their kith and
  kin are paid adequate amount of compensation.
F      19. This writ petition is disposed of with the aforesaid
  observations and with a direction to the Registrar (J) to expedite
  the payment of compensation to the legal heirs of the victims
  in accordance with the orders passed in this case as early as
  possible, in any case, within a period of four months from today.
G We make it clear that the compensation received by the legal
  heirs of the Indian seafarers on board Jupiter-6 will be without
  prejudice to their claim for higher compensation in any
  appropriate proceedings.
    K.K.T.                              Writ Petition disposed of.
H