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Judgment
Subrata Talukdar, J
Under challenge in this writ petition is the order dated 1st of May, 2018 being Order No. 518 of the Director (Tourism) (hereinafter referred to only as the Director). By the said impugned order the licence of the petitioner Company (for short the Company) to carry out water sports activities throughout the Andaman & Nicobar Islands (for short the Islands) was terminated. The Company was blacklisted from participating in any offers/tenders floated by the respondents/the Administration to hold water sports activities anywhere in the Islands.
The genesis of the said impugned order is the unfortunate death of a tourist at a beach in North Bay while scuba diving under the guidance of the Company acting through its diving instructors and dive masters.
The death occurred in the evening of the 13th of February, 2017. After the death, the sister of the unfortunate tourist, lodged a First Information Report with the local Police Station alleging negligence on the part of the staff of the Company.
The Post Mortem report revealed the cause of death as asphyxia consequent to drowning.
The respondents initially suspended the licence of the Company and then cancelled the licence. Since the cancellation was without a notice of hearing, by order dated 7th of February, 2018 in WP No. 187 of 2017, the Hon'ble Single Bench was pleased to remand the matter to the Director for a fresh hearing upon compliance with the principles of natural justice.
Pursuant to the order dated 7th of February, 2018, the respondents issued a fresh Show Cause Notice (SCN) dated the 16th of March, 2018. In the new SCN the respondents included violation of clauses 3.5 (iv) and 3.5 (v) of the 2014 Guidelines mandating the requirements to be followed by all dive centres licensed to the respondents.
3.5 is a sub-clause within the 2014 Guidelines captioned as Supervision of Diving Activities. 3.5 (iv) requires all diving centres to maintain a dive roster. The roster is required to record the following in respect of each diver/tourist namely, dive time, maximum depth and remaining tank pressure after the dive.
3.5 (v) mandates the presence of a dive centre staff member to monitor the time the divers enter and exit the water.
It must be recalled that the earlier cancellation of the licence which was set aside by the order of the Hon'ble Single Bench dated 7th of February, 2018 had only referred to 3.5 (i) and 3.5 (ii) of the 2014 Guidelines.
The Company, appearing through Ms. Nag, learned counsel, has explained its defence before the Director as follows. That the tourists had been given diving instructions prior to commencement of the dive. The tourists, as per the prevailing practice, have to replace their normal clothes with a diving suit in the changing room before arriving for the dive.
The diving gear includes a jacket and a belt to strap the equipment along with the jacket. The jacket is worn along with the diving equipment over the diving suit.
The Company submits that roster for the day recorded all the details connected to the dive of the unfortunate tourist. The Company further submits that the said tourist arrived at the water where he was given a drill by a trained diving instructor, one Gyaneshwar Rao, attached to the Company. Thereafter, the said tourist completed the dive satisfactorily. The dive roster produced before this Court are annexed at page 225 of the writ petition. The dive details of the said tourist are as follows:-
Name
Entry Time
Dive Start Time
Exit Time
Dive Time
Max Depth
Start Pressure
End Pressure
Vineeth Sonapipre
2:30
2:50
3:15
25 min
6
180
80
The Company submits that the dive roster was never examined either at the level of the Director or, seized during the police investigation. It is submitted that the evidence in the Inquiry conducted by the respondents would show that the said tourist was completed the dive and brought near the shore by the diving instructor. Evidence would also show that the said tourist was seen by the witnesses on the spot to be wearing only his black diving suit. The Company is firm in its stand that the jacket and the scuba strap belt were removed by the diving instructor and the said tourist expressly told to walk to the shore at a water level which could not have drowned him being around his waist level.
Evidence also shows that the said tourist was last seen by witnesses to be standing on the shore. According to the Company, the diving instructor, Rao, had to attend to other scuba divers who were diving along with the said tourist at the relevant point of time. Evidence does not show that any of the Tourist Safety Emergency Team (TSET) members were present at the shore to monitor the activities of the said tourist after the dive. The Company points out that no incident of drowning had resulted and nothing appears from the record to show that the death occurred during the scuba dive.
The Director took the report of one of the TSET members to be the gospel truth. Avoiding the complication which the Inquiry would have produced connected to the factual scenario relating to the time when the said tourist was led out of the water after the dive and the time when the mother of the said tourist shouted for help to locate her missing son, several facts connected to the presence and role of the TSET would have to be thoroughly examined. After the dive the safety of the diver on shore is the responsibility of the TSET. It is expected that the TSET would be vigilant at the shore when a dive is taking place.
However, all the above aspects were ignored by the Director and the Company held responsible for the unfortunate incident.
Mr. Mandal, learned Senior counsel, appearing for the respondents submits that it was the duty of the Company to ensure the safety of the divers during and after the dive. Referring to the report of one Dharmaraj, member of the TSET team, it is submitted that a search was launched after it was discovered that the said tourist was missing. The body of the said tourist was then recovered from the sea. Culpability therefore, connected to the unfortunate incident lies solely with the Company.
Having heard the parties and considering the materials placed, this Court comes to the following findings:-
A) That the reasons for cancellation of the licence by the respondents can be gathered from the following pleadings in the affidavit in opposition:-
"It is submitted that a representation dated 19/04/2016 was submitted by Shri Ranju R, Director, M/s Dive Mantra to the Chief Secretary, A&N Admn. The request made by M/s Dive Mantra therein was considered and rejected by the Chief Secretary, A&N Admn., in view that this incident will spread wrong message among the general public as well as tourists regarding their safety and will also adversely affect the promotion of tourism in the Andaman & Nicobar Islands. The said decision of the Chief Secretary, A&N Administration was Communicated to M/s Dive Mantra vide letter dated 20/06/2017.
It is submitted that the license for conducting SCUBA diving of the petitioner was cancelled by the Director of Tourism, Andaman & Nicobar Administration taking into consideration the FIR lodged against M/s Dive Mantra, the post mortem report of the Late Shri Vineet Ashok Sonpipare and the report of incident by invoking clause 3.5 (i) and clause 3.15 (ii) of the Guidelines of SCUBA."
B) Therefore, the reasons for the cancellation appears to be an effort to save the reputation of the Islands as a destination for divers with the facts connected to the unfortunate incident playing a second fiddle. While being in a position to appreciate the angst reverberating through the said impugned order of the Director that justice for the dead must be done by the living (to quote), anxiety to reach a conclusion based on such angst cannot dispense with the requirement of a hard forensic examination of the facts on the ground.
C) This Court therefore now turns to the relevant extracts of the evidence as recorded in the impugned order itself:-
"Statement of Shri Mritunjai Sisaudia, Managing Director, Dive Mantras Pvt. Ltd.
Q.1 when was the company M/s Dive Mantra came into existence?
Ans. May, 2013.
Q.2 How many Scuba Diving you might have conducted since then?
Ans. About 15000-16000 at North Bay.
Q.3 Hence there any injury or casualty earlier also?
Ans. No
Q.4 Whether you follow any standard Operating prescribed by any National/ International during the conduct of Scuba Diving?
Ans. We follow the guidelines issued by Tourism Department.
Statement of Sh. Dinesh Biswas, Director, Dive Mantra Pvt. Ltd.
Q.3 Was he completely brought out of the shore?
Ans. He was brought to the shore.
Q.4 whether the weight belt tired at the start of Scuba Diving where removed at the conclusion of Diving?
Ans. Yes the weight belt was removed at the conclusion of the Diving.
Q.5 can you tell why did deceased Shri Vineet Ashok Sonapipre venture into Sea water again for swimming?
Ans. No, since we do not track guests after the Scuba Diving as we have other tourist to attend who are waiting for Scuba.
Statement of Shri Joybrotha Mondal S/o Shri Suresh Mondal, R/o Garacharma
Q.4 When you saw the person whose death body was brought i.e., Mr Vineet Ashok Sonapipre, was he standing in water?
Ans. He had completely come out of water and standing near the railing.
Statement of Shri Abdul Ramzan, S/o Shri Abdul Muthalif, R/o Phoenix Bay
Q.4 when you saw the person whose death body was brought i.e., Mr. Vineet Ashok Sonpipre wa is standing in water?
Ans. He has completely come out of water and standing near the railing.
Q.5 was he wearing diving gear and weight belt? Ans. He was only wearing diving suit of black colour.
Statement of Shri Mohammed hussain, S/o Ahemad Hussain, R/o Aberdeen Bazar
Q.5 when you saw the person whose death body was brought i.e., Mr. Vineet Ashok Sonpipre was is standing in water?
Ans. I saw him in the water around or below the waist.
Q.6 was he wearing diving gear and weight belt? Ans. He was only wearing wet diving suit of black colour."
D) To the mind of this Court from the evidence of witnesses on the spot it can be gathered that the dive was complete. This Court finds an unexplained activity resulting in the death of the said tourist between the period his diving gear was removed by Rao and he was last seen standing on the shore in only his diving suit and the point of time when the dead body of the said tourist was found.
With the removal of the diving gear the diving activity can be said to have ended. Although in the said impugned order it is mentioned that the roster was not produced, from the copies referred to as roster annexed to the writ petition and extracted above, this Court also finds a recording of the commencement and completion of the diving activity. Asphyxia consequent to drowning did not occur during the dive, since admittedly the said tourist was brought near the shore by Rao and the diving gear dismantled from his body.
E) This Court must also find that after being brought near the shore there is substance in the stand taken by the Company that the said tourist was required to proceed to the changing room to change out of his diving suit and into his normal clothes. In the said impugned order it is admitted that the roster is a crucial piece of evidence. Grains of sand and the diving suit found on the dead body do not conclusively prove that the said unfortunate incident occurred during the dive itself.
F) This Court must further notice that during a diving activity it was incumbent upon the TSET members to be vigilant at the area or areas of the beach which are the start and end points of the dive. It is no doubt a matter of inquiry that although several witnesses (as quoted above) were found to have seen the said tourist standing near the shore in some water which was not enough to cause drowning, there is no such evidence from any TSET member. The evidence of Dharmaraj (supra), a TSET member, begins only after the search is activated for the missing tourist upon his mother shouting for help. It is from this point that the TSET members become involved in the incident and remain till the dead body is retrieved from the sea.
Therefore the position is far from satisfactory that the TSET was closely vigilant to monitor the emergence of divers after the dive and to ensure that after completion of the dive each of the divers retire to their respective changing rooms. The fact of the said tourist being left alone at a point of time after the dive is complete and without being supervised by any expert from any side cannot be simply placed on the shoulders of the Company.
G) Therefore, with the roster before this Court stating all details connected to the dive time, maximum depth and the remaining tank pressure after the dive to the mind of this Court 3.5 (iv) and 3.5 (v) of the 2014 Guidelines stand answered since the said tourist was monitored from the time entered and exited the water (emphasis supplied).
However, since the roster was not produced before the Director as stated in the said impugned order, it would be open to the Director to examine the veracity of the Roster and also crucial pieces of facts connected to the said tourist exiting the water on the date of the unfortunate incident as well as the respective roles of each of the parties involved in the light of the observations as made above and in accordance with law.
The matter stands accordingly remanded to the Director for a fresh consideration.
It is expected that the Director shall complete his exercise within a period of four weeks from the date of communication of this order, if necessary, by even taking further documentary and other evidence. It is, however, made clear that the Company shall not conduct any Scuba Diving activity till the order is communicated, as also directed by the earlier solemn order dated 7th of February, 2018 of the Hon'ble Single Bench.
Order No. 518 dated 1st of May, 2018 stands accordingly set aside.
Accordingly, apropo the facts of the present case, WP No. 302 of 2018 stands disposed of.