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2017 Supreme(Del) 2884
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJEEV SACHDEVA, J.
Indian Commercial Pilots Association - Petitioner
Versus
Director General of Civil Aviation & Ors. - Respondents
W.P.(C) 3231 of 2017
Decided On : 17-08-2017
Advocate Appeared:
For the Petitioner: Dr. Abhishek Manu Singhvi, Mr. Sandeep Sethi, Mr. Gopal Sankar, Mr. Narayanan, Mr. Sulabh Rewari, Mr. Shujoy Mazumdar
For the Respondents: Ms Anjana Gosain, Mr. Joseph, Mr. Parag Tripathi, Ms. Bhavana Duhoon, Mr. Mukesh Kumar, Ms Gunjan Sinha Jain, Mr. Rishabh Kapur, Mr. Sudhir Nandrajog, Mr. Ankur Chibber, Mr. Aditya Chibber
The interpretation of CAR by DGCA that a pre-flight breath-analyzer examination is required only once prior to the commencement of the flight duty cycle is not plausible in cases where the pilot misses or skips the initial test.
Headnote:
CIVIL AVIATION - Pre-flight breath analyzer examination - Violation - Action against pilot - Interpretation of CAR - Maintainability of petition - Public interest litigation - Service matter - Quo warranto - Disciplinary action - Inquiry - False entry in register - Flight safety.
Fact of the Case:
Petitioner, Indian Commercial Pilots Association, sought a mandamus directing DGCA to initiate an inquiry and take action against Respondent No. 2 (Captain Kathpalia) for alleged offenses under CAR. Further mandamus was sought to suspend Captain Kathpalia and cancel his Airline Transport Pilot Licence (ATPL). DGCA defended the action taken for suspending Captain Kathpalia for a period of three months. It contended that CAR is fully compliant with the conditions set out with International Civil Aviation Organization. Captain Kathpalia contended that he missed the Pre-Flight Medical Examination due to unforeseen circumstances and oversight. Air India objected to the locus standi of the Petitioner to question the action taken by Air India against Captain Kathpalia for missing the Pre-Flight Medical Examination.
Finding of the Court:
The court held that the petition is not maintainable as a public interest litigation as it is a service matter. The court also held that the petition cannot be entertained as a writ of quo warranto as the petitioner is not a person eligible to be appointed to the Board of Air India. However, the court examined the conduct of Captain Kathpalia, the interpretation and application of CAR, and the action taken by DGCA and Air India in view of the lapses that have come to light. The court held that the interpretation of CAR by DGCA that a pre-flight breath-analyzer examination is required only once prior to the commencement of the flight duty cycle is not plausible in cases where the pilot misses or skips the initial test. The court also held that the action of Captain Kathpalia in making an entry in the Pre-Flight Breath Analyzer Examination register after returning from Bengaluru and ante dating the same is a serious infraction that requires disciplinary action. The court directed the Disciplinary Authority to conduct a disciplinary enquiry in the conduct of Captain Kathpalia and to take appropriate action in accordance with law.
Issues: 1. Whether the petition is maintainable as a public interest litigation? 2. Whether the petition can be entertained as a writ of quo warranto? 3. Whether the interpretation of CAR by DGCA that a pre-flight breath-analyzer examination is required only once prior to the commencement of the flight duty cycle is correct? 4. Whether the action of Captain Kathpalia in making an entry in the Pre-Flight Breath Analyzer Examination register after returning from Bengaluru and ante dating the same is a serious infraction that requires disciplinary action?
Ratio Decidendi: 1. A public interest litigation is not maintainable in a service matter. 2. A writ of quo warranto cannot be entertained if the petitioner is not a person eligible to be appointed to the post in question. 3. The interpretation of CAR by DGCA that a pre-flight breath-analyzer examination is required only once prior to the commencement of the flight duty cycle is not plausible in cases where the pilot misses or skips the initial test. 4. The action of Captain Kathpalia in making an entry in the Pre-Flight Breath Analyzer Examination register after returning from Bengaluru and ante dating the same is a serious infraction that requires disciplinary action.
Final Decision: The court disposed of the petition by directing the Disciplinary Authority to conduct a disciplinary enquiry in the conduct of Captain Kathpalia and to take appropriate action in accordance with law. The court also directed Air India to identify and fix responsibility on the officers who were responsible for failing to immediately bring the infraction on the part of Captain Kathpalia to the notice of the DGCA, and thereafter to take appropriate action in accordance with law. The court further directed both DGCA and Air India to examine the interpretation and functioning of CAR to ensure that there is no possibility, in the future, of anyone circumventing the mandatory requirement of the Pre-Flight Breath Analyzer Examination, with impunity.
Sanjeev Sachdeva, J.
1. The Petitioner by the present petition inter alia seeks a Mandamus thereby directing Respondent No. 1 (Director General Civil Aviation, hereinafter referred to as DGCA) to initiate an enquiry and take action against Respondent No. 2 (Captain Arvind Kathpalia, hereinafter referred to as Captain Kathpalia) with respect to the allegations of offences under Paragraph 8.1 and 8.2 of the Section 5, Series F, Part 111, Issues III of the Civil Aviation Requirements dated 04.08.2015 (hereinafter referred to as CAR). Further mandamus is sought to suspend Captain Kathpalia until a Final Enquiry report is published relating to his alleged offences on 19.01.2017 and to cancel his Airline Transport Pilot Licence (ATPL for short) and further to restrain the respondents from appointing Captain Kathpalia to any post until the Final Enquiry report.
2. The Petitioner (Indian Commercial Pilots Association) claims to be the oldest recognized pilots union in the country and is recognized by Respondent No. 4 Air India (hereinafter referred to as Air India).
PETITIONER’S CASE
3. The case of the petitioner is that on 14.10.2013, the then Executive Director (Personnel) of the Air India issued a circular stating that any pilot not complying with the procedure ‘for medical examination of aircraft personnel for alcohol consumption’ shall be promptly charge-sheeted and a departmental enquiry will be instituted against them apart from being immediately de-rostered.
4. DGCA issued the subject CAR on 04th August, 2015 laying down the procedure for medical examination of aircraft personnel for alcohol consumption. The CAR made effective forthwith, mandates taking of a medical examination by all flight personnel including pilots for alcohol consumption and inter alia lays down the procedure for the conduct of breath analysis examination, the time when the examination is to be taken and the procedure to be followed by the flight personnel, medical doctors etc. It also stipulates the punishment for any infraction.
5. Captain Kathpalia on 22.08.2016, as the then Executive Director (Flight Operations) also issued a circular reiterating the afore-mentioned CAR.
6. The CAR mandates that for all scheduled flights originating from India, each flight crew and cabin crew shall be subjected to pre-flight breath-analyzer examination and for all Scheduled flights originating from destinations outside India, post-flight breath-analyzer examination of each flight crew and cabin crew shall be carried out on reaching in India. (emphasis supplied).
7. It is contended that on 19.01.2017, Captain Kathpalia, then still the Executive Director (Flight Operations) of Air India, was scheduled to fly flight AI-174 from Delhi to Bengaluru.
8. Disregarding the rules, Captain Kathpalia proceeded to fly the aircraft and attend to his flying duties without undergoing the mandatory Pre-Flight Breath Analyzer examination.
9. It is contended that not only did Captain Kathpalia miss the Pre-Flight Breath Analyzer Examination, he, despite being informed by the Flight Dispatcher on landing in Bengaluru about having missed the test, failed to take the Post-Flight Breath Analyzer examination. He thereafter flew flight AI-173 back from Bangaluru to Delhi.
10. After landing in Delhi Captain Kathpalia did not take the Post-Flight Breath Analyzer Examination but went into the Pre-Flight medical examination room and made an entry in the Pre-Flight Breath Analyzer Examination Register. The entry was made at a position in the Register so as to show that a Pre-Flight Breath Analyzer Examination had been taken by Captain Kathpalia prior to operating the Delhi – Bengaluru flight AI-174.
11. It is contended that Captain Kathpalia committed five offences i.e.
Firstly, he evaded the Pre-Flight Breath Analyzer examination at New Delhi on flight AI-174.
Secondly, he voluntarily refused to take the Post Flight Breath Analyzer examination at Bengaluru, in spite of being informed by flight dispatc
