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2021 Supreme(Del) 151
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Indian Commercial Pilots Association – Petitioner
Versus
Directorate General of Civil Aviation – Respondent
W.P. (C) No. 4990 of 2021, C.M. APPL. No. 15297 of 2021
Decided On : 27-04-2021
Advocate Appeared:
For the Petitioners: Mr. Adit S. Pujari, Ms. Tusharika Matto.
For the Respondents: Ms. Anjana Gosain, Ms. Shalinin Nair, Mr. Anand Pandey.
Point of Law: Pandemic COVID-19 - Breath-analyzer tests - Commercial pilots - Court has no doubt that undertakings which have to be given by personnel, to ensure that they do not consume any alcohol 12 hours prior to reporting on duty, would have to be duly adhered to, by personnel, including Air Traffic Controllers and Cabin Crew.
Headnote:
Section 5 - Air Safety, Series F Part III Issue III - 4th August 2015 - Organization of commercial pilots, working with Air India - Civil Aviation Requirements Regulation - Whether blood tests should be conducted and whether sanitization of the equipment with UV sterilizers would be sufficient to maintain safety of personnel or not would have to be considered by a Medical Committee which would be constituted by DGMS (Air) - Respondent be directed to reinstate earlier order, which was temporarily in operation, and had suspended conduct of breath-analyzer tests subject to the undertakings being provided to the DGCA.
Finding of the Court:
Obviously safety of both sides i.e. passengers as well as flying crew/personnel, has to be ensured by authorities and neither of their interests can be compromised. DGCA would immediately bring into operation, Draft Order placed before the Court today and extracted above, so that same can be implemented with effect from tomorrow i.e. 28th April, 2021 itself. DGMS (Air) shall constitute a Medical Committee of duly qualified people, who shall submit a report on all of issues discussed above, as also the issues raised in writ petition.
Result: Order accordingly.
JUDGMENT :
PRATHIBA M. SINGH, J.
1. This hearing has been done through video conferencing.
2. The present petition has been filed by the Indian Commercial Pilots Association, which is an organization of commercial pilots, working with Air India.
3. The case of the Petitioner-Association, is that owing to the recent spurt of Covid-19 infections that have been witnessed in India, exemption ought to be given to commercial pilots, from undergoing the breath-analyzer tests as mandated under Section 5-Air Safety, Series F Part III Issue III - 4th August 2015 (as modified vide Order bearing No. DGCA 15031/4/2020-DAS dated 04.09.2020) of the Civil Aviation Requirements Regulation identified as F. No. AV-15011/21/2010-AS, issued by the Director General of Civil Aviation (hereinafter “DGCA”).
4. It is further prayed that the Respondent be directed to reinstate the earlier order, dated 29th March 2020, which was temporarily in operation, and had suspended the conduct of breath-analyzer tests subject to the undertakings being provided to the DGCA.
5. Mr. Adit S. Pujari, ld. Counsel appearing for the Petitioner submits that the conduct of breath-analyzer tests would expose a large number of pilots to grave danger, in view of the fact that the manner in which breath-analyzer tests are conducted would require that the same breath-analyzer equipment is used for all the pilots and other personnel who would be undergoing the said test. He submits that since breath-analysis involves the use of an equipment which would be connected to the nose and mouth of the person who takes the same, there is a severe chance of an infection being transferred from one person, who has been previously tested is positive for COVID-19. This is due to the communicable nature of the disease. He further submits that during the period when breath-analyzers were suspended from being administered last year, only random testing was being conducted and, in any event, considering this recent spike in COVID-19 infections, he submits that the authorities ought to consider conducting blood-alcohol tests instead of breath-analyzer tests.
6. Notice was issued in this writ petition on yesterday i.e. on 26th April 2021. Ms. Anjana Gosain, ld. Counsel had appeared in the matter and was asked to seek instructions. Ms. Gosain submits that considering the rate of spread of COVID-19 infections, the DGCA, on its own, has decided to modify the protocol for conduct of breath-analyzer tests. She submits that under the existing arrangement, insofar as the domestic personnel are concerned, 25% of them were being tested in a random manner and insofar as the international personnel/pilots are concerned, all 100% of them were being tested. Insofar as the cabin crew is concerned, the testing was random. However, due to the recent developments in respect of the spread of the pandemic, on a review conducted by the DGCA, it has been decided as under:
“In view of rising number of COVID-19 cases, the DGCA has reviewed the conduct of B.A. Test of all Aviation personnel and after the approval of competent authority the DGCA order of even number dated 04.09.2020 and 07.09.2020, have been suitably modified and henceforth the employer/organization shall ensure that:
(i) 10% of flight crew member and the cabin crew member shall be subjected to random preflight Breath-Analyzer test for entire operation of an Organization in India.
(ii) ATCO shall be subjected to random Breath-Analyzer test before commencement of duty at each station on daily basis.
(iii) For operation of aircraft registered in private category the Pre-flight Medical requirements shall continue as per DGCA-15011 (01)/18/2020-DAS dated 03.12.2020.
The above direction/arrangement is purely a temporary measure in view of COVID-19 and shall be valid up to 17.05.2021 and till then the relevant provisions of the CAR shall remain suspended. The restoration of provisions of respective Civil Aviation Requirements on the subject will be reviewed from time to time
