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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Air Traffic Controllers Guild (India) – Petitioner
Versus
Union of India and Others – Respondents
W.P. (C) Nos. 2946 of 2020, 4990, 5122 of 2021, C.M. Appeal Nos. 10239, 10240 of 2020, 15297, 15692 of 2021
Decided On : 11-05-2021
Advocate Appeared:
For the Petitioners: Ms. Khushbhu Sahu, Mr. Piyush Sanghi.
For the Respondents: Ms. Anjana Gosain, Ms. Shalini Nair, Mr. Anand Pandey, Mr. Manish Kumar, Mr. Sonal Kumar Singh, Mr. Rajat Dasgupta.
Point of Law: Airlines - COVID pandemic situation - Breath Analyzer Test - Staff of airlines, including ATCs, pilots and cabin crew, would be bound to give undertakings and declarations. in respect of not having consumed alcohol, in terms of the applicable regulations, failing which strict action would be taken including off- rostering and suspension, in accordance with the applicable rules.
Headnote:
Air Traffic Controllers - Breath Analyser test ought to be conducted in an open area so that safety of ATCOs is taken care of - Use of current equipment for conducting BAT is prejudicial to interests of ATCs, especially during the COVID-19 outbreak - Indian Commercial Pilots Association owing to recent spurt of Covid-19 infections that have been witnessed in India - Petitioner sought exemption for commercial pilots, from undergoing BATs as mandated under Section 5 - Air Safety - Third petition filed by Air Traffic Controllers guild, seeking immediate halt on administration of BAT, which could increase their chance of contracting COVID-19 - When this matter was listed for first time, the court reiterated its interim order in which directions were given when pandemic had broken out in 2020, and DGMS(Air) was asked to explore alternatives to BAT.
Finding of the Court:
It is clear that two reports of DGMS (Air) also do not recommend heavy testing through Breath Analyser method, owing to the prevalent circumstances. The blood alcohol test has been rejected by the Committee and this court would not like to substitute its judgment over the same. There is however no doubt that testing for alcohol cannot be completely exempted in as much as the same could be detrimental to passenger safety. While maintaining a balance between the interest of personnel as also passengers, directions would have to be issued - DGCA shall issue a comprehensive guideline/order urgently, which contains all requirements and the protocols to be followed for administration of Breath Analyser Test, in one document. The said order shall be communicated to all the airports and the airlines, across the country to be adhered to uniformly.
Result: Petitions disposed of.
JUDGMENT :
PRATHIBA M. SINGH, J.
1. This hearing has been done through video conferencing.
2. All these three petitions relate to the Breath Analyzer Test (hereinafter “BAT”) which Air Traffic Controllers (hereinafter “ATCs”) and commercial pilots have to undergo prior to joining duty at the airports.
3. In WP (C) 2946/2020 the case of the Petitioner, which is the representative association of the ATCs working under the Airport Authority of India (hereinafter, “AAI”), is that on a random basis 10% of the ATCs are subjected to the BAT which uses equipment that could result in the spread of the COVID-19 virus. It was thus submitted that the use of the current equipment for conducting the BAT is prejudicial to the interests of the ATCs, especially during the COVID-19 outbreak. In the said petition, vide order dated 23rd March 2020, this court had, as an interim measure, suspended the use of BATs until further orders, and had also tendered an assurance from all ATCs that they would provide a self-declaration that they would not report to duty under the influence of alcohol, as per the prevalent regulations. The court had also directed the constitution of a technical committee under the DGMS (Air) and had sought a report. The interim order was thereafter modified vide order dated 3rd September 2020, after considering the report of the Committee. The writ petition was however pending.
4. WP (C) 4990/2021 was recently filed by the Indian Commercial Pilots Association owing to the recent spurt of Covid-19 infections that have been witnessed in India. The Petitioner sought exemption for commercial pilots, from undergoing the BATs 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 1501I/2I/2010-AS, issued by the Director General of Civil Aviation (hereinafter “DGCA”). The petition also prayed for reinstatement of the interim order dated 23rd March 2020 in WP (C) 2946/2020.
5. WP (C) 5122/2021 is the third petition filed by Air Traffic Controllers guild, seeking immediate halt on the administration of the BAT, which could increase their chance of contracting COVID-19. On 3rd May, 2021, when this matter was listed for the first time, the court reiterated its interim order dated 23rd March 2020 in WP (C) 2946/2020 in which directions were given when the pandemic had broken out in 2020 and DGMS(Air) was asked to explore alternatives to BAT. Since then, all three petitions are being taken up together.
6. In W.P. (C) 4990/2021, vide order dated 27th April, 2021, this Court had sought a report from the Medical Committee formed by the DGMS (Air) on the issues which were raised in the petition. Further to the said order, the report from the DGMS (Air), was received, wherein the Committee has commented as under:
“2. The following points were drawn at the meeting held at O/o DGMS (Air) and after examination the comments are as under:
(a) Related to continuation of Breath Analyser Test (BA Test) - Keeping in mind the safety of passengers as also the safety of the personnel including the pilots, cabin crew, air traffic controllers etc, complete suspension of BA Test may prove counterproductive and hence not advisable. As a deterrent measure, random test in a day may be conducted by the organisation concerned in alignment with international regulations. It is proposed that random testing may be conducted and the number of tests per day may be decided by DGCA depending on operational requirements both domestic as well as international, and considering the best international practices followed worldwide. The precautions/safe guards while conducting the BA Test proposed in the DGCA Order No. DGCA-15031/4/ 2020-DAS dated 27th April 2021 are appropriate and adequate.
(b) Related to Blood Alcohol Test - Conduct of Blood Alcohol Test is invasive and non-practical in view of the specific
