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IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
Indian Commercial Pilots Association - Appellant
Versus
Directorate General of Civil Aviation - Respondent
W.P.(C) 4990 of 2021 & CM Appl. 15297 of 2021
Decided On : 27-04-2021
Court emphasized the need for expert medical evaluation of safety protocols concerning breath-analyzer tests during the COVID-19 pandemic, balancing health risks with aviation safety.
Headnote:(A) Civil Aviation Requirements Regulation - Section 5 - Breath-analyzer tests for aviation personnel - Petition filed for exemption from tests due to COVID-19 pandemic - DGCA re-evaluated testing protocols, reducing frequency and implementing safety measures for test administration - Safety of personnel and passengers must be balanced against operational requirements. (Paras 3, 4, 10, 11, 12, 16)
(B) Expert Opinion - The court emphasized that expert medical advice is essential for assessing risks associated with breath-analyzer tests and potential alternatives such as blood tests. (Paras 11, 15)
Facts of the case:
The petitioner, an association of commercial pilots, sought exemption from mandatory breath-analyzer tests citing the risks posed by COVID-19 due to shared equipment. The DGCA modified testing protocols to address health concerns while maintaining oversight of aviation safety.
Findings of Court:
The court directed the DGCA to implement the modified testing regimen and establish a Medical Committee to evaluate ongoing concerns related to testing protocols.
Issues: The primary issues included whether breath-analyzer tests present a health risk during the pandemic, and the adequacy of proposed safety measures.
Ratio Decidendi: The court noted that ensuring safety for both personnel and passengers is crucial, and recommended involving a medical committee for further evaluation of testing methods.
Result: The petition was resolved with directions for implementation of modified protocols and establishment of a medical review committee.
| Table of Content |
|---|
| 1. petition filed for exemption from breath-analyzer tests. (Para 2 , 3 , 4) |
| 2. risks of covid-19 with breath-analyzer tests. (Para 5) |
| 3. dgca's modified testing protocols during covid-19. (Para 6 , 11) |
| 4. consideration of blood tests for pilots and safety measures. (Para 7 , 10 , 14) |
| 5. importance of medical expert evaluation on testing protocols. (Para 8 , 9 , 13) |
| 6. commitment to undertakings on alcohol consumption. (Para 12 , 15) |
| 7. court's directive for immediate compliance with modified orders. (Para 16) |
| 8. report submission deadlines and listing. (Para 17 , 18) |
JUDGMENT
Prathiba M. Singh, J. (Oral)--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 & 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
