Suresh Kumar vs Union Of India & Ors.
2011 Latest Caselaw 5566 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 770/2000
%                                                    18th November, 2013

SURESH KUMAR                                              .....Petitioner
                           Through:      Mr. Sanjay Ghose,Advocate.


                           VERSUS

UNION OF INDIA & ORS.                                ...... Respondents

                   Through:              Ms. Ratna D.Dhingra and Ms. Bhavna
                                         Dhami, Advocates for R-2 and 3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner challenges the action of his

employer/respondent no.2/Indian Airlines Ltd.(Now Air India Ltd.) of

suspending him during the pendency of the enquiry, from flying duties i.e

off-rostering the petitioner. The impugned suspension is dated 12.1.1999.

2. On behalf of the petitioner, reliance is placed upon Rule 19(3)

of the Aircraft Rules, 1937 to argue that principles of natural justice have to

be followed before ordering suspension and a speaking order, which must be

communicated to the petitioner, must be passed even for interim suspension

during investigation. It is argued that since the said procedure was not

followed, the suspension of the petitioner during the enquiry is bad. To

buttress his argument of requiring the communication of the order of

suspension to him, petitioner relies upon the order dated 24.6.1999

communicated to Capt. Shyam Kalra and Capt. GPS Grewal, who were

involved in an incident on 18.6.1999 of gazing of the wing tips of two

aircrafts.

3. In order to appreciate the argument urged on behalf of the

petitioner Rule 19 of the Aircraft Rules, 1937 in its entirety is reproduced

below:-

"19. Cancellation, suspension or endorsement of licences, certificates, authorisation and approval - (1) Where any person is convicted of a contravention of, or failure to comply with, these rules or any direction issued under rule 133A in respect of any aircraft, the Central Government may cancel or suspend any certificate of registration granted under these rules relating to that aircraft.

(2) The Central Government may cancel or suspend any certificate granted under these rules relating to airworthiness of an aircraft or a Type Certificate of an aircraft component, or item of equipment, if the Central Government is satisfied that a reasonable doubt exists as to the -

(a) safety of the aircraft or the type of aircraft; or

(b) the airworthiness of the aircraft component or item of equipment in respect of which a Type Certificate exists, and may vary any condition attached to any such certificate if the Central Government is satisfied that reasonable doubt exists as to whether such conditions afford a sufficient margin of safety.

(2A) Where the licensing authority is satisfied, after giving him an opportunity of being heard, that any person has contravened or failed to comply with these rules or any direction issued under rule 133A, it may, for reasons to be recorded in writing, suspend or cancel or vary any particulars entered in any licence, certificate, authorization or approval granted by it, and may require the holder of the licence, certificate, authorization or approval to surrender the same for cancellation, suspension, endorsement or variation.

(3) If the Central Government is satisfied that there is sufficient ground for doing so or, in the case of suspension during investigation that suspension is necessary in the public interest, it may, for reasons to be recorded in writing-

(a) suspend any certificate, rating or licence, authorisation and approval or any or all of the privileges of any certificate, rating or licence, authorisation and approval, for any specified period;

(b) suspend any certificate, rating or licence, authorisation and approval during the investigation of any matter;

(c) cancel any certificate, rating or licence, authorisation and approval; or

(d) endorse any adverse remarks on any certificate, rating or licence, authorisation and approval,

(3A) Where any person contravenes or fails to comply with these rules or any direction issued under rule 133A relating to the operation of Microlight aircraft, the Central Government may cancel the certificate, rating or licence, authorisation and approval granted, issued, authorised or approved, as the case may be, under these rules.

(4) The Central Government may cancel or vary any particulars entered by it or under its authority in any licence or certificate, authorisation and approval granted or in any journey log book issued under these rules.

(5) The Central Government may require the holder of any licence, certificate, authorisation and approval or other document granted or issued under these rules, or any person having possession or custody of such licence, certificate, authorisation and approval or document, to surrender the same to it for cancellation, suspension, endorsement or variation and any person failing to comply with any such requirement within a reasonable time shall be deemed to have acted in contravention of these rules.

NOTE- The decision of the Central Government as to whether any ground constitutes sufficient ground for suspension of any certificate, rating, licence, authorisation or approval in the public interest under the foregoing sub-rule shall be final and binding.

[Amended by- (i) GSR No. 1238 dated 8-9-1962,

(ii) GSR No. 1202 dated 23-7-1976,

(iii) GSR No. 218 dated 13-3-1991, and

(iv) GSR No. 167(E) dated 13-03-2009.]"

4. I do not find anything in the provision of Rule 19 that even

before an interim suspension is ordered for de-rostering of a pilot from

flying duties, he should be heard. All that is required by the Rule 19(3) is

recording of reasons. In the present case, there were serious allegations of a

near miss in the air of an aircraft which the petitioner was flying, with

another aircraft, with the further grave charge that the relevant conversation

of the cockpit was got erased deliberately by superseding the same with

conversation of the return flight. The relevant allegations made against the

petitioner are stated both in the counter-affidavit of the respondent no.1 as

also the respondent no.2. The relevant portions of the counter-affidavit of

the respondent no.1 read as under:-

1. That on 20.11.1998 Capt. Suresh Kumar was operating Indian Airlines flight IAC 485 Airbus A-320 from Delhi to Chandigarh and Haryana Govt. King Air Aircraft VT-HYA was operating from Chandigarh to Delhi. In Chandigarh Airspace he came dangerously close to another aircraft in the air which belongs to Haryana Government. The separation was less than 0.1 NM. The distance between the two aircraft, was so less that within fraction of seconds there would have been a midair collision, similar to the one seen near Delhi November, 1997 between Saudia Airlines & Kazkistastan Airlines Director General of Civil Aviation as per Indian Aircraft Rules investigated the incident.

2. The Petitioner violated the Air Traffic Controller (ATC) instruction, at time 1243 IST appellant was instructed by ATC to descend FL-125 report reaching, crew of IAC 485 acknowledged the transmission (as per international Civil Aviation Organisation (ICAO) regulation pilot shall follow ATC instructions) crew of IAC 485 unauthorizedly descended to FL 115 & Failed to report reaching FL-125. As per Indian Aircraft Rules-16 (Rules of the Air) every pilot & every person in charge of the aircraft shall follow rules of the Air. At the time of incident both the Flights were being controlled by Indian Air Force Air Traffic control at Chandigarh.

3. The Capt. Suresh Kumar's comments, that he had the misfortune of having to fact an air incident on account of incompetence, insufficiency & negligence of Air Traffic

controller are baseless & contradictory. He was provided Air Traffic Control Service by a qualified Indian Airforce Air Traffic Controller IAC 485 & VT-HYA were provided approach control service by Chandigarh ATC & Standard procedures were followed.

Incoming flight IAC 485, Airbus-320 had descended to FL-125 (12500;) the out bound flight, Haryana Govt aircraft VT-HYA was given climb to FL-115(11500') thus both the aircraft were vertically separated by 1000 feet which is as per ICAO DOCUMENT NO.Doc-4444, Standard Separation Rules. But Capt Suresh Kumar descended to FL-115 of his own & created a Near Mid Air Collision situation.

In view of the above finding from ATC tape transcript having come to known on 26-11-1998 which indicated some degree of lapses on the part of the crew to adhere to ATC instruction, monitor ATC instructions during flight resulting in jeopardizing the safety to aircraft and its occupants, IAC (Director of Operations) was advised on telephone to continue off roistering of the crew of IAC 485, (PIC Capt. Suresh Kumar & co-pilot Capt. Bhutani) for flight duties pending finalization of investigation. The decision to keep the crew off flying roaster was in the interest of public safety in the background of the Saudia-Kazikistan Mid Air Collision near Delhi where Kazikistan crew had also not adhered to ATC instructions for maintaining a particular flight level, but had descended below the assigned FL to a lower level, without ATC instructions leading to the Mid Air Collision, and a loss of total 349 lives of both the flights.

Capt Suresh Kumar & Co-pilot Capt A. Bhutani were the crew of the flight of IAC 485, Airbus A-320 on 20.11.1998. Both the pilots were licensed by the Central Govt (DGCA) & were supposed to follow Rules of the Air. As per ATC tape

transcript at time 1236 IST IAC 485 requested descends from FL-190. At time 1243 IST, flight was cleared to descend to flight level 125 and report reaching. At time 1246 IST IAC 485 acknowledged the transmission & informed Air Traffic control that he will call reaching FL-125 but flight crew did not comply & failed to inform to ATC reaching FL-125.

5. That Capt Suresh Kumar informed the incidents to IAC but failed to make arrangements to replace the cockpit voice recorder (CVR) of his aircraft so that evidence of his performance during the flight and the instructions given to him could be removed from the tape. He operated the aircraft on the return Chandigarh-Delhi flight utilizing the same CVR tape leading to automatic destruction of previous data on the tape thereby destroying key piece of evidence that would be required for investigation. After operating his flight back to Delhi, he made a written report of the incident to his company, as required, showing that Chandigarh Air Traffic Control had given wrong instructions to him and caused a situation of near air collision.

8. That the evidence on ATC tape transcript at Chandigarh revealed that IC-485 under the command of Capt. Suresh Kumar was cleared by Chandigarh ATC to FL 125 at 12:43 IST which was acknowledged by the crew of the aircraft by repeating the transmission of the ATC. Subsequently at 12:47 IST IC-485 reported to ATC Chandigarh that he has checked ONOGI and requested further descent from FL 115. At this transmission Chandigarh ATC advised the aircraft to maintain FL 125 and on further query from the aircraft reported that he was not cleared to FL 115 and there was reciprocal traffic climbing to FL 115. The ATC tape transcript further reveals that the Haryana Government aircraft was advised by Chandigarh ATC at 12:46 IST to climb to FL 115 and report over ONOGI. The ATC tape transcript does not have any

evidence that IC-485 had requested for descent from FL 125 to FL 115 and neither the ATC Chandigarh had advised the aircraft for this descent." (emphasis added)

5. In my opinion, there is nothing in Rule 19 of the Aircraft Rules

which denies entitlement to the employer to suspend a pilot from flying

duties, unless the principles of natural justice are followed. In cases of

flying duties lives of passengers are at stake, and therefore immediate

suspension can be ordered. Whenever an employee is suspended pending an

enquiry, there is no law that suspension cannot be ordered without giving a

hearing. Gravity of each incident depends on the facts of each case, and in

the present case, gravity of incident in the opinion of this Court was such

that it required immediate de-rostering of the petitioner and which action of

respondents cannot in any manner be said to be illegal. In fact, in cases

such as the present giving of hearing and delaying passing of the interim

suspension order may defeat the whole purpose of the interim suspension

order because lives of passengers would have been put at risk by allowing

the petitioner to pilot the aircrafts. Also, there is an issue of erasing of the

tape transcript against the petitioner. It may be noted that it was not as if

petitioner was not being paid his salary, and the effect of suspension was

only that certain flying allowances would not be paid to the petitioner.

6. It is relevant at this stage to note that the Director General of

the Civil Aviation, being the Civil Aviation Department of the respondent

no.1, had way back passed a final order dated 2.9.1998 confirming the action

of suspending the petitioner, and though that order was challenged in

appeal, I understand that the said appeal was not pursued by the petitioner,

and admittedly till date nothing has been brought on record by the petitioner

as to what emerged as a result of the appeal way back of the year 1998.

Counsel for the petitioner also draws attention of this Court and the fact that

petitioner has retired in the meanwhile, and hence the petitioner has not

pursued the appeal. Thus, the suspension order of the petitioner dated

2.9.1998, as of today, has become final.

7. Reliance placed by the petitioner upon the order dated

24.6.1999 informing the communication of the suspension to the pilots for

the incident of 18.6.1999 does not take the case of the petitioner of

requirement of hearing any further because of two reasons. Firstly that order

dated 24.6.1999 does not show that any hearing was given before passing of

the suspension order. Secondly, the petitioner pleads in the writ petition,

including in Ground B, only as regards that no reasons have been recorded

before suspending the petitioner and not that the order had to be

communicated to the petitioner. Respondent no.1 in its counter-affidavit in

para 34 has specifically stated that reasons were recorded, they do exist in

the file, and that there is no requirement in law to communicate the reasons

to the involved person. When petitioner filed rejoinder to this counter-

affidavit of the respondent no.1, in para 34 all that was stated was that it is

not sufficient to record reasons in the files i.e petitioner admitted that

reasons existed in the file but they were not communicated to the petitioner.

Therefore, it is not even permissible for the petitioner to contend that no

reasons have been recorded before suspending the petitioner and as argued

before me.

8. Petitioner has raised a ground that failure to communicate

reasons has prevented the petitioner from filing the appeal under Rule3(B) of

the Aircraft Rules, 1937, and which I initially found to be an argument

requiring consideration, however, going deeper into the issue it is seen that if

the petitioner was really aggrieved by non communicating of the reasons

recorded, then, actually the petitioner would have either filed an appeal

stating that no order has been communicated to him and he be

communicated accordingly or the petitioner should have in writing asked

the reasons from the respondents by stating that he wanted to file an appeal

against the interim suspension, and none of which courses of action were

followed by the petitioner. Therefore, this Court would loath to allow

technical arguments to prevail over substantive justice in a case like the

present where there was almost a mid air collision of an aircraft which the

petitioner was flying with a King Air Aircraft VT-HYA of Haryana

Government which had taken off from Chandigarh. I am also indeed

doubtful whether at all an appeal lies under Rule 3B against the suspension

pending enquiry, because, as per Rule 19(3) only reasons have to be

recorded for suspension and there is no requirement of passing of an order.

9. In view of the above, petitioner is not entitled to any relief in

this writ petition for holding that the interim suspension order of de-rostering

the petitioner from flying duties was illegal. There is nothing in law which

requires communications of the reasons to the petitioner, and nor has the

petitioner specifically so pleaded in the writ petition that reasons were to be

communicated to him. A right to file the appeal, assuming it exists, would

only mean that petitioner would be entitled to be given the reasons, but even

that course of action was not pursued by the petitioner, because, he never

asked that the reasons for his interim suspension be communicated to him,

for the purpose of wanting to file an appeal or challenge the same in any

other manner.

10. I may state that I am not concerned with the merits of the matter

but the fact that whether or not there exists a power of interim suspension

pending the investigation without giving a hearing, and I do find that there is

a power of interim suspension as per Rule 19(3) without following principles

of natural justice, and such power of interim suspension was rightly

exercised by the respondents in the present case. All that Rule 19(3) required

was recording of reasons and which requirement was complied with.

11. I clarify that if the petitioner feels that he has to pursue his

appeal against the final suspension order dated 2.9.1998, the petitioner may

do so, and in case petitioner succeeds, then at that stage he may have a right

in accordance with the order which may be passed in an appeal.

12. In view of the above, there is therefore no merit in the petition,

which is accordingly dismissed, leaving the parties to bear their own costs.

NOVEMBER 18, 2013                                VALMIKI J. MEHTA, J.
ib