Delhi High Court
Yashwanth Shenoy vs The Union Of India And Anr. on 18 April, 2018
$~33
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10862/2017 & CM No.44492/2017
% Date of decision : 18th April, 2018
YASHWANTH SHENOY ..... Petitioner
Through : Mr. Ashok Kr. Verma, Adv. with
petitioner in person
versus
THE UNION OF INDIA AND ANR. ..... Respondents
Through : Ms. Anjana Gosain, Adv., Capt.
S. Kapahi, SFOI, Mr. Ashutosh
Vasistha, Director (Operations)
and Mr. R.S. Jamwal, Dy.
Director(Operations)
Mr. Rachit Mittal & Mr. Ankit
Khera, Advs. for R-6/NOIDA
Mr. Alok Sangwan, AAG
(Haryana), Mr. Utkarsh
Srivastava and Mr. Sunny
Kadiyan, Advs. for HUDA
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. This writ petition has been instituted in public interest by an
advocate concerned with aviation safety.
The writ petition asserts that aviation safety has attained critical
levels on account of large scale violations of the applicable laws, rules
and regulations. It is contended that the impact of pilot fatigue has been
a direct cause or possible cause for air accidents/incidents. The
petitioner has emphasized that worldwide many aviation accidents
which have occurred are attributable to pilot fatigue and, in the Indian
context, attributable specifically to exemptions and variations from the
Flight Duty Time Limit Regulations effected by the concerned
authorities.
2. The issue pressed by the petitioner is within a narrow legal
conspectus.
3. Our attention has been drawn to the provisions of the Aircraft
Act, 1934. We have also been taken through the Aircraft Rules, 1937
(framed in exercise of powers conferred by Sections 5 and 7 and
Section 8(2) of the Aircraft Act, 1934 as well as Section 4 of the Indian
Telegraph Act, 1885). These rules were notified vide notification no. V-
26 on the 23rd of May, 1937 in supersession of the Aircraft Rules, 1920.
A further amendment thereto has been effected on 13th January, 2015.
4. Keeping in view the issues pointed out by the petitioner, it is
essential to consider the earlier Rule 42A of the Aircraft Rules, 1937 as
was implemented w.e.f. 23rd March, 1937. For expediency, we extract
this rule hereunder :
"42A. Pilot not to fly for more than 125 hours during any
period of 30 consecutive days.--
No pilot of a flying machine, shall, in his capacity as such
pilot, fly for more than 125 hours during any period of 30
consecutive days:
Provided that without prejudice to the provisions of
rule 160, the Director-General may, subject to such
conditions and limitations as he may specify, by order in
writing, exempt any such pilot from the provisions of this
rule.
Explanation.--For the purposes of this rule, the flying time of
a pilot either as solo pilot-in-command of an aircraft will be
counted fully and the flying time of a pilot engaged as co-
pilot or supernumerary pilot will be counted at 80 per cent.
of the flying time.
(Emphasis by us)
5. It is noteworthy that the proviso to Rule 42A empowered the
Director General to exempt any pilot from the provisions of the rule by
an order in writing and subject to such conditions and limitations as he
may specify.
6. We may also extract from Part XII B 'Regulatory Provisions' of
the Aircraft Rules, 1937, the Rule 133A captioned 'Directions by
Director-General' which accepts the Director General to issue
directions through notices which reads as follows :
"133A. Directions by Director-General- (1) The Director-
General may, through Notices to Airmen (NOTAMS),
Aeronautical Information Publication, Aeronautical
Information Circulars (AICs), Notices to Aircraft Owners
and Maintenance Engineers and publication entitled Civil
Aviation Requirements, issue special directions not
inconsistent with the Aircraft Act, 1934 (22 of 1934) or these
rules, relating to the operation, use, possession, maintenance
or navigation of aircraft flying in or over India or of aircraft
registered in India.
(2) The Civil Aviation Requirements under sub-rule(1) shall
be issued after placing the draft on the website of the
Directorate General of Civil Aviation for a period of thirty
days for inviting objections and suggestions from all persons
likely to be affected thereby;
Provided the Director General may, in the public
interest and by order in writing, dispense with the
requirements of inviting such objections and suggestions or
reduce the period for submitting such objections and
suggestions.
(3) Every direction issued under sub-rule(1) shall be
complied with by the person or persons to whom such
direction is issued.
(4) The Director-General may, by general or special order in
writing, exempt any aircraft or class of aircraft or any person
or class of persons from the operation of the directions given
in the publication entitled 'Civil Aviation Requirements'
under this rule, either wholly or partially, subject to such
conditions, if any, as may be specified in such order."
7. In purported exercise of the powers under Rule 42A and Rule
133A, the office of the Director General of Civil Aviation issued the
'Civil Aviation Requirements' (CAR) which came into effect from 11th
August, 2011". It is noteworthy that the 'CAR superceded requirements
contained in AIC-28 of 1992 with respect to operators of and flight
crew engaged in scheduled/non-scheduled air transport operations and
general aviation aeroplanes operations'.
8. The flight duty time limitations for domestic and neighboring
countries were prescribed in para 6 and the limitations for international
operations were prescribed in para 7 of the CAR, which read as follows:
"6. Requirements for domestic and neighbouring countries
operations :
6.1 Daily maximum flight time limitations during any 24
consecutive hours :
Crew Complement Maximum Flight Time
Limitation/Max Number of
Landings
8 hours/up to 6 landings
For day operations
Two-Pilot Operations 9 Hours/up to 3 landings
For night operations
9 Hours/up to 2 landings
*Maximum Number of Landings is further dependent on
Flight Duty Period.
6.2 Cumulative flight time limitations
Cumulative Period Flight time Limitation (Hours)
In 365 consecutive days 1000
6.3 Maximum Daily Flight Duty Period - Two Pilot
Operations
6.3.1 Maximum Daily Flight Duty period for two pilot
operation shall be as per the following table :
Maximum Maximum Number of Maximum Flight
Daily landings Time Limitation
Flight Duty
Period
(FDP)
Limitation
12.5 hours 2 for night operations 9 hours
3 for day operations
11.5 hours 5 8 hours
**Reduction of Flight duty period due to operation in
WOCL
6.3.2 When the FDP starts in the WOCL, the maximum
FDP stated in above table shall be reduced by 100% of its
encroachment up to a maximum of two hours. When the FDP
ends in or fully encompasses the WOCL, the maximum FDP
stated in above points shall be reduced by 50% of its
encroachment.
7. REQUIREMENTS FOR INTERNATIONAL
OPERATIONS
7.1 Daily maximum flight time limitations for
international operations during any 24 consecutive hours :
Crew Complement Maximum Flight Time
Limitation/Max Number of
Landings**
10 hours/
up to 1 landings
For day operations
Two-Pilot Operations 9 hours/up to 3 landings
For night operations
9 hours/up to 2 landings
Three-Pilot Operations 12 Hours/1 landing
Four-Pilot Operations 16 Hours/1 landing
Four-Pilot ULR More than 16 hours
Operations*
*ULR Operations needs specific approvals of DGCA on City
Pairs and case-to-case basis
** Maximum Number of Landings are further dependent on
Flight Duty Period
7.2 Cumulative flight time limitations
Cumulative Period Flight Time Limitation (Hours)
(only for two pilot
operations)
In 365 consecutive days 1000
7.3 Maximum Daily Flight Duty Period - Two Pilot
Operations
7.3.1 Maximum Daily Flight Duty period for two pilot
operation shall be as per the following table:
Maximum
Daily Flight
Maximum Number Maximum Flight
Duty Period
of landings Time Limitation
(FDP)
Limitation**
13 hours 1 10 hours
12.5 hours 2 for night operations 9 hours
3 for day operations
**Reduction of Flight duty period due to operation in
WOCL
7.3.2 When the FDP starts in the WOCL, the maximum
FDP stated in above points shall be reduced by 100% of its
encroachment up to a maximum of two hours. When the FDP
ends in or fully encompasses the WOCL, the maximum FDP
stated in above points shall be reduced by 50% of its
encroachment.
7.4 Augmented Crew
7.4.1 The maximum flight duty period may be extended in
accordance with the following table of the flight crew is
augmented
Maximum extension of the FDP
Rest
facility
available Augmented crew (3 Double crew (4
pilots) pilots)
Rest seat 2H 4H
Bunk 4H 6H
(a) In flight, rest of less than 3 hours doesn't
allow for the extension of the FDP.
(b) The applicable Flight Duty Period may be
increased up to a maximum of 16 hours in case of Rest Seat
and up to a maximum of 18 hours in case of Bunk. In case of
double crew, rest facilities shall be available for both pilots
not on active duty.
(c) In case of augmented/double flight crew, the
division of duty and rest between the flight crew members
being relieved will be kept in balance, which would be spelt
out in detail in the Scheme of the operator.
Note: Scheme shall specify that Flight time will be
counted only when the crew in 'on controls'.
(d) Rest Seat will be at least a 'Business Class'
seat reclining to at least 40 degree back angle to the vertical,
outside the cockpit and separated from passengers by a dark
curtain.
(e) Crew shall be allowed to return to controls
only after 30 minutes of waking after bunk/seat rest, which
may be part of the rest of 3 hours."
9. Certain "General Requirements" including mandatory period of
rest before a flight were prescribed in para 8, which reads as follows :
8. GENERAL REQUIREMENTS
8.1An operator shall follow the requirements of this CAR
based on type of flight being operated i.e. if all sectors of a
flight are within the neighbouring countries, then
requirements for 'domestic operations' shall be
followed and in case even one sector of the flight falls in
international operation then for the full/entire flight
requirements of 'international Operations' shall be
followed.
8.2 Duty Period:
8.2.1 No operator shall assign and no flight crew member
shall accept any duty to exceed:
(a) 190 duty hours in any 28 consecutive days, spread
evenly as practicable through out this period;
(b) 100 duty hours in 14 consecutive days; and
(c) 60 duty hours in any seven consecutive days.
8.3 Rest:
8.3.1 Minimum Rest (Before a flight)
8.3.1.1 The minimum rest, which must be provided before
undertaking a flight duty period, shall be:
At least as long as the preceding duty period,
OR
(a) 12 hours,
(b) 14 hours on crossing 3 time zones, or
(c) 36 hours on crossing 8 time zones
whichever is the greater;
8.3.1.2 If the preceding duty period, which includes any
time spent on positioning, exceeds 18 hours, then the ensuing
rest period shall include a local night.
8.3.1.3 Period of transportation to and from an airport shall
neither be counted towards duty time nor rest period. The
operator shall include in the 'Scheme' the optimum time
of transportation after taking into account various factors
and on ensuring that the rest period does not get reduced
below the minimum rest requirements.
8.3.2 Rest after return to base
8.3.2.1 An operator shall ensure that effects on crew
members of time zone differences will be compensated by
additional rest as specified below.
8.3.2.2 Minimum rest including local nights shall be given,
according to the table below, when coming back to home
base, to any crew member who has been away from the
home base in such a way that the WOCL had to be
modified.
Hours of Local nights
Time zone difference
rest
Time zone difference" in this table is the time zone
difference between the starting and finishing points of the
initial duty.
8.3.3 Weekly Rest
An operator shall ensure that the minimum rest is increased
periodically to a weekly rest period, being a 36-hour period
including two local nights, such that there shall never be more
than 168 hours between the end of one weekly rest period and
the start of the next.
8.4 Reporting time:
8.4.1 Crew report times shall be specified by the operator
realistically, which reflect the time required to complete pre-
flight duties, both safety and service-related, but shall not be
less than 45 minutes, and
8.4.2 A standard allowance of 30 minutes for major operators
and 15 minutes for others shall be added at the end of flight time
to allow for the completion of checks and records.
8.4.3 For record purposes, the pre-flight report time shall count
both as duty and as flight duty, and the post-flight allowance
shall count as duty."
10. Our attention has been drawn by Ms. Anjana Gosain, learned
counsel who appears for the respondents to para 4.2 of this CAR which
reads as follows :
"4.2 DGCA may approve, in exceptional circumstances,
variations to these regulations on the basis of a risk
assessment provided by the operator. Approved variations
shall provide a level of safety equivalent to, or better than,
that achieved through the prescriptive fatigue management
regulations specified in this CAR."
(Emphasis by us)
11. It is undisputed that in exercise of the discretion conferred upon
him by para 4.2 of CAR, the Director General of Civil Aviation has on
several occasions granted variations and exemptions to various aircraft
operators.
We have been provided a consolidated list of variations granted
to various operators to the Regulations in various circumstances by Ms.
Anjana Gosain, learned counsel for the respondent no.2, which is taken
on record.
12. The definitions of the expressions 'Flight Duty Period', 'Flight
Time', 'Rest Period', and 'Window of Circadian Low' as contained in
para 3 of the CAR deserve to be noted and read as follows :
"3.2 Duty. Any task that flight crew members are
required by the operator to perform, including, for
example, flight duty, administrative work, training,
positioning and standby when it is likely to induce
fatigue.
3.3 Duty period. A period which starts when a
flight crew member is required by an operator to report
for or to commence a duty and ends when that person is
free from all duties.
3.4 Fatigue. A physiological state of reduced
mental or physical performance capability resulting
from sleep loss or extended wakefuleness, circadian
phase, or workload (mental and/or physical activity)
that can impair a crew member's alertness and ability
to safely operate an aircraft or perform safety related
duties.
3.5 Flight Duty Period. A period which commences
when a flight crew member is required to report for
duty that includes a flight or a series of flights and
which finishes when the aeroplane finally comes to rest
and the engines are shut down at the end of the last
flight on which he/she is a crew member.
3.6 Flight time. The total time from the moment an
aeroplane first moves for the purpose of taking off until
the moment it finally comes to rest at the end of the
flight.
xxx
3.12 Rest period. An uninterrupted and defines
period of time during which a crew member is free from
all duties and airport standby.
xxxx
3.17 Window of Circadian Low (WOCL) is best
estimated by the hours between 0200 and 0600 for
individuals adapted to a usual day-wake/night sleep
schedule. This estimate of the window is calculated
from scientific data on the circadian low of
performance, alertness, subject report (i.e. peak
fatigue), and body temperature. For flight duty periods
that cross 3 or fewer time zones, the window of
circadian low is estimated to be 0200 to 0600 home-
base/domicile time. For flight duty periods beyond 3 or
more time zones, the window of circadian low is
estimated to be 0200 to 0600 home-base/domicile time
for the first 48 hours only. After a crew member
remains more than 48 hours away from home-
base/domicile time, the window of circadian low is
estimated to be 0200 to 0600 referred to local time at
the point of departure."
13. The definitions speak for themselves. It cannot be contended or
held that calling upon a pilot to undertake a flight when he is fatigued or
placed within the 'Window of Circardian Low' would reduce the level
of alertness of flight crew members and thereby imperil the safety of
the passengers as well as of the aircraft.
14. On 16th September, 2016, the legislature effected a second
amendment to Rule 42A of the Aircraft Rules, 1937 and substituted the
aforesaid extracted rule with the following :
"42A. Fatigue Management of Flight Crew and Cabin
Crew Members.―
(1) Taking into account the likely impact of fatigue on the
level of alertness of flight crew members and cabin crew
members, the maximum limits of flight time, flight duty period
and duty period of flight crew members as well as cabin crew
members, and also the minimum rest periods required to be
observed by such crew members, may be specified by the
Director-General.
(2) No flight crew member or cabin crew member of a flying
machine registered in India, or wet leased by an Indian
operator, shall contravene the limitations stipulated by the
Director-General under sub-rule (1).
(3) Every Indian operator shall establish a scheme of flight
and duty time limitations and minimum rest periods for its
flight crew members as well as cabin crew members in
accordance with the stipulations made by the Director-
General under sub-rule (1) and submit the same to the
Director-General for approval and after approval by the
Director-General, such scheme shall form part of the
Operations Manual of the concerned operator.
Explanation.--For the purposes of this rule, 'Indian
operator' means an operator having his principal place of
business, or his permanent residence, in India."
(Emphasis supplied)
15. The change to the caption of the rule to 'Fatigue Management of
Flight Crew and Cabin Crew Members' reflects the importance and
significance attached by the legislature to the aspect of fatigue of the
crew and its consequential impact on the safety and security of the
aircraft and the passengers. Most importantly, the proviso to the earlier
Rule 42A, which permitted discretion to the Director General to permit
exemptions to any pilot from the rigours of regulations under CAR was
taken away.
16. Thus, upon the amended rule 42A taking effect on 16 th
September, 2016 (vide GSR No. 911(E)) no discretion whatsoever
survived with the Director General to permit any exemption or
variations from the stipulations of the maximum flight time and
minimum rest time which have been prescribed. The legislature also
took away the prescription of the maximum of 125 hours and made a
specific reference to 'maximum limits of flight time, flight duty period
and duty period' of a crew member and also 'minimum rest periods'
required to be observed by such crew members.
17. The Civil Aviation Requirements (CAR) have been issued in
purported exercise of the powers conferred by rule 42A and rule 133A
of the Aircraft Rules, 1937. So far as the prescription of a maximum of
flight time for pilots is concerned, the same stands prescribed under the
earlier Rule 42A alone and no other rule.
18. The Civil Aviation Requirements (CAR) of 11th August, 2011
was an executive order specifying the conditions and limitations within
which the pilot had to fly for 125 hours. Upon the amendment to Rule
42A taking effect, the Director General remains enjoined to specify the
maximum limits of flight time, full duty period and duty period of flight
required to be observed by such crew members as also the minimum
rest period.
19. In the light of the above discussion, there is substance in the
submission of the petitioner that the Director General of Civil Aviation
has no authority whatsoever to grant any exemption or variation from
the maximum limits of flight time, flight duty period, duty period as
well as the minimum rest period.
20. It cannot be disputed that even the amended rule 42A mandates
that it is the Director General who has to specify the limits of the
maximum flight time and the minimum rest period. It also cannot be
disputed that it would be for the Director General to undertake a review
or a fresh examination of the Civil Aviation Requirements as effective
since 2011 to ensure that they conform to the latest legal requirements
and the factual position.
21. It is not disputed that so far as these periods are concerned, the
Director General of Civil Aviation has prescribed them under the Civil
Aviation Requirements of 11th August, 2011.
22. In view of the above, it is directed as follows :
(i) The respondents are bound to comply with Rule 42A of the
Aircraft Rules as amended on 16th September, 2016 so far as Fatigue
Management of Flight Crew and Cabin Crew Members is concerned
and to specify 'the maximum limits of flight time, flight duty period and
duty period of flight crew members as well as cabin crew members, and
also the minimum rest periods required to be observed by such crew
members' after taking into account the 'likely impact of fatigue on the
level of alertness of flight crew members and cabin crew members'
(ii) The Director General of Civil Aviation is directed to undertake
an examination of the existing Civil Aviation Requirements (CAR),
2011 in accordance with the provisions of the amended Rule 42A and
Rule 133A of the Aircraft Rules, ensuring that the exercise is completed
within a period of one year from today.
(iii) The respondents shall ensure that to the extent that the Civil
Aviation Requirements (CAR), 2011 makes a prescription of the flight
duty time limitation, the same shall continue to guide all decisions with
regard to the schedule of the flight and cabin crew till such time any
alternation or modification is effect thereto by the Director General.
This writ petition is disposed of in the above terms. No order as
to costs.
CM No.44492/2017
In view of the disposal of the petition, this application does not
survive for adjudication and is dismissed.
Dasti under signatures of the Court Master.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
APRIL 18, 2018/kr
