Delhi High Court
Capt. Karan Mehta vs Directorate General Of Civil Aviation ... on 5 July, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: March 20, 2024
Decided on: July 05, 2024
+ W.P.(C) 8826/2020
CAPT. KARAN MEHTA
..... Petitioner
Through: Ms. Neha Jain, Advocate
V
DIRECTORATE GENERAL OF
CIVIL AVIATION AND OTHERS
..... Respondents
Through: Ms. Anjana Gosain and
Ms. Nippun Sharma,
Advocates for R-1 & 2
Mr. Manu Beri and
Mr. Prateek Kasliwal,
Advocates for R-3
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The petitioner filed the present writ petition under Article 226 of
the Constitution of India to set aside the suspension order no.
AP1/PFMC/2020-AS dated 21.02.2020 (hereinafter referred to as
"the impugned order dated 21.02.2020") whereby the respondent
no.2 suspended the license of the petitioner for a period of three years
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 1
and the order dated 24.09.2020 (hereinafter referred to as "the
impugned order dated 24.09.2020") whereby the respondent
no.1/Directorate General of Civil Aviation (DGCA) dismissed the
appeal of the petitioner and confirmed the suspension of the license
of the petitioner.
2. The factual background of the case as stated by the petitioner is
that the petitioner is a commercial pilot having Airline Transport
Pilot License (ATPL) bearing no. 5120 and in past had served as
commercial pilot with Jet Airways and was serving as Captain with
respondent no. 3/Air Asia (India) Ltd. (hereinafter referred to as "the
respondent no.3"). The petitioner has joined the respondent no. 3 on
01.02.2019 as Senior First Officer and was posted at Delhi. The
petitioner got upgraded to Command (Captain) on 04.09.2019 due to
his performance and after proper training and checks as per DGCA
standards.
2.1 The petitioner was rostered to operate the flight bearing no. I5
578 from Delhi to Kolkata (DEL-CCU) on 26.01.2020 due to
unforeseen exigency and shortage of crew. The petitioner before
operating flight claimed to have been suffering from an ailment and
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had reported sick on 19.01.2020 for which he was taking medication
prescribed by doctor. The petitioner was requested to operate the
flight due to unforeseen exigency and shortage of crew and despite
medical condition reported for last minute duties on request from the
respondent no.3 with no other option in hand. The petitioner was
neither under influence of Alcohol, sedative, narcotic nor had
consumed any psychotropic substance before the flight. The flight
crew had undergone a pre-flight Breath Analyzer examination at
Delhi pursuant to the provisions given in the Civil Aviation
Requirements Section-5, Series-F, Part-III, Issue-III, Rev 01 dated
01.08.2018 (hereinafter also referred as "CAR") wherein the
petitioner was tested BA positive with his BA (Breath Analyzer)
readings as 0.030% BAC at 11:30 am and 0.028% BAC at 11:45 am
respectively. The petitioner was previously also found BA positive
for alcohol during pre-flight Breath Analyzer examination on
22.05.2011 at Delhi when he was serving as commercial pilot with
Jet Airways and was scheduled to operate flight bearing no. 9W
2645. The petitioner was de-rostered on 26.01.2020 and was directed
to deposit his license and follow up with the Regulator vide an email
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 3
dated 26.01.2020 received from the respondent no.3. The petitioner
vide email dated 27.01.2020 addressed to the respondent no 3 stated
that he had taken medication namely Atrovastatin Tb IP 20mg, Dr
Johns J2 tooth ache drops along with Codeine phosphate syrup on the
night of 25.01.2020 before the flight as he had fallen sick on
19.01.2020. The petitioner also mentioned that during second test, the
machine was not changed and witness was not called. The petitioner
requested the respondent no 3 for waiving off the suspension and
endorsement on licence. The petitioner also submitted his licence to
the respondent no 3. The respondent no 3 again vide email dated
27.01.2020 through Chief of Safety disagreed with medical condition
of the petitioner and stated in email dated 27.01.2020 that the
medicines consumed by the petitioner were not advised by the
company doctor and any intake of cough syrup would not result in a
reading of BA positive as generated by the pre-flight Breath Analyzer
test of the petitioner. The relevant portion of the email dated
27.01.2020 sent by the respondent no.3 is reproduced as under:
We are accessing the CCTV footage and will revert, your
statements yesterday are in variance with what has been
submitted now. The drugs that you have mentioned, have
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 4
not been advised or communicated to the company doctor
nor have you submitted in your initial statement.
Any intake of cough syrup mentioned will not result in a
reading as generated. In view of this we are unable lo use it
as a mitigation. You are advised to submit a final statement
by 1800 hrs today on account of the above.
2.2 The respondent no. 3 vide email dated 17.02.2020 assigned
ground duties for three months to the petitioner due to his BA
positive reading. The respondent no 3 without affording any
opportunity to the petitioner to show-cause sent a letter to Director of
Air Safety, DGCA vide ref. number AAI/FSD/2020/DGCA/03
appeared to be dated 26.01.2020 through Deputy Chief of Safety
wherein stated that the petitioner was detailed to operate I5 578
(DEL-CCU) on 26.01.2020 but he was tested BA positive at the time
of reporting at 11.30 Hrs with a reading of 0.030%. The second test
was carried out after the control test and indicated a reading of
0.028% at 11.45 Hrs. It was further reported that the control test was
normal with a reading of 0.00% at 11.35 Hrs and the petitioner was
de-restored immediately.
2.3 The respondent no 2 without giving opportunity of being heard to
the petitioner passed the impugned order dated 21.02.2020
suspending the license for period of 03 years on the ground of repeat
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violation of CAR provisions. The respondent no.2 conducted no
independent enquiry to assess the veracity of the circumstances
narrated by the petitioner and only relied only on version of the
respondent no.3. The relevant portion of the impugned order dated
21.02.2020 is reproduced as under:
1. Whereas the flight crew is required to undergo pre-flight
medical examination for detection of consumption of
alcohol as per the provision given in CAR Section-5, Series-
F, Part-III, Issue-III, Rev 01 dated 01.08.2018.
2. Whereas Capt. Karan Mehta, ATPL No. 5120 belonging
to M/s Air Asia was scheduled to operate flight no. 15-578
(DEL-CCU) tested positive for alcohol during BA (Breath
Analyzer) examination on 26.1.2020 at Delhi, which is in
contravention to the provision contained in the aforesaid
CAR.
3. Whereas, Capt. Karan Mehta, had earlier tested positive
for alcohol during preflight BA examination on 22.3.2011 at
Delhi while scheduled to operate M/s Jet Airways flight no.
9W-2645. The present case of BA positive coupled with his
previous case of BA positive falls within the provision of
para 8.1(b) of CAR, Section 5, Series-F, Part-III, Issue-III,
Rev-01 dated 01.08.2018
4. Now, therefore in exercise of the powers designated
under Clause (a) of Sub-Rule (3) of Rule 19 of the Aircraft
rules, 1937, read with Ministry of Tourism and Civil
Aviation Notification No. S.O. 727 of October, 1994 the
undersigned hereby suspends in public interest, the license
held by Capt. Karan Mehta, ATPL No. 5120 for a period of
three years from 26.01.2020 i.e. the date on which he was
tested BA positive and shall be endorsed on his pilot license.
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 6
2.4 The respondent no 3 through Chief of Safety on 26.02.2020
through email asked the petitioner to make a fresh statement with
respect to alleged incident and to mention about any such past
incident. The petitioner informed about past incident which happened
in 2011 on his CPL license in Jet Airways but there was no past
incidence on his ATPL license and there was no endorsement of any
past incident on ATPL license. The petitioner received an email on
01.04.2020 regarding termination of his service with the respondent
no.3 despite the fact that he was assigned ground duties by the
respondent no.3. It was further intimated that the petitioner has
breached the agreement and is hence liable to pay Rs. 22,00,000/- as
liquidated damages. The petitioner received another email dated
06.04.2020 from the respondent no.3 stating the termination of the
petitioner and mentioning the details of the bank account wherein the
petitioner was required to transfer the fund/liquidated damages by
15.04.2020. The petitioner submitted a representation dated
08.04.2020 to the respondent no.3 detailing the facts and grounds of
his illegal suspension. The respondent no.3 replied to the
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representation of the petitioner on 21.05.2020 and rejected the claim
of the petitioner to be reinstated into service and first time mentioned
about the illegal suspension of license of the petitioner for a period of
03 years.
2.5 The petitioner preferred RTI application dated 22.05.2020
seeking information regarding the status of his license but he has not
received any reply. Thereafter, the petitioner preferred a statutory
appeal on 15.06.2020 under section 3B, Part I of the Aircraft Rules,
1937 before the respondent no.1/DGCA challenging the impugned
order dated 21.02.2020 passed by the respondent no.2 whereby the
license of the petitioner was suspended. The respondent no.1/DGCA
vide the impugned order dated 24.09.2020 refused to interfere with
the impugned order dated 21.02.2020 passed by the respondent no.2
and dismissed the appeal of the petitioner being devoid of any merit.
2.6 The petitioner being aggrieved challenged impugned orders dated
21.02.2020 and 24.09.2020 on various grounds and filed the present
writ petition with the following prayers:
(i) issue an appropriate writ, order or direction thereby
setting aside the impugned Order dated 24.09.2020 passed
by Respondent No.1, dismissing the appeal of the Petitioner
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and confirming the suspension of the license of the
Petitioner for three years; and
(ii) issue an appropriate writ, order or direction thereby
setting aside impugned order dated 21.02.2020 passed by
Respondent No.2 whereby the Respondent no.2 has
unilaterally, arbitrarily and illegally suspended the license
of the Petitioner for a period of three years;
(iii) issue an appropriate writ, order or direction thereby
revoking the suspension of the ATPL license of the
Petitioner; and
(iv) issue an appropriate writ, order or direction thereby
restoring the privileges, status of a Commercial Pilot to the
Petitioner from date of suspension i.e. 21.2.2020; and
(v) Pass any such other or further orders as this Hon'ble
Court may deem fit and proper in the interest of justice and
in favour of the Petitioner.
3. The respondents no 1 and 2 filed counter affidavit in response to
the present petition. The respondents no 1 and 2 in preliminary
objection stated that the petitioner had not availed alternate remedy
as provided under Rule 3B of Aircraft Rules 1937 by filing further
Appeal to the Secretary of the Ministry of Civil Aviation against the
order of the Director General of Civil Aviation/the respondent no 1.
The respondents no 1 and 2 in preliminary submissions stated that the
International Civil Aviation Organization (ICAO) is the international
body which lays down regulations and recommendations relating to
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civil aviation that every contracting state (including India) is bound
to follow. ICAO lays down Standards and Recommended Practices
(SARPs) which covers a wide range of subjects relating to civil
aviation. Para 1.2.7 of Annex 1 of SARPs prohibits the use of
psychoactive substances by license holders. India being one of the
contracting States is required to frame legislations for enforcement of
these standards as laid down by the ICAO. Rule 24 of the Aircraft
Rules 1937 was enacted which is in tandem with the ICAO
recommendation.
3.1 The respondent no 1 being a regulatory body for overlooking
operations carried out by Airline operators and to ensure
compliance to Rule 24 of Aircraft Rules, 1937 issued the Civil
Aviation Requirements Section-5, Series-F Part-III in exercise of
powers delegated under Rule 133A of Aircraft Rules, 1937. The
respondent no 1/DGCA has prescribed a zero tolerance policy
with regard to blood alcohol content as there shall be no detectable
blood alcohol in breath, urine or blood alcohol analysis of the
crew, therefore the permissible limit of blood alcohol has been
laid down as 0.000 in the CAR. Section-5, Series-F Part-III of
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CAR lay down the procedure for conduct of pre/post flight breath-
analyzer test for consumption of alcohol. Each Airline Operator
has a dedicated Medical Room equipped with the breath-analyzer
testing facility and medical staff comprising of Doctor,
Paramedics or Nurse for conducting breath-analyzer test. The
breath-analyzer testing is recorded on camera. The
abovementioned CAR section states that the permissible limit of
blood alcohol is laid down as 0.000%. It further states that only in
the case of accident, the samples of blood, urine, etc. are collected
for a detailed chemical analysis. The specifications of the breath-
analyzer equipment are also laid and it is further mentioned in
CAR that the Airlines are required to get their breath-analyzer
equipment calibrated from an agency having ISO certification to
undertake the calibration activity. It also lays duty of the
operator/crew member/maintenance personnel to ensure that there
is no contravention of Rule 24 of the Aircraft Rules, 1937 by
conduct of breath-analyzer examination before operation of flights
in India.
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3.2 The respondents no 1 and 2 in para-wise reply in the counter
affidavit stated that there is no infirmity in the impugned order
dated 21.02.2020 as the appeal of the petitioner was disposed of
after giving him an opportunity of personal hearing on
29.07.2020. It is submitted that the respondent no.1/DGCA is not
an autonomous body but is an attached office of the Ministry of
Civil Aviation and is responsible for regulation of Air Transport
services to, from and within India and for enforcement of CAR.
The provision of CAR dated 01.08.2018 is mandatory and has to
be followed without any exception even during unforeseen
exigencies as the safety of the passengers is the topmost priority.
The petitioner was bound to consult the company doctor regarding
his medication as stipulated under Para 4.3.9 of CAR dated
01.08.2018 which prohibits any crew member from consuming
any drug/formulation or use any substance like mouthwash or
tooth gel which has an alcoholic content and further stipulates that
if any crew member is undergoing such medication, he is required
to consult the company doctor before undertaking any flying
assignment. It is submitted that according to the respondent no.3,
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the petitioner did not consult the company doctor before
undertaking flying assignment in terms of the CAR. The petitioner
allegedly ingested the following medicines namely, Atorvastatin
Tb IP 20 mg, Dr. Johns J-2 tooth ache drops along with Codeine
Phosphate syrup. It is further stated that as per the Breath
Analyzer report of the respondent no. 3, the first BA reading of
the petitioner was recorded as 0.030% BAC at 11:31 hrs followed
by the control test was conducted to verify the correctness of the
reading of the breath analyzer equipment at 11:36 hrs whereby it
was established that the breath analyzer equipment was in perfect
working condition. Thereafter, the second BA reading was
recorded as 0.028 % BAC at 11:46 hrs. The contention of the
petitioner that the procedure of the breath analyzer examination
was not followed is wrong as the conduct of the control test was
verified by a witness, namely, Ms. Aanchal Sharma, which clearly
establishes that the instrument was in perfect working condition.
The process of the BA test of the petitioner was carried out on
26.01.2020 at Delhi and the same was recorded on CCTV camera
and according to procedure, the impugned order dated 21.02.2020
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was sent to Chief of Flight Safety of the respondent no.3 by email
dated 26.02.2020.
3.3 It is further stated in the counter affidavit that it was the
petitioner's second offence, the first being when he tested BA
positive during pre-flight BA examination on 22.05.2011 at Delhi
while scheduled to operate Jet Airways flight bearing no. 9W
2645 and the license of the petitioner was rightly suspended by the
respondent no.1/DGCA for a period of 03 years. CAR stipulates
that if a crew member tests positive in breath analyzer test on two
different occasions it amounts to a repeat violation irrespective of
the type of license the petitioner is holding at the time of BA test.
The respondent no.1/DGCA has rightly fulfilled its duty and
passed orders in due compliance of CAR and the petitioner's claim
is frivolous and devoid of merit.
4. The respondent no. 3 also filed a counter affidavit wherein
stated that the petitioner on 26.01.2020 was tested positive for the
pre-flight Breath Analyzer test (BA test) before operating the
respondent no.3 flight bearing no I5 578 (DEL-CCU). It was the
second occasion when the petitioner tested positive for pre-flight
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BA test. Accordingly, under such circumstances, the applicable
provisions mandate that the petitioner's license shall be
terminated/suspended for a period of 03 years and such suspension
was effected vide impugned order dated 21.02.2020 issued by the
respondent no. 2. The petitioner challenged the impugned order
dated 21.02.2020 through an appeal before the respondent no.
1/DGCA which was dismissed vide the impugned order dated
24.09.2020.
4.1 It is further stated that none of the grievances raised by the
petitioner pertain to the respondent no. 3 and no relief has been
sought by the petitioner against the respondent no. 3. The
petitioner has failed to establish a valid cause of action against the
respondent no. 3. The petitioner had submitted a representation
dated 08.04.2020 to the respondent no. 3 on basis of facts as stated
in the present writ petition. The respondent no. 3 had responded
by a letter/communication dated 21.05.2020 wherein refuted the
assertions made by the petitioner.
4.2 The respondent no. 3, operating as Air Asia (India) Ltd.
provides scheduled passenger and cargo services across the
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country and the respondent no. 3 lacks the authority to issue or
revoke statutory permits/licenses required by pilots, including the
petitioner. It is stated that the present petition be dismissed.
5. The counsel for the petitioner advanced oral arguments and argued
that the impugned order dated 24.09.2020 passed by the respondent
no.1 dismissing the appeal of the petitioner is illegal, arbitrary,
unreasonable and unconstitutional being in violation of Articles 14,
16 and 21 of the Constitution of India and the principles of natural
justice. The impugned order dated 24.09.2020 was passed in
mechanical manner and without application of mind. The impugned
order dated 21.02.2020 passed by the respondent no 2 is also in
violation of the principles of natural justice as the petitioner was not
given reasonable opportunity of being heard. The respondents have
not followed procedure as laid down in Civil Aviation Requirements,
Section 5, Series F, Part III. It was further argued that CAR provides
for conducting a repeat/second test immediately after 15 minutes of
the first test which was not conducted in the presence of a witness. In
the present case, CCTV footage was not procured or perused to
determine the questionability of the presence of witness.
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5.1 It was further argued that no control test was conducted to verify
the serviceability of the machine which put a question on the
credibility of the equipment and the report made by the doctor on
duty as mandated under the Civil Aviation Requirement Section 5
Series F Part III. The breath analyzer instrument was not calibrated
and results of the said test cannot be relied upon in the prevailing
health condition and medicine consumed by the petitioner on account
of ill health before the Scheduled flight which led to erroneous
findings on the breath analyzer instrument. The Petitioner was tested
BA positive for first time nearly a decade ago in the year 2011 on his
CPL (Commercial Pilot License) and the case of the petitioner was
not a case of repeat violation and his ATPL license does not bear any
endorsement/stamp of the past violation. The petitioner was not
communicated with the impugned order dated 21.2.2020 was
communicated by the respondents. It was argued that the present
petition be allowed.
6. The counsel for the respondent no. 1/DGCA advanced oral
arguments and submitted written synopsis. It was argued that
submitted that the petitioner did not avail remedy of second appeal to
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the Secretary under Rule 3B of the Aircraft Rules of 1937. It is
further argued that as per the BA report of respondent no. 3, the first
reading was recorded as 0.030% BAC at 11:31 hrs and thereafter, the
control test was conducted to verify the correctness of the reading of
the breath analyzer equipment at 11:36 hrs which established that the
breath analyzer equipment was in perfect working condition and
thereafter, the second BA test was recorded as 0.028 % BAC at 11:46
hrs. The counsel for the respondents no 1 and 2 countered contention
of the petitioner that the procedure of the breath analyzer
examination was not followed by arguing that the conduct of the
control test was verified by the witness, Ms. Aanchal Sharma which
clearly established that the instrument was properly functioning
without any malfunction. It was also argued that as per Clause 4.3.9
of the Procedure for Medical Examination of Aircraft Personnel for
Alcohol Consumption vide circular dated 04.08.2015, issued by the
respondent no. 1/DGCA, the petitioner has not consulted the
company doctor if he was unwell and was under medication.
6.1 The counsel for the respondents no 1 and 2 further argued that it
was the petitioner's second offence as the first offence was
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committed on 22.05.2011 when the petitioner was employed with Jet
Airways. Accordingly the petitioner's license was suspended for a
period of 03 years, being the petitioner's second offence as per
Clause 8.1(b). The counsel for the respondents no 1 and 2 also
refuted petitioner's contention that his first offence occurred when he
was holding a CPL license and now he holds an ATPL license by
arguing that the suspension order is against the individual and does
not dependent on the type of license. The counsel for the respondent
no.1/DGCA placed reliance upon Capt. S K Kapur V Union of
India & others, (W.P. (C) 7503/2018) and Capt. Amit Kumar
Yadav V Union of India & others, (W.P. (C) 13716/2018) and
argued that the petition be dismissed.
7. The counsel for the respondent no. 3 advanced oral arguments and
submitted written submissions. The counsel for the respondent no 3
stated that the respondent no. 3 is an Airline company offering
scheduled cargo and passenger services to many destinations around
the country and the respondent no. 3 does not have authority to issue
or withdraw the statutory permits or licenses required by the pilots. It
was argued that the subject matter of the present petition concerns the
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issuance, withdrawal, or restoration of the petitioner's ATPL license,
which is beyond the purview of the authority of the respondent no. 3.
7.1 The counsel for the respondent no 3 further argued that the
condition relating to the medical ailment stated by the petitioner was
neither apparent from the conduct of the petitioner nor any kind of
intimation or request was sent by him to the respondent no. 3. The
Clause 4.3.9 of the Procedure for Medical Examination of Aircraft
Personnel for Alcohol Consumption, the circular dated 04.08.2015
issued by the respondent no.1/DGCA makes it mandatory for the
crew members to consult the company doctor about the intake of any
alcoholic formulation or drug before undertaking the flying
assignment but the petitioner did not initiate such consultation. The
readings generated by the breath analyzer tests were done by
equipment that was perfectly fit for usage and the report of the same
also bears the signature of the petitioner. The petitioner's BA
readings were 0.030% BAC and 0.028% BAC respectively and it is
evident that the petitioner has violated the applicable norms. The
petitioner did not intimate about his alleged sickness or medication
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which was an afterthought and to mislead this court. It was argued
that the present petition be dismissed.
8. Before averting to facts of the case, it is necessary to mention the
relevant provisions dealing with situation subject matter of present
petition. Rule 24 of Aircraft Rules, 1937 deals with prohibition of
consumption of intoxicating and psychoactive substances. It reads as
under:-
24. Prohibition on consumption of intoxicating and
psychoactive substances
(1) No person acting as, or carried in aircraft for the
purpose of acting as pilot, commander, navigator, engineer,
cabin crew or other operating member of the crew thereof,
shall have taken or used any alcoholic drink, sedative,
narcotic or stimulant drug or preparation within twelve
hours of the commencement of the flight or take or use any
such preparation in the course of the flight, and no such
person shall, while so acting or carried, be in a state of
intoxication or have detectable blood alcohol whatsoever in
his breath, urine or blood alcohol analysis or in a state in
which by reason of his having taken any alcoholic, sedative,
narcotic or stimulant drug or preparation, his capacity so
to act is impaired, and no other person while in a state of
intoxication shall enter or be in aircraft or report for duty.
(2) No operator operating a domestic air transport service
in India shall serve any alcoholic drink on board such an
air transport service and no passenger traveling on such a
service shall consume any alcoholic drink while on board.
(3) The holders of licences shall not exercise the privileges
of their licences and related ratings while under the
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influence of any psychoactive substance which might
render them unable to safely and properly exercise the
privileges of the licences and ratings.
(4) The holders of licences shall not engage in problematic
use of substances.
8.1 The respondent no 1 has prescribed a zero tolerance policy with
regard to blood alcohol content as there shall be no detectable blood
alcohol in breath, urine or blood alcohol analysis of the crew,
therefore, the permissible limit of blood alcohol has been laid down
as 0.000. The respondent no 1 issued Civil Aviation Requirements
Section-5, Series-F Part-III ensure compliance to Rule 24 of Aircraft
Rules, 1937 in exercise of powers delegated under Rule 133A of
Aircraft Rules, 1937. The CIVIL AVIATION REQUIREMENTS
SECTION 5 - AIR SAFETY SERIES F PART III ISSUE III dated
01.08.2018 deals with procedure to be followed for the breath
analyser examination for crew members and aircraft maintenance
personnel for consumption of alcohol and actions to be taken by the
operators. Para 4.3 provides that the operators/crew
members/maintenance personnel shall ensure that there is no
contravention of Rule 24 of the Aircraft Rules, 1937 by conduct of
breath analyzer examination before operation of flights in India as
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well as outside India. Para 4.3.1 provides that each flight crew
member and cabin crew member shall be subjected to pre-flight
breath-analyzer examination at first departure airport during flight
duty period. Para 4.3.9 provides that no crew member shall consume
any drug/formulation or use any substance mouthwash/tooth gel
which has alcoholic content. It further provides that any crew
member who is undergoing such medication shall consult the
company doctor before undertaking flying assignment. Para 5.4
provides that the breath-analyzer equipment shall be calibrated after
10,000 blows/six months from an agency having ISO certification to
undertake the calibration activity. It further provides that it shall be
the responsibility of the operator to ensure continued serviceability of
the breath-analyzer equipment and maintain such record. Para 6.3
provides that before such test, the Doctor/Paramedics/Emergency
Medical Technicians (EMT) shall obtain a reading of 0.00 on the
instrument and the Doctor/Paramedics/EMT shall also carry out a
control test on daily basis. Para 8 deals with enforcement action if
pre-flight breath-analyzer tested positive/missed test. Para 8.1(b)
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provides 03 years suspension of licence in case of second time breath
analyser test is positive.
9. The Coordinate Bench of this court in Capt. Rahul Panchal V
Air India Ltd and another, W.P.(C) 6604/2021 decided on
15.07.2021 had occasion to deal with the termination letter wherein it
was mentioned that the petitioner was found BA positive on the
conduct of breath analyzer test on April 22, 2021 and as such the
petitioner has consumed alcohol on the said date when the petitioner
was scheduled to operate Flight No AI-401. The petition was
dismissed with observation that the petitioner being a pilot was
operating the plane carrying passengers, who place their trust on the
pilot, the conduct being serious, in the facts of this case, the
impugned order terminating the contract /employment of the
petitioner cannot be interfered with.
9.1 The Madras High Court in Capt. Monish Chandran V The
Government of India and others, W.P.(C) 7128/2018 in situation
where the petitioner possessing ATPL license was found BA positive
and was suspended observed as under:-
9. A perusal of the aforesaid would go to show that a person
is not supposed to be in the influence of alcoholic drink,
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sedative, narcotic or stimulant drug or preparation while
conducting himself as a Pilot, Commander, Navigator,
Engineer, Cabin Crew or other acting member of the Crew
in an aircraft inasmuch as the same is prejudicial for the
safety of the persons traveling in an Aircraft. To prevent
such person operating the Aircraft a pre flight breath
analyser test and also a post flight breath analyser tests are
conducted as per the requirement of the CAR. Hence, a
person is supposed to undergo pre-flight analyzer test
before boarding. If any of the aforesaid persons test
positive in pre-flight breath analyser test he is prevented
from discharging his duty and thereby the dangers that
may occur to the passengers for discharge of such duty in
the influence of alcohol and the intoxicant drugs is avoided.
The punishment therefore provided for aforesaid persons
on being test positive during pre-flight test is lenient than a
person who test positive on post flight medical examination.
However for 1st and 2nd repeat violation found in pre
flight breath analyser more severe punishment are
provided as a crew member person appears to have
repeated the violation of Requirements of rule 24 (1) of the
rules in spite of earlier being tested positive. So far as the
pre-flight analyser is concerned on the first occasion, if
some one tested positive, his license/approval is required to
be suspended for three months as provided in para 8.1 of
the CAR and for first repeat violation of the same his
license is to be suspended for three years and for second
repeat violation, even though, it is preflight positive test his
license has to be cancelled.
9.2 The Coordinate Bench of this court in Capt. S. K. Kapur V
Union of India & others, W.P.(C) 7503/2018 decided on
23.07.2018 and also referred by the counsel for the respondents no 1
and 2 dismissed the petition filed to impugn suspension for a period
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 25
of three years in terms of Paragraph 8.2 of the Civil Aviation
Requirements issued on 04.08.2015 as the petitioner had tested
positive for alcohol in a Pre-flight Breath Analyzer Test conducted
on 07.04.2017 at the Delhi Airport.
10. Ms. Anjana Gosain, Counsel for the respondents no 1 and 2
argued that the petitioner did not avail remedy i.e. second appeal to
the Secretary under Rule 3B of the Aircraft Rules, 1937. The
respondents no 1 and 2 in counter affidavit also stated that the
petition is liable to be dismissed as the petitioner has not availed the
statutory alternate remedy of second appeal as provided under Rule
3B of the Aircraft Rules, 1937 to challenge the impugned order dated
21.02.2020 passed by the respondent no 2. The availability of an
adequate and efficacious alternative legal remedy may be a ground to
decline to exercise its writ jurisdiction but the said principle does not
apply to the enforcement of fundamental rights. The Supreme Court
in K.K. Kochuni V Sate of Madras, AIR 1959 SC 725 observed
that mere existence of an adequate alternative legal remedy cannot be
a good and sufficient ground for throwing out a petition for judicial
review. The remedy provided in Article 226 of the Constitution is a
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 26
discretionary relief. The Supreme Court in Union of India V T.R.
Verma, AIR 1957 SC 882 observed that when an alternative and
equally efficacious remedy is open to the litigant, he is required to
pursue that remedy and not to invoke special jurisdiction of the High
Court to issue a prerogative writ. It was further observed that mere
existence of another remedy does not affect the jurisdiction of the
court to issue a writ.
10.1 The rule of exhaustion of alternative remedy is not absolute and
flexibility is practised by the court depending upon facts and
circumstances of the case. The existence of an alternative remedy is
not regarded as a bar to issue a writ and this is only a self-imposed
restriction by the courts on themselves. The petitioner in the present
case pleaded violation of his fundamental rights. If the petitioner did
not avail statutory remedy by filing the second appeal under Rule 3B
of the Aircraft Rules, 1937, it doesn't mean that the present writ is
not maintainable. The argument advanced by Ms. Anjana Gosain is
without much legal force.
11. The arguments advanced by the respective counsels for the
petitioner and the respondents are considered in right perspective.
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 27
The counsel for the petitioner argued that CAR provides for
conducting a repeat/second test immediately after 15 minutes of First
Test which was not conducted in the presence of a witness and in the
present case, CCTV footage was not procured or perused to
determine the questionability of the presence of witness. The
respective counsels for the respondents argued that the first reading
was recorded as 0.030% BAC at 11:31 hrs followed by control test
which was conducted at 11:36 hrs to verify the correctness of the
reading of the breath analyzer equipment which established that the
breath analyzer equipment was in perfect working condition and
thereafter, the second BA test was recorded as 0.028 % BAC at 11:46
hrs. It was also argued that the conduct of the control test was
verified by the witness Ms. Aanchal Sharma reflecting proper
functioning of the instrument. It is apparent that the petitioner had
undergone a pre-flight Breath Analyzer test as per Civil Aviation
Requirements and he was tested BA positive with readings as 0.030%
BAC at 11:30 am and second test was carried out after the control
test with a reading of 0.00% at 11.35 Hrs and indicated a reading of
0.028% BAC at 11.45 Hrs. It is also apparent that the breath
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 28
analyzer equipment was in perfect working condition as reflected
from Calibration Certificate dated 09.10.2019 issued by Indu's
Creations which is submitted by the respondent no 3 along with
counter affidavit and the control test was also verified by a witness
namely, Ms. Aanchal Sharma as reflected from Incident Report (BA
Positive). The respondent no 3 also submitted CCTV footage of
breath-analyzer test of the petitioner along with counter affidavit.
Accordingly, arguments advanced by the counsel for petitioner that a
repeat/second test was not conducted immediately after 15 minutes of
First Test in the presence of a witness and CCTV footage was not
procured or perused to determine the questionability of the presence
of witness are without any legal and factual force.
11.1 The counsel for the petitioner argued that the case of the
petitioner was not a case of repeat violation as the petitioner was
tested BA positive for the first time nearly a decade ago in the
year 2011 on his CPL (Commercial Pilot License) while ATPL
license of the petitioner does not bear any endorsement/stamp of
the past violation. The respective counsels for the respondents
argued that the petitioner has committed first offence on
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 29
22.05.2011 when the petitioner was employed with Jet Airways
and offence subject matter of the present petition is second
offence committed by the petitioner and accordingly the
petitioner's license was suspended for a period of 03 years being
the second offence committed by the him as per Para 8.1(b) of the
CAR. The respective counsels for the respondents further argued
that the suspension order is against the individual and does not
dependent on the type of license. There is no force in argument
advanced on behalf of the petitioner that the petitioner has not
committed repeated violation of CAR as the petitioner was
holding Commercial Pilot Licence at time of first default i.e.
22.03.2011 while the petitioner was holding ATPL on 26.01.2020.
It is safe to hold that contravention of CAR in testing BA positive
during Breath Analyzer is against the individual and is not related
to the category of licence and accordingly, the arguments
advanced by the counsel for the petitioner is meritless rather
arguments advanced by the counsel for the respondents no 1 and 2
deserve to be accepted.
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 30
11.2 The counsel for the petitioner also argued that the respondent
no 2 passed the impugned order dated 21.02.2020 and the
respondent no 1 passed the impugned order dated 24.09.2020 in
violation of the principles of natural justice as the petitioner was
not given reasonable opportunity of being heard. It was also
argued that the impugned orders dated 21.02.2020 and 24.09.2020
are illegal, arbitrary, unreasonable, unconstitutional and are in
violation of Articles 14, 16 and 21 of the Constitution of India and
the principles of natural justice.
11.2.1 The principles of natural justice involve a procedural
requirement of fairness and have become an essential part of any
system of administrative justice. Natural Justice is considered to be
part of rule of law. The Supreme Court in Sangram Singh V
Election Tribunal Kotah, AIR 1955 SC 425 observed that none
should not be condemned unheard and decision should not be
reached behind the back. The Supreme Court in Maneka Gandhi V
Union of India, AIR 1978 SC 597 emphasized that natural justice is
an essential element of the procedure established by law and state
action must be right, just and fair and not arbitrary, fanciful and
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 31
oppressive. It was held that Article 14 of the Constitution strikes at
arbitrariness of state action and ensures fairness and equality of
treatment. It was also observed in Union of India V Tulsi Ram
Patel, AIR 1985 SC 1416 that Article 14 is not creator of principles
of natural justice but it is constitutional guardian of Article 14. The
Supreme Court in Mohinder Singh V Chief Election Commission,
AIR 1978 SC 851 observed that the principles of natural justice are
bones of a healthy government. The Supreme Court in Indian Oil
Corporation Limited and others V Shashi Prabha Shukla and
another, (2018) 12 SCC 85 observed as under:-
33. (a) public authority in its dealings has to be fair,
objective, non arbitrary, transparent and non
discriminatory. The discretion vested in such an authority,
which is a concomitant of its power is coupled with duty
and can never be unregulated or unbridled. Any decision or
action contrary to these functional precepts would be at the
pain of invalidation thereof. The State and its
instrumentalities, be it a public authority, either as an
individual or a collective has to essentially abide by this
inalienable and non negotiable prescriptions and cannot act
in breach of the trust reposed by the polity and on
extraneous considerations. In exercise of uncontrolled
discretion and power, it cannot resort to any act to fritter,
squander and emasculate any public property, be .it by way
of State largesse or contracts, etc. Such outrages would
clearly be unconstitutional and extinctive of the rule of law
which forms the bedrock of the constitutional order.
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 32
11.2.2 The petitioner was rostered to operate the flight bearing no
I5 578 from Delhi to Kolkata (DEL-CCU) on 26.01.2020. The
petitioner had undergone a pre-flight Breath Analyzer test as per
Civil Aviation Requirements and was tested BA positive with
readings as 0.030% BAC at 11:30 Hrs and second test was carried
out after the control test with a reading of 0.00% at 11.35 Hrs and
indicated a reading of 0.028% at 11.45 Hrs. Thereafter, the
petitioner informed the respondent no 3 vide email dated
27.01.2020 about consumption of medication namely Atrovastatin
Tb IP 20mg, Dr Johns J2 tooth ache drops along with Codeine
phosphate syrup on the night of 25.01.2020 as fallen sick on
19.01.2020. The respondent no 3 vide email dated 27.01.2020
disagreed with medical condition of the petitioner and stated that
the medicines consumed by the petitioner were not advised by the
company doctor rather the petitioner also did not plead that he
took medicines as per advice of company doctor in compliance of
Para 4.3.9 of CAR and this is also argued on behalf of the counsel
for the respondents no 1 and 2. The petitioner before passing order
dated 21.02.2020 as such has availed a fair and reasonable
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 33
opportunity to explain the cause of his BA positive test to the
respondent no 3 and also submitted medical prescription. The
respondent no 2 vide the impugned order dated 21.02.2020
suspended the license in public interest for a period of 03 years on
the ground of repeat violation of CAR. The perusal of the
impugned order dated 21.02.2020 reflects that the respondent no 2
while passing impugned order dated 21.02.2020 had taken note
that the petitioner who was scheduled to operate flight no. I5-578
(DEL-CCU) on 26.01.2020 was tested positive for alcohol during
BA (Breath Analyzer) examination in contravention of CAR and
also about past history of the petitioner being tested positive
during BA test on 22.03.2011. The respondent no 2 has passed the
impugned order dated 21.02.2020 on basis of relevant facts
including past history of the petitioner. The respondent no 2 sent
the impugned order dated 21.02.2020 to Chief of Flight Safety of
the respondent no.3 by email dated 26.02.2020 and the respondent
no 3 vide email dated 01.04.2020 terminated services of the
petitioner. The petitioner, thereafter, submitted a representation
dated 08.04.2020 to the respondent no.3 about his suspension
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 34
which was replied by the respondent no 3 rejecting claim of the
petitioner. The petitioner preferred a statutory appeal on
15.06.2020 under section 3B, Part I of the Aircraft Rules, 1937
before the respondent no.1/DGCA to challenge the impugned
order dated 21.02.2020 passed by the respondent no.2 which was
dismissed by the respondent no.1/DGCA vide the impugned order
dated 24.09.2020. The perusal of the impugned order dated
24.09.2020 reflects that the petitioner was given personal hearing
on 29.07.2020 and the respondent no 1 while passing the
impugned order dated 24.09.2020 has considered all relevant facts
pertaining to the petitioner. The respondent no 1 at time of passing
impugned order dated 24.09.2020 has taken into consideration that
the case of the petitioner falls within provision of Para 8.1 (b) of
the CAR Section 5, Series-F, Part III, Issue III, Rev 01 dated
01.08.2018; the control test to verify the serviceability and
correctness of the breath-analyzer was carried out at 11.36 Hrs and
reading was 0.000 which established that breath-analyzer
equipment was serviceable and working normal and process of
breath-analyzer test of the petitioner was recorded on CCTV
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camera; and Para 4.3.9 of CAR Section 5, Series-F, Part-III, Rev
01 dated 01.08.2018 prohibits crew member from consuming any
drug/formulation or use any substance mouthwash/tooth gel which
has alcoholic content and if any crew member is undergoing such
medication, the crew is required to consult the company doctor
before undertaking flying assignment. It is established that the
respondent no 2 passed the impugned order dated 21.02.2020 and
the respondent no 1 passed the impugned order dated 24.09.2020
on relevant consideration and principles of natural justice were
fairly followed. The arguments advanced by the counsel for the
petitioner are meritless.
12. It is well apparent that the petitioner was rostered to operate
the flight bearing no. I5 578 from Delhi to Kolkata (DEL-CCU)
on 26.01.2020. The petitioner tested BA positive during pre-flight
Breath Analyzer test as per Civil Aviation Requirements Section-
5, Series-F, Part-III, Issue-III, Rev 01 with readings of 0.030%
BAC at 11:30 am and second test was carried out after the control
test with a reading of 0.00% at 11.35 Hrs and indicated a reading
of 0.028% at 11.45 Hrs. The breath analyzer equipment was in
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 36
perfect working condition as reflected from Calibration Certificate
dated 09.10.2019 and the control test was verified by a witness
Ms. Aanchal Sharma. The petitioner on previous occasion when
serving with Jet Airways was also found BA positive for alcohol
during pre-flight Breath Analyzer examination on 22.05.2011. The
petitioner informed the respondent no 3 vide email dated
27.01.2020 about consumption of medication namely Atrovastatin
Tb IP 20mg, Dr Johns J2 tooth ache drops along with Codeine
phosphate syrup in night of 25.01.2020 as fallen sick on
19.01.2020 but the respondent no 3 vide email dated 27.01.2020
informed the petitioner that the medicines consumed by the
petitioner were not advised by the company doctor as per Para
4.3.9 of CAR. The respondent no 2 vide the impugned order dated
21.02.2020 suspended license for a period of 3 years on the
ground of repeat violation of CAR provisions and has also taken
note about past history of the petitioner being tested positive
during BA test on 22.03.2011. The petitioner has availed fair
opportunity to represent his case before the respondent no 3 to
explain cause of being BA positive. The respondent no 2 sent the
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 37
impugned order dated 21.02.2020 to Chief of Flight Safety of the
respondent no.3 by email dated 26.02.2020. The respondent no 3
vide email dated 01.04.2020 terminated the services of the
petitioner. The petitioner submitted a representation dated
08.04.2020 to the respondent no.3 about his suspension which was
replied by the respondent no 3 whereby claim of the petitioner was
rejected. The petitioner preferred a statutory appeal on 15.06.2020
under section 3B, Part I of the Aircraft Rules, 1937 before the
respondent no.1/DGCA to challenge the impugned order dated
21.02.2020 passed by the respondent no.2 which was dismissed by
the respondent no.1/DGCA vide the impugned order dated
24.09.2020. The petitioner was given personal hearing on
29.07.2020 by the respondent no 1. The respondents have
followed procedure as laid down in Civil Aviation Requirements,
Section 5, Series F, Part III.
12.1 International Civil Aviation Organization (ICAO) which is an
international body lays down regulations and recommendations
relating to civil aviation that every contracting state (including India)
is bound to follow. ICAO lays down Standards and Recommended
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 38
Practices (SARPs) and Para 1.2.7 of Annex 1 of SARPs prohibits the
use of psychoactive substances by license holders. India enacted Rule
24 of the Aircraft Rules, 1937 in tandem with the ICAO
recommendation. The respondent no 1 is duty bound to ensure
compliance to Rule 24 of Aircraft Rules, 1937 and Civil Aviation
Requirements Section-5, Series-F Part-III. The respondent no
1/DGCA has mandated zero tolerance policy with regard to blood
alcohol content as there should not be detectable blood alcohol in
breath, urine or blood alcohol analysis of the crew and the
permissible limit of blood alcohol has been laid down as 0.000 in the
CAR. The petitioner at time of flight operation as a pilot was not
supposed to be under the influence of alcoholic drink, sedative or
stimulant drug which may pose serious threat to the safety of the
passengers traveling in an Aircraft. Due to this reason pre-flight
breath analyzer test is conducted as per CAR. The petitioner also
underwent pre-flight breath analyzer test and tested positive and it
was second occasion when the petitioner tested positive. The
respondent no 2 acted as per Para 8.1(b) of CAR. The safety of the
passengers can never be compromised or diluted and unnecessary
Signing Date:08.07.2024 W.P(C) 8826/2020 Page 39
leniency to erring pilot shall be prejudicial to the safety of the
passengers.
13. The petitioner is not entitled for relief as prayed for and there is
no merit in the present petition. The present petition is accordingly
dismissed along with pending application, if any.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JULY 05, 2024
N/AK/ABK
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