Delhi High Court
Captain Amit Tyagi vs Union Of India And Ors. on 12 July, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: March 20, 2024
Decided on: July 12, 2024
+ W.P.(C) 6427/2019
CAPTAIN AMIT TYAGI
..... Petitioner
Through: Mr. Sandeep Kumar,
Mr. Gagan Kumar and
Mr. Suraj Kumar, Advocates
V
UNION OF INDIA AND OTHERS
..... Respondents
Through: Ms. Anjana Gosain and
Ms. Nippun Sharma,
Advocates
Ms. Rukhmini Bobde,
Mr. Amit Mishra,
Mr. Azeem Samual,
Mr. Akhil Kulshrestha,
Mr. Amlaar and
Ms. Yashika Nagpal,
Advocates for R-3
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present writ petition is filed under Article 226 of the
Constitution for quashing the order dated 14.06.2018 (hereinafter
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referred to as "the impugned order dated 14.06.2018") passed by
the Joint Director General, Directorate General of Civil Aviation
(hereinafter referred to as "the respondent no. 2") along with other
consequential orders dated 03.08.2018, 13.12.2018 and 09.04.2019.
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. 4236 and was working with Air
India Ltd./respondent no.3 (hereinafter referred to as "the
respondent no.3") for the past 13 years. The petitioner is claimed to
have an experience of airline flying for nearly 8500 hours and has
been commended by the airline management on several occasions.
The petitioner was suffering from hair loss and melasma and
approached the respondent no 3 for treatment but such facility was
not available with the respondent no 3 and the company doctor
advised the petitioner to take treatment for hair fall from outside. The
petitioner on 06.04.2018 started to take treatment from Omorfia,
Aesthetic Clinic. The petitioner during treatment did not orally
consume any medicine and the treatment including serum
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administration or application of ointments was always done at the
clinic.
2.1 The petitioner being commercial pilot with the respondent no 3
was operating flight as per schedule/roster allotted to him. The
petitioner on 12.05.2018 did not have any scheduled flight and took
an appointment at the clinic for treatment. The petitioner was
requested to operate flight no AI-104 from Delhi to Hyderabad on
unscheduled pull-out. The petitioner first decided to go for aesthetic
treatment as per his appointment and thereafter proceeded towards
the airport. The petitioner after reaching airport was subjected to
regular Pre Flight Medical Check (PFMC) and tested positive for
alcohol during the Pre-flight Medical Examination. The test was
conducted at 12:51 pm through an instrument ALCOSENSOR-IV
Serial No. 096105 and the Breath Analyzer Test came positive with a
reading of 0.020% at 12:51 pm due to the presence of ointments and
serums for the ongoing treatment of hair loss and melasma. The
second test was conducted at 13:12 pm on the same instrument and
the Breath Analyzer Test again came positive with a reading of
0.016%. The petitioner was immediately declared 'Unfit to Fly' and
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was asked to go off duty. The petitioner on 12.05.2018 at 15:05 pm
i.e. within 2 hours of Breath Analyzer Test underwent Blood and
Urine Serum Tests at NABL approved laboratory, SRL Diagnostics
and results of the tests were negative for alcohol. The petitioner on
22.05.2018 appealed to the respondent no 2 to consider the probable
reasons for false results of BA instrument and showed the entire
documents with respect to the treatment of hair loss and melasma and
the results of the Urine test and Blood tests undergone at SRL
Diagnostics.
2.2 It was mentioned in the impugned order dated 14.06.2018 that the
petitioner also tested BA positive on 10.07.2013 at Mumbai while he
was scheduled to operate flight no. AI-633 and the present incident
was his second time for testing BA positive. The Joint Director
General, Directorate General of Civil Aviation passed the impugned
order dated 14.06.2018 bearing no. AP-1/PFMC/2018-AS wherein
observed that the petitioner had violated the provision contained in
the Civil Aviation Requirements (hereinafter referred to as "CAR")
Section-5, Series-F, Part-III, Issue-III dated 04.08.2015 and
suspended the pilot license (ATPL no. 4236) of the petitioner for a
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period of three years with effect from 12.05.2018. The petitioner
alleged that impugned order dated 14.06.2018 was passed without
giving any hearing to the petitioner. The relevant portion of the
impugned order dated 14.06.2018 is reproduced as under: -
Whereas a routine preflight medical examination for
detection of consumption of alcohol was carried out on
12.05.2018 at Delhi Airport.
2. And, whereas during preflight medical check, Capt. Amit
Tyagi, ATPL No.4236 belonging to M/s Air India scheduled
to operate flight no. AI-104 (DEL-HYD) was tested positive
BA (Breath Analyzer) which is in contravention to the
provision contained in CAR Section- 5, Series-F, Part-III,
Issue-III dated 04th August 2015.
3. Capt. Amit Tyagi, ATPL No.4236 was earlier tested
positive BA (Breath Analyzer) on 10.07.2013 at Mumbai
while scheduled to operate AI-633.This is his second time
BA positive case.
4. Now in exercise of the powers delegated 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 (E) of October 1994 the undersigned hereby
suspends in public interest, the privileges of the pilot license
held by Capt. Amit Tyagi, ATPL No.4236,for a period of
three years from the date he was tested BA positive and
same shall be endorsed on his pilot license.
2.3 The respondent no 2 wrote an email to the respondent no. 3
enquiring regarding any provision with the M/s Air India Limited for
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treatment of Hair loss and melasma and the respondent no 3 vide
response dated 12.07.2018 stated that the airline company did not
have any provision or facility for said treatment. The respondent no 2
vide order dated 03.08.2018 bearing No. AP-1/PFMC/13/2018-AS
dismissed the appeal filed by the petitioner. The petitioner preferred
an RTI application bearing reference no. CA/RTI/Appeal/4401 dated
18.08.2018 regarding ALCOSENSOR IV no. 096105, which was
duly replied by the respondent no.3 under the signatures of Dr.
Ashish Bhagat, Sr. AGM (Medical) & CPIO Medical Department
with the relevant documents.
2.4 The respondent no.2 vide letter dated 13.12.2018 communicated
to the petitioner that there is no provision for second appeal with the
respondent no.2 as per Rule 3B of the Aircraft Rules, 1937 and an
appeal may be preferred to the respondent no.1. The petitioner
preferred an appeal to the respondent no.1 on 10.01.2019 against the
impugned order dated 14.06.2018 and the consequential order dated
13.12.2018 which was dismissed on 09.04.2019 by observing that the
petitioner was in violation of the CAR, Series F, Part III, Issue III,
Clause 4.3.9 dated 04.08.2015 which prohibits the crew members
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from using any substance which has contents of alcohol. The
contention of the petitioner with regard to the calibration of the BA
Test equipment and the medication of the petitioner was not accepted
vide order dated 09.04.2019. It was recorded in the order dated
09.04.2019 that BA equipment was in a calibrated and serviceable
state and the procedure of conduct of BA test was as per the
prevailing provisions of the CAR and the control test was 0.000
which established that both the readings i.e. 0.020% BAC and
0.016% BAC of the BA Test of the petitioner were positive for
detection of alcohol in breath sample. It is also noted that same
instrument was used for conducting BA test on other crew members
and results were negative for all members. Accordingly, the three
years suspension was upheld in terms of the existing CAR of
04.08.2015.
2.5 The petitioner alleged that the respondent no 2 ignored past
precedents of Jyoti Janga and Captain Ritesh Matankar. The statutory
appeal of the petitioner was dismissed in a mechanical manner by
adopting a narrow, restrictive and perverse view of the CAR without
appreciating the facts and circumstances and legal precedents cited
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by the petitioner. The petitioner being aggrieved by the impugned
order dated 14.06.2018 along with other consequential orders dated
03.08.2018, 13.12.2018 and 09.04.2019 filed the present writ petition
and made the following prayers: -
(a) Issue a writ of certiorari/mandamus or any other
appropriate writ, order or direction calling for the records
and quashing the order dated 9.04.2019 passed by
respondent No.1;
b) Issue a writ of certiorari/mandamus or any other
appropriate writ, order or direction calling for the records
and quashing the orders dated 14.06.2018, 03.08.2018, and
13.12.2018 passed by respondent No.2;
(c) Direct the respondent No.2 to issue appropriate
approvals, permission, letter, instruction which would
permit the petitioner for flying duty;
(d) Direct damages and cost to be awarded to the petitioner
for his loss of livelihood during the entire period of his
enforced suspension: and
(e) Pass any other order or directions, as deemed fit and
proper in the facts and circumstances of the case in favour
of the Petitioner and against the Respondents.
3. The respondent no.2/DGCA filed counter affidavit in response to
the present petition wherein it was stated that the International Civil
Aviation Organization (ICAO) being international body established
regulations and recommendations that each contracting State must
adhere with regard to civil aviation. ICAO sets Standards and
Recommended Practices (SARPs) covering various aspects of civil
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aviation. Annex 1 to the SARPs of the Convention on International
Civil Aviation defines psychoactive substances which include
alcohol, opioids, cannabinoids, sedatives and hypnotics, cocaine,
other psycho stimulants, hallucinogens, and volatile solvents,
excluding coffee and tobacco. The Paragraph 1.2.7 of Annex 1
prohibits license holders from using psychoactive substances. The
contracting States including India are obligated to enact legislation to
enforce these ICAO standards. Consequently, Rule 24 of the Aircraft
Rules, 1937 was enacted in alignment with ICAO recommendations.
3.1 The respondent no 2 to ensure compliance with Rule 24 of the
Aircraft Rules, 1937 issued CAR Section-5, Series-F Part-III under
the authority delegated by Rule 133A of the Aircraft Rules, 1937.
The Directorate General of Civil Aviation (DGCA)/respondent no 2
has adopted a zero-tolerance policy regarding blood alcohol content
and accordingly CAR stipulates a blood alcohol content limit of
0.000 and there shall not be detectable blood alcohol in breath, urine
or blood alcohol analysis of the crew. The operators, crew members,
and maintenance personnel are responsible for ensuring compliance
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with Rule 24 of the Aircraft Rules, 1937 by conducting BA test prior
to flight operations in India.
3.2 The petitioner was tested Breath-Analyzer positive for the second
time during pre-flight medical on 12.05.2018 at Delhi while
scheduled to operate flight no. AI-104 and his BA readings were
0.020 BAC and 0.016 BAC respectively. The petitioner had earlier
tested BA positive on 10.07.2013 at Mumbai while scheduled to
operate flight no. AI - 633 (BOM-BHO-DEL) and accordingly, the
petitioner's license was suspended for a period of three months being
the first offence. The privileges of pilot license of the petitioner were
suspended for a period of three years vide order no. AP-
l/PFMG/2018-AS dated 14.06.2018 being the second offence. As per
Para 4.3.7 of CAR, Section 5, Series F, Part-III, Issue-III no crew
member shall consume any drug/formulation or use any substance
mouthwash/tooth gel which has alcoholic content and any crew
member who is undergoing such medication shall consult the
company doctor before undertaking flying assignment. The petitioner
in statement dated 22.06.2018 submitted that he consulted company
doctor on 05.04.2018 who informed that the treatment for hair fall
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and pigmentation is not covered by the company. The petitioner
started treatment of his own from Omorfia Aesthetic clinic from
06.04.2018 and had no correspondence/consultation with company
doctor regarding medication and its effects thereof. CAR only
prescribes the procedure for checking alcohol consumption by
breath-analyzer test and samples of blood, urine, etc. required for
detailed chemical analysis only in case of accident as per the proviso
of para 10 of aforesaid CAR and as such blood and urine test
undergone by the petitioner has no relevance and validity. The
breath-analyzer equipment was in calibrated state and procedure as
per CAR Section-5, Series-F Part-III, Issue-III was followed for
conduct of breath-analyzer test of petitioner. The respondent no
2/DGCA has uniformly applied CAR provisions in all cases of
Breath-Analyzer positive cases. The petitioner tested BA positive for
the first time on 06.11.2007 before issue of CAR in Nov 2009 and his
company had taken action against him, thereafter the petitioner tested
BA positive on 10.07.2013 and on 12.05.2018. The privileges of
license of the petitioner were suspended for a period of three years as
he had tested Breath-Analyzer positive twice after issue of aforesaid
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CAR. The respondent no 2/DGCA accorded personal hearing to the
petitioner on 04.04.2019 and after evaluating the facts and his
submission, the appeal was dismissed being devoid of merit. The
petitioner was afforded personal hearing in accordance with the
provisions of the Aircraft Act, 1934, Aircraft Rules, 1937, and
relevant CAR provisions ensuring adherence to principles of natural
justice. The present petition is liable to be dismissed being devoid of
merit.
4. The respondent no.3/Air India Ltd. filed counter affidavit in
response to the present petition wherein stated that the impugned
order is the outcome of a policy decision wherein the petitioner does
not have the fundamental right to fly an aircraft and courts have
consistently refrained from interfering in such policy decisions unless
it violates the constitutional law. The Breath-Analyzer test is
internationally recognised as an essential procedure by the aviation
fraternity to ensure the safety of public, passengers and aircraft and
the respondent no.3/Air India Ltd. has acted in accordance with the
provisions of CAR which lays down the mandatory procedure of
Breath-Analyzer examination to be followed to check for
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consumption of alcohol and actions to be taken by the Operator. The
respondent no.3/Air India Ltd. being operator is bound to follow the
procedures and instructions provided in CAR. The Breath-Analyzer
test to check the blood alcohol level is an accurate means and is being
used by the aviation fraternity internationally.
4.1 The petitioner was an employee of the respondent no.3 as a Pilot.
The license of the petitioner was not suspended arbitrarily and
unjustly on the basis of BA positive result without appreciating that
the petitioner was undergoing a hair fall therapy through an Aesthetic
clinic and the Aesthetician had administered certain serums in the
scalp which contain alcohol and derivatives of alcohol. The petitioner
was aware that he is not supposed to use any drug
formulation/substance/products containing alcohol before
undertaking a flight and contention of the petitioner that he was
administered certain serums which contained alcohol was a mere
afterthought.
4.2 The petitioner as per his own submission had consulted the
Company doctor on 05.04.2018 who informed the petitioner that the
treatment for hair fall and pigmentation was not covered by the
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company. The petitioner started taking treatment and did not inform
the company doctor of the respondent no.3/Air India Ltd. regarding
any prescribed medication and its effects. The petitioner on earlier
occasion was found alcohol positive on 10.07.2013 at Mumbai while
scheduled to operate flight no. AI-633 (BOM-BHO-DEL) and the
license of the petitioner was suspended for a period of three months
being the first offence. The petitioner tested BA positive for the first
time on 06.11.2007 before the issuance of CAR in November 2009
and twice on 10.07.2013 and 12.05.2018 after issuance of CAR. The
respondent no.3/Air India Ltd. vide e-mail dated 12.07.2018
addressed to the Flight Safety Department had informed the
petitioner that there is no provision of cosmetic treatment including
the hair fall and scalp baldness in Air India Medical Department
policy. The petitioner despite knowing that he had to operate a flight
knowingly undertook the alleged treatment which was in violation of
proviso contained in Para 4.3.7 of CAR, Section 5, Series F, Part-III,
Issue-III. The privileges of license of the petitioner were suspended
for a period of three years as per the provisions of CAR as the
petitioner tested BA positive on second occasion. There was no issue
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with the Breath Analyzer device and the procedure which was
followed was in accordance with law. The equipment used for testing
the petitioner was calibrated from time to time as per the requirement
of CAR. The instrument used for screening (ALCOSENSOR-IV) has
been certified and complies with the requirements of the ISO
9001:2015 and a Certificate No.QM1368 dated 15.10.2014 which
was valid till 14.10.2020 issued by SHAMKRIS GLOBAL. The daily
control test as per CAR Para 6.3 is carried out by duty doctor for
checking the serviceability of the BA equipment by getting reading
as 0.000. The Breath analyzer equipment was calibrated on
25.01.2018 and calibration was valid up to 23.07.2018. The control
test was carried out after first BA test of the petitioner and reading
was 0.000 which established the serviceability of the BA equipment
and as such no prejudice is caused to the petitioner. There is no
procedure laid down in CAR for carrying blood and urine test in case
a crew tests BA positive during routine Pre-flight medical. Therefore,
the petitioner undergoing blood/urine test after being tested positive
in pre-flight Breath-Analyzer test is not relevant. The license of the
petitioner was correctly suspended for three years as per the
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provisions of CAR since the petitioner was found BA positive twice.
The present petition be dismissed with cost being devoid of merit.
5. The petitioner filed rejoinders to respective counter affidavit of the
respondents no 1 and 2 and the respondent no 3 wherein reiterated
contents of the petition.
5.1 The petitioner in rejoinder to counter affidavit of the respondent
no 3 stated that the suspension of his license was unfair and arbitrary
as he brought on record all the relevant documents proving his
innocence that he neither consumed any drugs/formulation nor did he
use any substance/mouth wash/tooth gel/alcoholic content. The
petitioner was not aware that the hair treatment serum administered
to him had alcoholic content. BA equipment is not a foolproof
method for blood alcohol detection and device used by the
respondent no. 3/Air India Ltd. was not reliable method of testing as
widely accepted throughout the scientific community and the global
aviation experts including the ICAO and having a variable result
reading factor i.e. a threshold of 0.020% to 0.040% which is provided
for by most aviation regulators in the developed countries. There can
be a false detection in the breath alcohol test due to extraneous
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circumstances like as in the case of the petitioner using a hair serum
treatment and stated CAR does not prohibit consideration of blood
and urine test undergone outside the purview of the Airline. There
was false detection of blood alcohol content through BA equipment
on account of its faulty calibration. The impugned order dated
09.04.2019 and consequent orders dated 14.06.2018, 03.08.2018 and
13.12.2018 were passed by the respondents whereby suspending the
Airline Transport Pilot License ("ATPL") of the petitioner for a
period of three years and dismissing the statutory appeal of the
petitioner filed under Rule 3(B) of the Aircraft Rules, 1937 without
appreciating the civil procedural and serious technical lapses and
disregarding the facts and petitioner's explanation that the Breath
Alcohol (BA) reading of 0.020% and 0.016% was not on account of
consumption of alcohol but due to an on-going hair treatment which
he was taking. The Breath Analyzer instrument i.e. ALCOSENSOR
IV used for the test was not calibrated as per the Manufacturer's
Manual as mandated by the CAR. The petitioner prayed that the
petition be allowed.
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6. The counsel for the petitioner advanced oral arguments and
submitted written synopsis. The counsel for the petitioner argued that
section IV of the Operators Manual ALCOSENSOR-IV provides for
conducting a subject test and states that the accuracy of a subject test
is dependent upon a properly calibrated instrument and accuracy
check of proper calibration of the instrument. The accuracy check is
performed by introducing a sample which contains a known quantity
of alcohol to the Alco-Sensor IV and reading provided by the
instrument must be within the established tolerances if the instrument
is to be considered properly calibrated or accurate.
6.1 The counsel for the petitioner further argued that the operator of
the flight has grossly violated the Clause 5.4 of CAR Series F, Part
III, Section 5-Air Safety dated 04.08.2015. The operator has not
calibrated the BA equipment as per the procedure laid down in the
manual which states that the BA equipment shall be calibrated after
10,000 blows/six months/at a frequency as recommended by the
equipment manufacturer from an agency having ISO certification to
perform calibration activity. The calibration certificate received by
the petitioner proved a breach committed by the operator because the
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calibration of the equipment was not performed as per the procedure
laid down by the manufacturer of the BA equipment in the Manual.
The accuracy check had to be conducted after a waiting period of a
minimum of three minutes after carrying out calibration but the
calibration done was dated 25.01.2018 at 11:01 hours in case of
petitioner and the calibration/accuracy check was done at 11:03 hours
indicting that the interval was only of two minutes as against the
requisite waiting period of a minimum of three minutes and therefore
the result of the defective BA equipment cannot be relied upon.
6.2 The counsel for the petitioner further submitted that the ISO
certification of the respondent no.3 bearing no. ISO 9001:2015 is
applicable only for general management and does not conform to the
standard of ISO certification bearing no. ISO 17025:2005 which
certifies the facility to carry out calibration/maintenance activity of
the BA equipment which is a gross violation of the rules of
respondent no.2/DGCA which requires that the Operator to get the
calibration of the BA equipment done from the agency which has
ISO certification to undertake the calibration activity.
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6.3 The counsel for the petitioner further argued that DGCA Rules
and Regulations provides that the operator shall be bound by the
Rules and guidelines made by the manufacturer of ALCOSENSOR
IV and Operator cannot laid down their own procedure for calibration
of ALCOSENSOR IV. It is not stated in CAR and manufacturer
manual that by caring out dry run every day alleviates accuracy check
procedure laid down by the manufacturer. The DGCA Safety Rules
and Regulation do not make any provisions that the blood and
urine sample cannot be considered for confirmation of the alcohol
present in the blood as per the CAR dated 04.08.2015. The counsel
for the petitioner referred medical certificate dated 18.05.2018
issued by Dr. Sanjeev Sood which stated that as per the existing
scientific evidences, the accuracy of ALCOSENSOR devices below
level of BAC of 0.04% is not reliable and such low readings are
likely to be false, positive and influenced by other alcohol containing
substances like gels and perfumes and as per the Manufacturer
Manual, the Alco-sensor devices are not tested/calibrated for this low
level of BAC. The counsel for the petitioner prayed that the present
petition be allowed.
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7. The counsel for the respondents no 1 and 2 advanced oral
arguments and submitted written synopsis. The counsel for the
respondents no 1 and 2 argued that the Rule 24 of the Aircraft Rules,
1937 mandates the respondent no.2/DGCA to issue procedure for
medical examination of aircraft personnel for alcohol consumption
and accordingly the respondent no.2 issued CAR section 5, Series F
Part III, dared 04.08.2015 which is under delegated powers pursuant
to Rule 133A of the Aircraft Rules, 1937. There shall be no
detectable blood alcohol in breath, urine, or blood alcohol analysis of
the crew and the permissible limit of blood alcohol is set at 0.000 in
CAR. The Rule 24 is not applicable to the accept blood samples of
the petitioner. The petitioner was a habitual offender and was
previously apprehended for the same offence i.e. once prior to the
introduction of CAR in 2007 and twice thereafter in 2013 and 2018
resulting in suspensions of his license for periods of 3 months and 3
years, respectively.
7.1 The counsel for the respondents no 1 and 2 further submitted that
Para 4.3.7 of CAR cast a duty on the petitioner to inform the
respondent no. 3 or its doctor regarding any medication taken during
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his hair transplant treatment but the petitioner disregarded the rules
and regulations of the respondent authority. The petitioner despite
knowing that he was prohibited from using any drug formulation or
substance containing alcohol before flying underwent hair treatment
and consumed medicines. The petitioner himself acknowledged that
on consulting the company doctor on 05.04.2018, he was informed
that the treatment for hair fall and pigmentation was not covered by
the company but the petitioner proceeded with external treatment.
The petitioner despite being informed to operate flight bearing no AI-
104 from Delhi on 12.05.2018 underwent treatment without the
consent of company doctor of Air India/respondent no.3 just hours
before the scheduled flight.
7.2 The counsel for the respondents no 1 and 2 also stated that none
of CAR of years 2012, 2015 and 2018 provides provisions for the
testing of blood and urine of flight crew members and Blood and
urine sample collection is only provided in case of accidents as breath
analysis cannot be conducted on flight crew members during
accidents. The equipment used for BA test was calibrated on
25.01.2018 and was valid until 23.07.2018. It was further submitted
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that accuracy tolerance deviation of ± 5% was negated by obtaining
0.000 in the control test and any deviation has crept in the BA
Equipment after calibration, it will not show 0.000 reading and will
be removed for re-calibration. The respondent no 3 has arranged the
equipment and has submitted the ISO certification which complies
with the requirement of ISO 9001:2015 and scope of certificate is
ALCOSENSOR IV, Breath Alcohol, Analyzers Calibration and
Certification and as such there was no issue in calibration.
7.3 The counsel for the respondents no 1 and 2 also stated that the
respondent no.1 does not have any role in the BA testing process and
the doctor conducting the test is appointed by the Airline Operator
and the instrument does not belong to respondent no.1. The
respondent no.1 only verifies the calibration certificates of the
instruments. The impugned order and consequential orders were
passed on basis of the available evidence. The counsel for the
respondents no.1 and 2 has placed reliance on Capt. S K Kapur V
Union of India & Ors. in (W.P. (C) 7503/2018) and prayed that the
present petition be dismissed.
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8. The counsel for the respondent no.3/Air India Ltd. advanced oral
arguments and submitted written synopsis. The counsel for the
respondent no 3 argued stated that the present petition is not
maintainable against the respondent no.3/Air India Ltd. which is now
is a private entity and ceased to be a "State" under Article 12 of the
Constitution. The respondent no. 1/UOI and the respondent
no.2/DGCA have passed the impugned orders and the respondent
no.3/Air India Ltd. is only a proforma party which declared the
petitioner unfit to fly and followed procedure of the CAR 2015 for
BA test to check the alcohol consumption. The courts have refrained
from interfering with the impugned orders which were outcome of
policy decision of the Government and that the respondent no.3/Air
India Ltd. cannot allow the petitioner to fly as he violated the rules of
CAR 2015 and the Aircraft Rules, 1937. The petitioner on
13.11.2022 was tested BA positive for the third time while scheduled
to fly flight no. AI-762 (DEL-CCU) in pre-flight breath analyser
examination and the respondent no.2/DGCA has accordingly
cancelled his license vide order dated 12.06.2023 and the respondent
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no.3/Air India Ltd. also terminated the services of the petitioner on
12.07.2023 and as such the present petition has become infructuous.
8.1 The counsel for the respondent no 3 to counter argument of the
petitioner stated that he was found BA positive due to his ongoing
cosmetic treatment for hair fall wherein the aesthetician administered
certain serums containing alcohol argued that it is completely
baseless and is an afterthought because the petitioner submitted that
he consulted the Company doctor on 05.04.2018 and was informed
that such treatment for hair fall and pigmentation was not covered by
the respondent no. 3/Air India Ltd. and despite this, the petitioner
wilfully undertook the alleged treatment on just a few hours prior to
the scheduled flight and did not inform the Company's doctor
regarding prescribed medication and its effects. The action of the
petitioner was in violation of para 4.3.7 of CAR 2015 and the
petitioner was fully aware that he was not supposed to use any drug
formulation or any substance/product containing alcohol before
undertaking a flight and has flouted the rules and regulations of CAR.
The counsel for the respondent no 3 referred Capt. S.K. Kapur V
Union of India & Ors., 2018 SCC OnLine Del 10214.
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8.2 It is further argued that a blood or urine test as per Para 10 of
CAR may be undertaken in cases of accident. There is no provision
in CAR for carrying out a blood or urine test in case a crew member
tests BA positive during routine pre-flight medical examination
detailed under para 6 of CAR and therefore, the blood/urine test of
the petitioner undertaken by the petitioner himself after being tested
pre-flight BA is not relevant and placed reliance on Capt. Amit
Kumar Yadav V Union of India and Others, 2023 SCC OnLine
Del 4042. The allegations regarding the procedure for calibration of
the BA equipment Alco-sensor IV being not properly undertaken and
regarding the manufacturing standards for Alco-sensor IV are
baseless. The equipment was duly calibrated on 25.01.2018 and the
said calibration was valid till 23.07.2018. The respondent no.3/Air
India Ltd. fully complied with the requirements of ISO 9001:2015
under the ISO Certificate No. QM1368 dated 15.10.2014 which was
valid till 14.10.2020. The control test carried out after the petitioner's
first BA test showed a reading of 0.000 and none of the other crew
members who underwent the same test on the same day tested BA
positive apart from the petitioner and accordingly, the allegations of
Signing Date:18.07.2024 W.P(C) 6427/2019 Page 26
the petitioner are baseless. The counsel for the respondent no 3
further stated that Para 1.2.7 of the International Civil Aviation
Organization (ICAO) and Rule 24 of the Aircraft Rules, 1937 provide
prohibition on use/consumption of intoxicating and psychoactive
substances including alcohol by pilots or any crew member. The
respondent no.2/DGCA has prescribed a zero-tolerance policy with
regard to blood alcohol level and the respondent no.3/Air India Ltd.
is bound by it. The reliance was placed on Capt. Amit Kumar
Yadav V Union of India and Others, 2023 SCC OnLine Del 4042
and Indian Commercial Pilots Association V Director General of
Civil Aviation, 2017 SCC Online Del 9844. The counsel for the
respondent no.3/Air India Ltd. prayed that the present petition be
dismissed being devoid of any merit.
9. Before averting to facts of the case, it is necessary to mention
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:-
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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
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.
9.1 The respondent no 2 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
Signing Date:18.07.2024 W.P(C) 6427/2019 Page 28
as 0.000. The respondent no 2 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 Rule 1937. The CIVIL AVIATION REQUIREMENTS,
2015 SECTION 5 - AIR SAFETY SERIES F PART III ISSUE III
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 operations of flights in India as 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
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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) provides 03 years
suspension of licence in case of second time breath analyser test is
positive.
9.2 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 22.04.2021 and as such the
petitioner has consumed alcohol on the said date when the petitioner
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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.
9.3 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, 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
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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.
9.4 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 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.
9.5 This court while deciding writ petition bearing no W.P.(C)
8826/2020 titled as Capt. Karan Mehta V Director General of
Civil Aviation & others vide order dated 04.07.2024 observed as
under:-
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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 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 Rules1937 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 analyser 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 leniency to erring pilot shall be prejudicial to
the safety of the passengers.
10. It is reflecting that is that the petitioner is a commercial pilot
having Airline Transport Pilot License (ATPL) bearing no. 4236 and
was working with the respondent no.3. The petitioner claimed to be
suffering from hair loss and melasma and on 06.04.2018 started to
take treatment from Omorfia, Aesthetic Clinic. The petitioner was
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asked to operate flight no AI-104 from Delhi to Hyderabad but before
operating the flight, he had gone for aesthetic treatment. The
petitioner was subjected to regular Pre Flight Medical Check (PFMC)
and tested positive for alcohol at 12:51 pm through an instrument
ALCOSENSOR-IV Serial No. 096105 a with a reading of 0.020% at
12:51 pm and the second test came positive with a reading of 0.016%
conducted at 13:12 pm on the same instrument. The petitioner on
12.05.2018 at 15:05 pm also underwent Blood and Urine Serum
Tests at NABL approved laboratory, SRL Diagnostics and tested
negative for alcohol. The petitioner also tested BA positive on
10.07.2013 at Mumbai while he was scheduled to operate flight no
AI-633. The Joint Director General, Directorate General of Civil
Aviation vide the impugned order dated 14.06.2018 after observing
that the petitioner had violated the provision contained in the Civil
Aviation Requirements Section-5, Series-F, Part-III, Issue-III dated
04.08.2015 suspended the pilot license (ATPL no. 4236) of the
petitioner for a period of three years with effect from 12.05.2018.
The respondent no 3 did not have any provision or facility for
treatment undergone by the petitioner. The petitioner vide letter dated
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13.12.2018 issued by the respondent no.2 was communicated that
there is no provision for second appeal with the respondent no.2 as
per Rule 3B of the Aircraft Rules, 1937 which may be preferred to
the respondent no.1. The petitioner consulted company doctor on
05.04.2018 and was informed that the treatment for hair fall and
pigmentation is not covered by the company. The appeal preferred by
the petitioner to the respondent no.1 on 10.01.2019 to challenge the
impugned order dated 14.06.2018 and the consequential order dated
13.12.2018 was dismissed on 09.04.2019 for violation of CAR,
Series F, Part III, Issue III, Clause 4.3.9 dated 04.08.2015. The
petitioner was also tested BA positive for the first time on 06.11.2007
before issue of CAR besides being tested BA positive on 10.07.2013
and 12.05.2018. CAR did not have any procedure for carrying blood
and urine test in case a crew tests BA positive during routine Pre-
flight medical.
11. The counsel for the petitioner primarily argued and also
contended by the petitioner that the respondent no 3 has grossly
violated the Clause 5.4 of CAR Series F Part III, Section 5-Air Safety
dated 04.08.2015 as the operator has not calibrated the BA equipment
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as per the procedure as BA equipment shall be calibrated after 10,000
blows/six months/at a frequency as recommended by the equipment
manufacturer from an agency having ISO certification to perform
calibration activity. The calibration certificate provided to the
petitioner reflected a breach committed by the respondent no 3. The
counsel for the petitioner further argued that DGCA Safety Rules
and Regulations do not make any provisions that the blood and
urine sample cannot be considered for confirmation of the alcohol
present in the blood as per the CAR dated 04.08.2015 and referred
medical certificate dated 18.05.2018 issued by Dr. Sanjeev Sood. The
petitioner also contended that he was suffering from hair loss and
melasma and started to take treatment from Omorfia, Aesthetic
Clinic since 06.04.2018 and on 12.05.2018 before operating schedule
flight underwent treatment before being tested BA positive and
further pleaded that he at 15:05 pm also underwent Blood and Urine
Serum Tests at NABL approved laboratory, SRL Diagnostics and
tested negative for alcohol. However, arguments advanced by the
counsel for the petitioner and contention of the petitioner are
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meritless and deserved to be rejected on basis of reasons as detailed
herein below.
12. CAR provides that there shall not be detectable blood alcohol in
breath, urine, or blood alcohol analysis of the crew and the
permissible limit of blood alcohol is set at 0.000 in CAR. The
petitioner happened to be was a habitual offender as tested positive
twice for alcohol after introduction of CAR in 2013 and 2018. The
petitioner as per mandate of Para 4.3.7 of CAR was under a duty to
inform the respondent no. 3 or its doctor regarding any medication
taken during his hair transplant treatment but the petitioner did not
inform the company doctor about his treatment and as such violated
Para 4.3.7 of CAR. The petitioner during consultation with company
doctor on 05.04.2018 was informed that the treatment for hair fall
and pigmentation was not covered by the company but preferred to
proceed with external treatment. The petitioner on 12.05.2018 just
before operating flight bearing no AI-104 from Delhi underwent
treatment without the consent of company doctor of the respondent
no.3. CAR of 2015 does not contain provisions for the testing of
blood and urine of flight crew members which only provided in case
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of accidents. The contention of the petitioner that he tested BA
positive due to cosmetic treatment for hair fall and was administered
certain serums containing alcohol by the aesthetician is manifestly
baseless and appears to be afterthought as the petitioner was duly
informed by the company doctor on 05.04.2018 about non
availability of treatment for hair fall and pigmentation with the
respondent no. 3. It is also apparent and established that the
equipment used for BA test was calibrated on 25.01.2018 and was
valid until 23.07.2018 and accuracy tolerance deviation of ± 5% was
negated by obtaining 0.000 in the control test and further ISO
certification No. QM1368 dated 15.10.2014 complied with the
requirement of ISO 9001:2015which was valid till 14.10.2020. The
pilot license of the petitioner was suspended for a period of three
years as per Para 8.1(b) of CAR being case of second violation. The
impugned order dated 14.06.2018 passed by the respondent no. 2 and
order dated 09.04.2019 passed the appellate authority were passed on
basis of relevant consideration and appellate authority also afforded
opportunity of being heard to the petitioner. This court while
deciding writ petition titled as Capt. Karan Mehta V Director
Signing Date:18.07.2024 W.P(C) 6427/2019 Page 38
General of Civil Aviation & others has already observed that the
respondent no 2/DGCA has mandated zero tolerance policy with
regard to blood alcohol content and blood alcohol limit has been laid
down as 0.000 in the CAR. The petitioner while operating schedule
flight as a pilot was not supposed to be under the influence of
alcoholic drink, sedative or stimulant drug which may cause serious
threat to the safety of the passengers traveling in an Aircraft. The
respondent no 2 acted as per Para 8.1(b) of CAR as the safety of the
passengers can never be compromised or diluted and unnecessary
leniency to erring pilot shall be prejudicial to the safety of the
passengers. The arguments oral and written advanced by the
respective counsels for the petitioner and the respondents along with
case law are considered in right perspective. The arguments advanced
by the counsel for the petitioner are without merit and contrary to
express provisions of CAR 2015 and cannot be accepted.
12.1 It has also come on record that the petitioner on 13.11.2022
again tested BA positive for the third time while scheduled to fly
flight no. AI-762 (DEL-CCU) in pre-flight breath analyzer
examination and the respondent no.2/DGCA has accordingly
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cancelled his license vide order dated 12.06.2023 and the respondent
no.3 also terminated the services of the petitioner on 12.07.2023.
13. The petitioner in view of the above-mentioned facts and
circumstances is not entitled for any relief as prayed for in petition as
the petitioner reported for his flying duty in violation of mandatory
provisions of CAR. Accordingly, the present petition is dismissed
along with any pending applications.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JULY 12, 2024
sk/ak/abk
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