w w w . L a w y e r S e r v i c e s . i n

Capt. Vivek A.Shanbhag v/s Union of India, Rep. By its Secretary, Ministry of Civil Aviation, & Others

Company & Directors' Information:- A K AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200MH2007PTC176382

Company & Directors' Information:- S V V AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200KA2008PTC046264

Company & Directors' Information:- S R C AVIATION PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071383

Company & Directors' Information:- S M INDIA LTD [Strike Off] CIN = U26942ML1998PLC005541

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- M AND C AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63013KA2006PTC039002

Company & Directors' Information:- S. A. AVIATION PRIVATE LIMITED [Active] CIN = U63040DL2012PTC234038

Company & Directors' Information:- AVIATION INDIA PRIVATE LIMITED [Strike Off] CIN = U63033DL1996PTC077267

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- S K AVIATION PRIVATE LIMITED [Strike Off] CIN = U63090WB1999PTC089940

Company & Directors' Information:- P AND M AVIATION PRIVATE LIMITED [Active] CIN = U35999KA2021PTC143523

Company & Directors' Information:- S. S. AVIATION PRIVATE LIMITED [Active] CIN = U35300KA2007PTC043583

Company & Directors' Information:- R. S. INDIA AVIATION PRIVATE LIMITED [Active] CIN = U62100DL2006PTC153980

Company & Directors' Information:- J D M AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63040PB2013PTC038242

Company & Directors' Information:- J T AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200DL2011PTC216080

    W.P. No. 4416 of 2014 & M.P. No. 2 of 2014

    Decided On, 07 April 2014

    At, High Court of Judicature at Madras


    For the Petitioner: Vinay Narayan, Senior Counsel for M. Vidhya, Advocate. For the Respondents: R1, R7 & R8, K. Mohanamurali, SCCG for R2 N.G.R. Prasad, Advocate.

Judgment Text

(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue aWrit of Certiorari calling for the records culminating in the order dated 03.02.2014 bearing No.AV.15026/19/2014-AS passed by the 8th respondent representing the 7th respondent and to quash the same.)

1. The issues involved in this writ petition are governed by the Aircraft Act, 1934 and Aircraft Rules, 1937. As per the provisions of the above Statues, the petitioner was granted Air Line Transport Pilot's License on 25.08.1994 and the same was later on renewed up to 19.10.2015. The Director General of Civil Aviation, issued 'Civil Aviation Requirements' [vide Section 7 – Flight Crew Standards Training & Licensing Series 'I', Part I, 27th May, 1998 which came into being with effect from 01.12.2010]. This was issued in exercise of the powers conferred on the Director General of Civil Aviation [hereinafter referred to as 'the DGCA'] under Rule 133(A) of The Aircraft Rules, 1937. As per the said requirements, the minimum requirements for the approval of Check-Pilots' Instructors & Examiners for the purposes specified in Rule 41-A and Schedule II of the Aircraft Rules, 1937 for scheduled commercial operations with fixed-wing aircraft were specified. According to the same, the Pilots recommended for approval as Examiners / Instructors / Check-Pilots shall be free from prejudices and strong likes and dislikes and capable of recording fair assessments and shall be known for their impartiality towards them. The Clause (3) of the said requirements speaks of 'Requirements of Flying Experience' for various positions including the Instructor. Clause (4) speaks of the privileges of Examiners / Instructors / Check-Pilots. So far as the Instructors are concerned, they have the following privileges:

'Clause 4.2 Instructors'

(i) Training of pilots for Co-Pilot / Pilot-in-Command rating and Instrument Rating.

(ii) Training of Instructors and Check-Pilots.

(iii) Proficiency checks (LR and Route Check).

(iv) Instrument Rating (IR) renewal check.

(v) To exercise the privileges of a Check Pilot.

2. The petitioner, as I have already pointed out, is, admittedly, a Pilot having a due license issued by the DGCA. He has also got approval as Check-Pilot and also Initial Operators Experience [IOE]. According to the petitioner, he has got approval as Instructor to enjoy the privileges as referred to in Clause 4.2 of the Requirements as extracted above. In other words, according to the petitioner, he is eligible for Proficiency checks (LR and Route Check) and Instrument Rating (IR) renewal check.

3. The petitioner is, admittedly, an employee under the 2nd respondent – M/s.Air India Limited. For the purpose of giving training to the Pilots, the 2nd respondent has got some arrangements with M/s.Jet Airways for hiring simulators. Accordingly, the 2nd respondent was to send pilots for training in the simulators. The pilots cannot on their own operate the simulators as they require trainers to train them. The 2nd respondent deputed the petitioner to train its pilots in the simulators. Accordingly, the petitioner trained the pilots in the simulators. The petitioner has further stated that there were some disputes between the 2nd respondent and the petitioner because the petitioner pointed out that though the pilots were to be given training for eight hours a day in the simulators, they were actually given training only for an hour per day , but, still, the amount for eight hours was paid. Thus, according to the petitioner, it was a scam. Therefore, he informed the same to the higher authorities. Instead of taking action in respect of the above said scam, a charge memorandum was issued to the petitioner. Challenging the same, the petitioner filed a writ petition in W.P.No.30738 of 2013, in which, this court, by order dated 13.11.2013, granted an order of interim stay. It is also admitted that subsequent to the filing of the said writ petition, charge memorandum itself was withdrawn by the 2nd respondent.

4. Now, the 8th respondent for the 7th respondent issued an order, by means of his proceedings in AV.15026/19/2014-AS dated 03.02.2014, suspending the privileges of the Pilot's License held by the petitioner pending investigation. The petitioner challenges the same in this writ petition.

5. According to the counter affidavit filed by the respondents 1, 7 & 8, they have got power to issue such an order of suspension under Rule 19 (3) (b) of The Aircraft Rules, 1937 r/w Ministry of Tourism and Civil Aviation Notification No.S.O.727(E) of October 1994. It is further stated that from the reports, the petitioner was found to have exercised the privileges of TRE/TRI as Instructor. In other words, according to the respondents 1, 7 & 8, the petitioner had acted as Instructor to conduct Proficiency Checks (LR and Route Check) and Instrument Rating (IR) renewal check. According to the respondents, the petitioner was never approved as an Instructor to enjoy these privileges. Thus, there is a gross violation of the license condition and, therefore, the impugned order came to be passed. It is also stated in the counter affidavit that the impugned order can be agitated by means of a statutory appeal to the Central Government as provided in 3(B) of the Aircraft Rules. When such an alternative remedy is available, according to the respondents 1, 7 & 8, this writ petition is not at all maintainable.

6. The learned counsel for the 2nd respondent would submit that, it is true, that there was no approval given to the petitioner as an Instructor. Only a proposal was submitted by the 2nd respondent to the DGCA for the purpose of approval of the petitioner as Instructor. But, even before giving approval, the impugned order came to be passed.

7. When a specific query was made to the learned counsel for the 2nd respondent, as to how the 2nd respondent had permitted the petitioner to act as an Instructor, the learned counsel has got no answer to submit.

8. I have considered the above submissions carefully and I have also gone through the records.

9. As of now, the petitioner is not able to show any document to the effect that approval was given to him to enjoy the privileges of an Instructor. Even the 2nd respondent is not in a position to say that such approval was, in fact, given by the DGCA. It is the positive assertion of the respondents 1, 7 & 8 that no such approval was given to the petitioner to enjoy the privileges of an Instructor.

10. But, as per the requirements cited supra,Proficiency Checks (LR and Route Check) and Instrument Rating (IR) Renewal Check can be done only by the Instructors who have been duly approved by the DGCA. But, admittedly, the petitioner had acted as Instructor only as instructed by his immediate employer namely, M/s.Air India Limited. According to the petitioner, he never trained any Pilot in the Aircraft. Instead, according to him, he trained the Pilots only in the simulators in Mumbai owned by M/s.Jet Airways. Thus, it is a disputed question of fact. Whether the petitioner trained the Pilots in the Aircraft or he trained them only in the simulators is a matter now under investigation about which I do not want to express any opinion. Further, whether the petitioner is competent to train the Pilots in the simulators without there being an approval as Instructor itself is under dispute about which also I do not want to express anything. It is for the investigating authority to give a finding on the same. But, the fact remains that the petitioner would not have acted on his own to enjoy the privileges of Instructor. The Pilots were all deputed for training only by the 2nd respondent – M/s.Air India Limited and only as instructed by his immediate employer, the petitioner went for giving training to the Pilots. Therefore, the petitioner cannot at all be blamed for this. As I have already pointed out, the 2nd respondent has no satisfactory explanation to this court as to how and why the 2nd respondent directed the petitioner to perform the functions of an Instructor though he has not been approved as Instructor by the DGCA. The learned counsel for the 2nd respondent would submit that it is not known as to whether the petitioner was really sent for giving training to the Pilots or he was sent only to undergo training. In my considered opinion, all these disputed questions cannot be gone into by this court and this court cannot express any opinion as this court has been called upon only to examine the correctness of the order of suspension.

11. Of course, the DGCA has got power to pass an order of suspension under Rule 19(3)(b) and 3A of Aircraft Rules, 1937 which read as follows:-

19. Cancellation, suspension or endorsement of licences, certificates, authorisation and approval(1) ... ... ... ...

... ... ... ...

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

(a) ... ... ... ...

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

'3A. Delegation of Powers (1) Any power or duty conferred or imposed by these rules on the Central Government may be exercised or discharged by the Central Government or by any person authorized by it in that behalf;

(2) Any power or duty conferred or imposed by these rules on the Director-General may be exercised or discharged by the Director-General or by any other person authorised by the Central Government in that behalf;

(3) The exercise or discharge of any power or duty conferred or imposed by the rule 19 or part V or part VI of these rules on the Central Government by an authority outside India specified by the Central Government in that behalf, shall have effect in India as though the powers have been exercised or the duty discharged by a person authorised in this behalf under sub-rule(1) of this rule.

12. A perusal of the above provisions would clearly go to show that suspension pending investigation is not automatic. Suspension can be made only in public interest pending investigation. But, in this matter, a cursory perusal of the impugned order would go to show that there is no public interest referred to at all. For a moment, I am not influenced by mere non mentioning of the words 'public interest' in the impugned order. What I would say is that a whole reading of the order impugned in this writ petition does not show that the DGCA had taken into account the public interest in any form. Therefore, prima facie, I am satisfied that the impugned order cannot be sustained as the same has not been passed in public interest.

13. So far as the objection regarding the availability of alternative remedy is concerned, it is, of course, true that when there is an alternative remedy of appeal available, the High Courts will not normally exercise their writ jurisdiction. But, there are also exceptions to the same. When the order is palpably erroneous, such as, want of jurisdiction, violative of principles of natural justice, etc., then, on the ground of availability of alternative remedy, the High Courts do not hesitate to exercise their power under Article 226 of the Constitution of India. In this case, as I have already stated, though there is an alternative remedy of appeal available to the petitioner, on that score, I am not inclined to non-suit the petitioner inasmuch as the order impugned in this writ petition is prima facie without jurisdiction since the order does not reflect the consideration of the public interest involved. Apart from that factually also, when there are lots of disputed questions which are under investigation and when the fact remains that the petitioner would have trained the Pilots only on the directions of the 2nd respondent without whose instructions, the petitioner would have had no occasion at all to have the Pilots with him for the purpose of training, I am of the view that the petitioner cannot be totally blamed. When such a great organization, like M/s.Air India Limited could direct its employee to execute a particular job, I do not think that it would have bee

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n possible for such employee to refuse to comply with such direction of his immediate employer. In my considered opinion, going by the facts as well as the law involved in this matter, the suspension of licence of the petitioner to act as a Pilot is too harsh a measure. At the same time, he can be prevented from exercising the privileges of IOE, TRI, TRE, etc., but not as a Pilot for which he has got due licence renewed up to 19.10.2015. 14. In view of all the above, the writ petition is allowed and the impugned order is set aside to the limited extent as indicated below:- (i) The licence of the petitioner as Air Line Transport Pilot will be in force and the petitioner can enjoy the privileges of a Pilot. (ii) It is further directed that the petitioner shall not enjoy the privileges of Check-Pilot or IOE or TRE or TRI pending investigation and pending final verdict in the proceedings initiated against him. (iii) It is also directed that the proceedings initiated against the petitioner such as investigation and the consequential proceedings shall be completed within a period of three months from the date of receipt of a copy of this order. (iv) The parties are directed to cooperate with the authorities for early disposal of the proceedings as directed in this order. No costs. Consequently, connected MP is closed.