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



Indian Commercial Pilots Association v/s Director General 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:- INDIAN COMMERCIAL CO PVT LTD [Active] CIN = U74999MH1943PTC004042

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

Company & Directors' Information:- THE INDIAN COMMERCIAL CORPORATION PVT. LTD. [Dissolved] CIN = U51900WB1982PTC034934

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:- 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

Company & Directors' Information:- GENERAL COMMERCIAL CORPORATION (INDIA) PRIVATE LIMITED [Liquidated] CIN = U99999TN1948PTC000769

Company & Directors' Information:- GENERAL COMMERCIAL CORPORATION PRIVATE LIMITED [Dissolved] CIN = U99999TN1956PTC000768

    W.P.(C) No. 3231 of 2017

    Decided On, 17 August 2017

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE SANJEEV SACHDEVA

    For the Appearing Parties: Dr. Abhishek Manu Singhvi, Senior Advocate with Sandeep Sethi, Senior Advocate with Gopal Sankar, Narayanan, Sulabh Rewari, Shujoy Mazumdar, Anjana Gosain, Joseph, Deputy Director Parag Tripathi, Senior Advocate with Bhavana Duhoon, Mukesh Kumar, Gunjan Sinha Jain, Rishabh Kapur, Sudhir Nandrajog, Senior Advocate with Ankur Chibber, Aditya Chibber, Advocates.



Judgment Text

Sanjeev Sachdeva, J.

1. The Petitioner by the present petition inter alia seeks a Mandamus thereby directing Respondent No. 1 (Director General Civil Aviation, hereinafter referred to as DGCA) to initiate an enquiry and take action against Respondent No. 2 (Captain Arvind Kathpalia, hereinafter referred to as Captain Kathpalia) with respect to the allegations of offences under Paragraph 8.1 and 8.2 of the Section 5, Series F, Part 111, Issues III of the Civil Aviation Requirements dated 04.08.2015 (hereinafter referred to as CAR). Further mandamus is sought to suspend Captain Kathpalia until a Final Enquiry report is published relating to his alleged offences on 19.01.2017 and to cancel his Airline Transport Pilot Licence (ATPL for short) and further to restrain the respondents from appointing Captain Kathpalia to any post until the Final Enquiry report.

2. The Petitioner (Indian Commercial Pilots Association) claims to be the oldest recognized pilots union in the country and is recognized by Respondent No. 4 Air India (hereinafter referred to as Air India).

PETITIONER’S CASE

3. The case of the petitioner is that on 14.10.2013, the then Executive Director (Personnel) of the Air India issued a circular stating that any pilot not complying with the procedure ‘for medical examination of aircraft personnel for alcohol consumption’ shall be promptly charge-sheeted and a departmental enquiry will be instituted against them apart from being immediately de-rostered.

4. DGCA issued the subject CAR on 04th August, 2015 laying down the procedure for medical examination of aircraft personnel for alcohol consumption. The CAR made effective forthwith, mandates taking of a medical examination by all flight personnel including pilots for alcohol consumption and inter alia lays down the procedure for the conduct of breath analysis examination, the time when the examination is to be taken and the procedure to be followed by the flight personnel, medical doctors etc. It also stipulates the punishment for any infraction.

5. Captain Kathpalia on 22.08.2016, as the then Executive Director (Flight Operations) also issued a circular reiterating the afore-mentioned CAR.

6. The CAR mandates that for all scheduled flights originating from India, each flight crew and cabin crew shall be subjected to preflight breath-analyzer examination and for all Scheduled flights originating from destinations outside India, post-flight breathanalyzer examination of each flight crew and cabin crew shall be carried out on reaching in India. (emphasis supplied).

7. It is contended that on 19.01.2017, Captain Kathpalia, then still the Executive Director (Flight Operations) of Air India, was scheduled to fly flight AI-174 from Delhi to Bengaluru.

8. Disregarding the rules, Captain Kathpalia proceeded to fly the aircraft and attend to his flying duties without undergoing the mandatory Pre-Flight Breath Analyzer examination.

9. It is contended that not only did Captain Kathpalia miss the PreFlight Breath Analyzer Examination, he, despite being informed by the Flight Dispatcher on landing in Bengaluru about having missed the test, failed to take the Post-Flight Breath Analyzer examination. He thereafter flew flight AI-173 back from Bangaluru to Delhi.

10. After landing in Delhi Captain Kathpalia did not take the PostFlight Breath Analyzer Examination but went into the Pre-Flight medical examination room and made an entry in the Pre-Flight Breath Analyzer Examination Register. The entry was made at a position in the Register so as to show that a Pre-Flight Breath Analyzer Examination had been taken by Captain Kathpalia prior to operating the Delhi – Bengaluru flight AI-174.

11. It is contended that Captain Kathpalia committed five offences i.e.

* Firstly, he evaded the Pre-Flight Breath Analyzer examination at New Delhi on flight AI-174.

* Secondly, he voluntarily refused to take the Post Flight Breath Analyzer examination at Bengaluru, in spite of being informed by flight dispatcher.

* Thirdly, he again refused to take the Pre-Flight Breath Analyzer Examination before attending to his flying duties on flight AI-173 from Bengaluru to New Delhi on the same night.

Fourthly, he evaded the Post-Flight Breath Analyzer Examination on his arrival in New Delhi, after flying flight AI-173.

Fifthly, he made a false entry by filling up the PreFlight Examination Register for flight AI-174 and AI-173 after landing at Delhi.

12. It is submitted by learned senior counsel for the petitioner that despite the CAR mandating that the every infraction has to be reported to the concerned Regional Air Safety Office of the DGCA, no information was sent to DGCA.

13. It is contended that no action was taken by the Respondents against Captain Kathpalia. On becoming aware of the facts, the Petitioner association sent letters dated 30.01.2017 and 01.02.2017 to DGCA and the General Manager (Medical Services) of Air India calling for an investigation into the violations by Captain Kathpalia.

14. It is contended that Dr. Nitin Se, the Medical Officer, IGI New Delhi, on duty at night for conducting the Medical examinations on 19.01.2017, gave statements to the enquiry committee dated 03.02.2017 and 08.02.2017 stating that Captain Kathpalia did not take the Breath Analyzer examination on 19.01.2017. On 07.02.2017, Captain Kathpalia was off rostered by Air India but was continued on the post of Executive Director (Flight Operations).

15. It is contended that Dr. Nitin Se, who had deposed twice before the enquiry committee, by a frantic email dated 11.02.2017, to the General Manager (Medical), Northern Region, of the Air India, complained of threats and harassment meted out to him and apprehension of losing his job and danger to his life and livelihood. He stated that Captain Kathpalia was attempting to manipulate the enquiry and was pressuring him to change his statement in order to sabotage the investigation.

16. By order dated 15.02.2017, DGCA recorded that Captain Kathpalia had operated flight Al-174 (DEL-BLR) without undergoing the Breath Analyzer examination. Captain Kathpalia was suspended for a period of three months and it was further ordered that an endorsement of the violations be made on his license.

17. The Petitioner by letter dated 15.02.2017, requested DGCA to take stricter action in accordance with CAR in view of the fact that Captain Kathpalia was a senior officer and incharge of enforcing the very laws that he proceeded to violate with impunity.

18. It is submitted that instead of taking strict action against Captain Kathpalia, he was surreptitiously appointed to a post of Executive Director (Special Projects) a post that had not even existed in the recent past. It is contended that instead of taking action as mandated by CAR, a lenient view was being taken in dealing with Captain Kathpalia. It is submitted that to compound their inaction, Air India seeks to appoint Captain Kathpalia as Director on the Board of Air India as the Director (Operations).

19. It is contended that Captain Kathpalia does not possess the requisite professional qualifications prescribed for the post of Director as neither does he have an impeccable track record nor a valid Indian Airline Transport Pilot License (ATPL) because the same stands suspended for three months. It is contended that as per the CAP 3100, CAP 8100 of the Air Operator Certification Manual, the performance of a candidate applying for the post of Director (Operations), within past 5 years, should be such that there is no doubt as to his character, integrity or judgment in relation to flight operation.

20. It is contended that in the advertisement calling for applications to the post of Director (Operation) it was specified that Director (Operation) would be inter alia responsible for Flight Operations, Ground Operations, Flight Safety and Training (Operations). He would also be responsible for evolving and formulating policies and strategies relating to Operation Functions so as to achieve overall objectives of the Company. It is contended that the advertisement requires the applicant to have an impeccable safety record.

21. Learned senior counsel for the petitioner submitted that Captain Kathpalia missed the Pre-Flight Breath Analyzer Examination prior to taking the Delhi – Bengaluru flight. The Doctor on duty Dr. Manoj informed the Flight Dispatcher, who informed Captain Kathpalia about his having missed the examination. It is submitted that Captain Kathpalia instead of taking a Post-Flight Breath Analyzer Examination at Bengaluru or a Pre-Flight Breath Analyzer Examination prior to operating Bengaluru – Delhi, landed at Delhi and even then did not undergo a Post-Flight Breath Analyzer Examination. He thereafter went to the Pre-Flight Breath Analyzer Examination Medical Room and made an entry in the Pre-Flight Breath Analyzer Examination Register in respect of Delhi – Bengaluru flight so as to create a record to show that he had taken the Pre-Flight Breath Analyzer Examination.

22. It is submitted that when Captain Kathpalia returned from Bengaluru, the doctor on duty was not Dr Manoj as duty had changed and it was Dr Nitin, who was then on duty. As Dr Nitin was not on duty at the time of departure of Delhi – Bengaluru Flight, he could not have counter signed in the Pre-Flight Breath Analyzer Examination Register.

23. It is submitted that if Dr Manoj had counter signed the Register on a later date, no one would have come to know about the infraction by Captain Kathpalia. It is submitted that CCTV footage of the medical examination room is verified by DGCA only on sample basis.

24. It is further submitted that no one reported the incident for over 11 days and had the petitioner also not brought it to the notice of DGCA and Air India, no one would have come to know about the same. It is submitted that the CAR, mandating medical examination of aircraft personnel for alcohol consumption, has been issued in the interest of Air Safety. It is submitted that not only Captain Kathpalia has compromised Air Safety but he has also made a false entry in the Pre-Flight Breath Analyzer Examination Register to cover up for his lapse. It is submitted that Captain Kathpalia having earlier held the post of Executive Director (Operations) and seeking to be appointed as Director (Operations) on the Board of Air India is well aware of the mandatory nature of CAR as he himself had been responsible for ensuring compliance with CAR in the interest of Air Safety.

25. It is submitted that the gravity of the offence is increased, when the very person whose job is to ensure compliance of the mandatory provisions, himself violates the same and not only does he violate the mandatory provisions but makes a false entry in the register to cover up his lapse. It is submitted that how can such a violator of law be trusted to ensure compliance by others of the mandatory provisions.

26. It is submitted that Captain Kathpalia has been suspended only for a period of three months, which is the punishment prescribed for missing the examination once, but as Captain Kathpalia has missed the examination twice (i.e. Delhi – Bengaluru and Bengaluru – Delhi), his licence is liable to be suspended for three years besides being liable for being proceeded against for making a false entry in the PreFlight Breath Analyzer Examination Register. It is submitted that Captain Kathpalia is also disqualified for being appointed to the post of Director (Operations). It is in these circumstances this petition has been filed.

27. Learned senior counsel for the petitioner has relied upon the decision of the Supreme Court of India in the case of SETH BALGOPAL DAS VERSUS STATE OF U.P. (1976) 3 SCC 394 and D. STEPHEN JOSEPH VERSUS UNION OF INDIA (1997) 4 SCC 753 to contend that a practice that is not in conformity with the statutory provision cannot be given effect to and a wrong practice cannot possibly modify what naturally and logically follows from the language of the Statute.

28. Further reliance is placed on the decision of the Supreme Court of India in the case ROHITASH KUMAR VERSUS OM PRAKASH SHARMA (2013) 11 SCC 451 to contend that hardship / inconvenience caused to an individual cannot be the basis for altering the plain meaning of the statutory provision.

29. Reference is also made to the Decision of the Supreme Court of India in K.P. VERGHESE VERSUS ITO (1981) 4 SCC 173 and DOYPACK SYSTEMS (P) LTD. VERSUS UNION OF INDIA (1988) 2 SCC 299 to contend that the rule of 'contemporanea exposition' is not applicable in the present case.

30. Responding to the plea with regard to maintainability of the present petition, learned senior counsel for the petitioner contended that the present is not a petition in Public Interest and is a petition filed for the purposes of maintaining institutional integrity. It is submitted that a Writ of Quo Warranto would not lie in the present circumstances as Captain Kathpalia is yet to be appointed to the Post.

CASE OF RESPONDENT NO. 1 DGCA

31. DGCA, in its counter affidavit, has defended the action taken for suspending Captain Kathpalia only for a period of three months. It is contended that DGCA is a regulator of Civil Aviation and is responsible for maintaining strict safety and security of the passengers in terms of the powers envisaged under the Aircraft Act, 1934 and all decisions with regard to the discipline are taken in terms of Rule 24 of the Aircraft Rules, 1937 for which CAR has been issued.

32. It is contended that CAR is fully compliant in terms of the conditions set out with International Civil Aviation Organization. The action dated 15.02.2017 has been taken strictly in terms of the said CAR. It is submitted that Members of the petitioner association have also been identically treated and have been awarded similar punishments.

33. It is contended that DGCA has been very diligent and vigilant in checking the violations of the pilots as well as the airport operator. It is submitted that missing the breath analyzer examination does not mean that it is positive. The action in the case of Captain Kathpalia has been taken after having gone through the inquiry report of Air India and other records of the Air India

34. It is contended that it was a case of first default of not undergoing the breath analyzer examination, thus in terms of CAR, the licence of Captain Kathpalia was suspended for a period of 3 months.

35. It is contended that the flight, which Captain Kathpalia was operating was a single flight in as much as it had the same aircraft i.e. VT-ANX Flight No. AI-174 Sector Delhi to Bengaluru with Captain Kathpalia and Capt. Dinglay as flight crew, the flight departed Bengaluru after a gap of 57 minutes. The return flight from Bengaluru to Delhi was also the same aircraft VT-ANX Flight No. AI-173 Sector Bengaluru to Delhi.

36. It is contended that in terms of aviation, this is a single flight and if a pilot misses out or refuses to go through the breath analyzer examination, then it would be treated as one offence and not five offences, as alleged. It is contended that a pilot has to undergo the pre-flight breath analyzer examination only once in his flight duty hours. If a pilot has to undertake one sector, then he has to undergo the examination once in the entire flight duty hour cycle of 12 hours.

37. It is contended that as per CAR, for all scheduled flights originating from India, each flight crew and cabin crew is subjected to pre-flight breath-analyzer examination. CAR requires post flight medical examination to be carried out only in case of diversion of flight due to unforeseen circumstances or where facilities for preflight breath analyzer examination is not available. It is contended that, in normal course, post flight breath analyzer examination cannot be used in lieu for Pre-Flight Medical Examination. The penalty as per Para 8.1 of the CAR is attracted once the crew has operated the flight without undergoing the pre-flight breath analyzer examination.

38. It is submitted that there is no requirements for the crew to undergo pre-flight breath analyzer examination at transit station for any flight, as during the entire period, the crew would remain in a sterile environment and remain engaged in post flight and pre flight duties of the aircraft. Accordingly, at the transit station the crew will have no opportunity of consumption of alcohol.

39. It is contended that in the present case, the transit station was Bengaluru after operation of flight AI-174 (Delhi – Bengaluru) with an actual transit halt of 57 minutes during which the crew remained within the sterile area.

40. It is further submitted that if such an offence was to be treated as a second repeat violation then all airlines would be grounded because that would require getting the breath analyzer examination done after every flight, which is not the intent of the CAR, in as much as it is only once that a pilot has to undergo the pre-flight breath analyzer examination within his flight duty hours cycle and the multiple sectors assigned to him. It is submitted that in the present case, Captain Kathpalia was flying Delhi – Bengaluru – Delhi and that has to be treated as a single flight and thus would be treated as one offence and since it was the first offence, the punishment of suspension for three months and not three years was commensurate with the offence.

41. With regard to not taking any action between 30.01.2017 (when the petitioner informed DGCA) and 07.02.2017 (when Air India derostered Captain Kathpalia), it is contended that the e-mail inter alia stated that one of the Executive Directors who was a pilot had been evading pre-flight medical. Neither the e-mail nor the attached letter mentioned the name of Captain Kathpalia as the person who had missed the pre flight breath analyzer examination. It is submitted that even in subsequent communication dated 01.02.2017, the petitioner did not intimate the name of the violator.

42. It is admitted in the counter affidavit that though as per the procedure in CAR, violation has to be reported by the organization to DGCA within 24 hours, this violation, which occurred on 19.01.2017, was not reported by Air India to DGCA.

43. It is submitted that subsequently Air India constituted a factfinding inquiry team. On 07.02.2017, Chief of safety of Air India submitted the preliminary report, which inter alia named Captain Kathpalia as the Executive pilot who had missed the Pre-Flight Medical Examination on 19.01.2017 while operating flight AI-174. Air India was directed to put a stop on the flying of Captain Kathpalia i.e. take him off from the flying roster and submit the final report with necessary evidences. The final report was received on 15.02.2017 and immediately on receipt of the final investigation report, DGCA in accordance with Para 8.1 of CAR, issued the order for suspension of ATPL license of Captain Kathpalia for a period of 03 months.

44. With regard to the alleged act of making of the entry in the Pre Flight Medical Examination Register by Captain Kathpalia, after return from Bangalore, it is contended that other alleged acts of omission and commission on part of Captain Kathpalia are administrative in nature and pertain to Air India, which need to be actioned by Air India.

CASE OF RESPONDENT NO. 3, MR. LALIT GUPTA, JOINT DIRECTOR GENERAL (CIVIL AVIATION)

45. Respondent No. 3, Mr. Lalit Gupta, Joint Director General (Civil Aviation), who has been impleaded as a respondent by name, adopted the stand of DGCA. In addition, in his short affidavit, contended that he, on behalf of DGCA, has taken action in accordance with the provisions of CAR in his official capacity.

46. It is contended that there is uniformity in action taken by him in all such cases of defaults and offences committed by the pilots and the cabin crew. He has relied upon several orders of the year 2016 to show that in similar circumstances, similar action has been taken.

47. It is further submitted that Section 18 of Act saves any act done in good faith under the Act and lays down that 'No suit, prosecution or other legal proceeding shall lie against any person for anything in good faith done or intended to be done under this Act'.

STAND OF RESPONDENT NO. 4 AIR INDIA

48. Air India in its counter affidavit has objected to the locus standi of the Petitioner to question the action taken by Air India against Captain Kathpalia for missing the Pre-flight Medical Examination. It is contended that, the Petitioner is neither directly nor indirectly affected by any of alleged commissions and omissions on part of Air India, and cannot challenge or accuse Air India for the actions taken by it against the conduct of Captain Kathpalia in missing the PreFlight Medical Examination.

49. It is contended that the petition is not maintainable as it fails to disclose violation of any legal right. It is contended that Air India, being the national carrier for several years, is equally concerned with flight safety.

50. It is contended that Air India is not involved in the selection process of Director (operations), and the selection to the said post, is independently deliberated upon at the highest level in the Government of India, including an approval of the Appointments Committee of the Cabinet.

51. It is contended that the decision to initiate or not to initiate disciplinary proceedings depends upon the subjective satisfaction of the employer, which in turn is dependent upon the facts and circumstances of a particular case, and gravity of misconduct. It is contended that such subjective satisfaction cannot be put to objective scrutiny before the Court. It is contended that the records maintained by Air India reflect that initiation of disciplinary action is not a standard practice in each and every case, where the pilot misses the Pre-Flight Medical Examination, and is resorted to only in peculiar situations and disciplinary proceedings are initiated only when circumstances so warrant, and not otherwise.

52. It is contended that a Public Interest Litigation would not be maintainable in Service law cases. Reliance is placed on the judgment of the Supreme Court of India in BHOLANATH MUKHERJEE & OTHERS VERSUS RAMAKRISHNA MISSION VIVEKANANDA CENTENARY COLLEGE & OTHERS (2011) 5 SCC 464.

53. It is contended that Captain Kathpalia has admitted to missing the Pre-Flight Medical Examination on account of the fact that prior to the concerned flight, he got held up in a meeting with the officials of DGCA, and therefore, by the time he reached the airport, there was insufficient time to conduct the Pre-Flight Medical Examination, as the process requires considerable time. It is contended that in these circumstances, it was not thought expedient to initiate disciplinary proceedings.

54. It is contended that as a matter of practice, duties are assigned to a pilot according to roster and in every flight duty cycle, the pilot is bound to take a Pre-Flight Medical Examination before the flight of that sector begins. In every flight duty cycle, only one Pre-Flight Medical Examination is required to be done at the place where the flight commences operations, notwithstanding the fact that in return journey the flight number may be different.

55. It is contended that as per CAR, Pre-Flight Medical Examination is mandatory and as matter of practice, Pre-Flight Medical Examination/breath analyzer examination for a pilot is carried out only once a day for domestic sectors i.e. the first flight on that particular date. Subsequently, the pilot can operate two or three flights, without Pre-Flight Medical Examination on the same date involving different sectors, unless the pilot comes out of the airport premises in between the flights.

56. With regard to the contention of the petitioner regarding falsification of official records and criminal intimidation, it is contended that the same are seriously disputed and contested questions of facts and that there can be no judicial review on matters involving seriously disputed questions of fact. It is contended that the allegation regarding manipulation is absolutely cryptic and vague and the petition fails to make good as to what those manipulations are and who is responsible for the same.

57. It is further contended that the allegations of criminal intimidation/falsification of official records/ forgery are inconsequential and immaterial, as inquiry into the incident has already taken place, and DGCA has taken action on the report of Air India.

CASE OF RESPONDENT NO. 2 – CAPTAIN ARVIND KATHPALIA

58. Captain Kathpalia in his counter affidavit has also contended that Public Interest Litigation is not maintainable in a service matter. Only a non-appointee can assail the legality of appointment procedure and the same cannot be challenged by an Association. Reliance is placed on the Judgment in GRIJESH SHRIVASTAVA & OTHERS VERSUS STATE OF MADHYA PRADESH & OTHERS; (2010) 10 SCC 707.

59. It is further contended that it is for the disciplinary authority to decide as to whether it wants to suspend its employees or not and no one except the disciplinary authority can decide as to whether an enquiry is required to be initiated against its employee or not. A stranger to the dispute cannot pressurize or dictate to the disciplinary authority as to how it has to manage its employees.

60. It is submitted that the petitioner by the present petition is seeking to challenge the appointment of Captain Kathpalia and the only way it could be done is by filing a petition seeking a writ of quo warranto. Reliance in placed on HARI BANSH LAL VERSUS SAHODAR PRASAD MAHTO & OTHERS; (2010) 9 SCC 655.

61. With regard to missing the Pre-Flight Medical Examination, it is contended that he missed the Pre-Flight Medical Examination before flying from Delhi to Bangalore, due to unforeseen circumstances and oversight. It is submitted that he was under work pressure, having left pressing office work and a meeting at DGCA Headquarters, he proceeded straight to the airport from DGCA / Air India Safdarjung office. He reported at the Flight Dispatch office at Terminal 3 and his actions were in good faith, out of concern for not delaying the flight in public interest and to avoid inconvenience to the travelling public.

62. It is contended that though he missed the breath analyzer examination before the flight due to the oversight, however, the doctors on duty were also responsible for the lackness because if he had forgotten to take the said examination, it was the responsibility of the doctors to have called him to take the examination. This, it is contended, has been the practice in the past. In the past, if a pilot had forgotten to take the examination, the doctors used to call the pilot before the flight could take off.

63. With regard to post flight breath analyzer examination, it is contended that a post flight examination at a transitory station is not a common procedure, however, even if the same was to be done it was for Air India to have conducted the same at Bangalore and it is not as if he had refused to undergo the same. Had he been asked to take the said examination, he would have certainly taken the same.

64. It is contended that a pre-flight breath analyzer examination is only done once as a deterrent before the duty cycle as a crew may be flying multi-sector flight and it is not possible to take a breath analyzer examination before every flight. Even otherwise, once a pilot takes off from his place of original flight, he remains in the cockpit until the same is completed at its final destination. Even as per the normal practice, the examination is only taken once and not before every flight in the sector.

65. It is further contended, by Captain Kathpalia, that when he missed the pre-flight breath analyzer examination, he made himself available for the post-flight examination. However, the doctor asked him to fill in his details in the Register and told him that the examination was not required and therefore, based on the assurance given by the doctor, he did not take the post-flight examination and after making the entries in the Register went away. He submits that this is visible in the CCTV footage and thus, the allegations of forgery in the Register are without any basis.

66. It is submitted that the version of the said doctor is not at all reliable for the reason that it can be clearly seen in the CCTV footage that he had made himself available for the post-flight breath analyzer examination and at no place is it visible that he had refused to take the said examination. Rather the CCTV footage itself shows the doctor indicating to him to make the entry in the Register and handing over the same to him. If it was a case of refusal, the doctor should have immediately informed the authorities rather than waiting for the enquiry to have taken place. It is further submitted that the said action shows doubtful integrity of the doctor and the statement of the doctor cannot be relied upon. It is submitted that the CCTV footage shows the doctor tapping on the page where the doctor asks him to sign and later on, the statements have been changed. He submits that it is a case of entrapping.

67. It is contended that Para 8.1 of CAR clearly lays down that if any crew member fails to take the pre-flight breath analyzer examination their license is required to be suspended for a period of three months. In line with CAR, his license was suspended for a period of three months. It is submitted that he has already filed an appeal against the said order before the Competent Authority, which is still pending.

68. It is further contended that the Disciplinary Authority has the power to decide as to how it wants to deal with its employee and as to what punishment is to be given. It is submitted that all pilots who were similarly situated to Captain Kathpalia were given the same punishment.

69. Reliance is placed on the judgment in CHIEF EXECUTIVE OFFICER, KRISHNA DISTRICT COOPERATIVE CENTRAL BANK LIMITED & ANOTHER VERSUS K HANUMANTHA RAO & ANOTHER (2017) 2 SCC 528 to contend that while exercising the power of judicial review, the courts do not sit as appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority.

70. Further reliance is placed on the judgment in V. RAMANA V. A.P. SRTC, (2005) 7 SCC 338 to contend that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. It is submitted that the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision itself.

ANALYSIS AND DECISION

71. Respondent Air India and Captain Kathpalia have objected to the Maintainability of the present petition. The objection raised is that a Public Interest Petition would not lie in a service matter. )BHOLANATH MUKHERJEE (Supra) and GRIJESH SRIVASTAVA (Supra) The petition is also objected on the ground that the move to challenge the appointment of Captain Kathpalia to the Board of Air India could only be done by way of a petition seeking the writ of Quo Warranto (HARI BANSH LAL (Supra) and the petitioner, being an association and not a person eligible to be appointed, is not competent to file such a petition.

72. The objections are misplaced. The petitioner has clearly stated that it have not filed the present petition in public interest but has filed the petition for the purposes of maintaining institutional integrity. The petitioner has also candidly admitted that it is also not seeking the relief of Quo Warranto.

73. However, as the petition is not in the nature of a public interest petition and the petitioner also does not seek the relief of quo warranto, it would not be open to the petitioner to then indirectly seek to challenge the proposed move of Air India and Union of India to appoint Captain Kathpalia as a Director on the Board of Air India.

74. Though arguments have been made about the proposed appointment of Captain Kathpalia as a Director on the Board of Air India, however, there is no prayer impugning the said action except a general prayer seeking a writ of prohibition thereby restraining DGCA from appointing Captain Kathpalia to any post until a final enquiry report or in the alternative to quash such appointment, if already made.

75. Such a prayer would does not lie in the facts of the present case as DGCA is not the appointing authority and is not contemplating to appoint Captain Kathpalia to any post. The appointment to the Board of Air India, it is contended, is deliberated up to the highest level in the Government of India including the Appointments Committee of the Cabinet.

76. Further, as contended by the Petitioner itself that it is neither seeking nor is entitled to seek the relief of Quo Warranto, the proposed appointment of Captain Kathpalia to the Board of Air India cannot be examined in this petition. The said issue is left open to be examined and determined in an appropriate petition, if so filed.

77. Since the petition also raises the issues of maintenance of institutional integrity and flight safety, the examination in this petition is restricted to the conduct of Captain Kathpalia, the interpretation and application of CAR and the action taken by DGCA and Air India in view of the lapses that have come to light.

78. To resolve the controversy, it would be expedient to refer to the introductory paragraphs of CAR, which give the rationale as to why the CAR has been issued. The Introductory paragraphs read as under:

'1. INTRODUCTION

1.1 It is a well-known fact that even when the blood alcohol levels are zero in the body, there could be some effect of hangover, which is mainly due to congeners. These congeners may take 15 to 18 hours to get dissipated and may produce ill effects for up to 36 hours depending upon the amount of alcohol consumed. Even 12 hours after a bout of drink, when blood alcohol level remains zero, there is decrement in task performance. Alcohol present in body even in small quantities jeopardises flight safety on several counts and is likely to adversely affect an aviator well into the hangover period.

1.2 Alcohol also interferes with the enzymatic cellular process or oxidation, causes hypoxia and reduces individual’s tolerance with increase in altitude. It is known that a low alcohol blood level between 30 mg% to 50 mg% disturbs the sensor-motor, visual and cortical reaction. Consumption of alcohol results in significant deterioration of psychomotor performance and decreases the amount of mental capacity available to deal with many essential tasks involved in the conduct of safe flight. Should an emergency occur in-flight, the crew member under the influence of alcohol is not capable of dealing with the problem.

1.3 Two ounces of whiskey raises the alcohol level to 50 mg. The amount of alcohol in a can of beer is approx. the same as in a single mixed drink. Wine, champagne, ale and other alcoholic beverages have same effects as liquor, though the concentration of alcohol varies from one beverage to the other.

1.4 Therefore, in the present state of our know ledge, the level of blood alcohol compatible with safe flying is ‘Zero’, which is also recommended by ICAO. It is equally important to intensify the educational programme for crew members regarding the inherent dangers of flying after consumption of alcohol.

1.5 This Civil Aviation Requirement lays down the procedure to be followed for the breath-analyzer examination of the crew members for consumption of alcohol and actions to be taken by the operators. It also dwells on the procedure to be followed by the authorities concerned in the event of an accident.

1.6 This CAR is issued under the provisions of Rule 24 read with Rule 133A of the Aircraft Rules, 1937 for information, guidance and compliance by all concerned.

***** ***** *****

79. The rationale given in CAR, for implementing it, is that even when the blood alcohol levels are zero in the body, there could be some effect of hangover due to congeners, which may take 15 to 18 hours to get dissipated and may produce ill effects for up to 36 hours depending upon the amount of alcohol consumed. Even 12 hours after a bout of drink, when blood alcohol level remains zero, there is decrement in task performance. Alcohol present in body even in small quantities jeopardises flight safety on several counts and is likely to adversely affect an aviator well into the hangover period.

80. Alcohol inter-alia reduces individual’s tolerance with increase in altitude. A low alcohol blood level between 30 mg% to 50 mg% disturbs the sensor-motor, visual and cortical reaction. Consumption of alcohol results in significant deterioration of psychomotor performance and decreases the amount of mental capacity available to deal with many essential tasks involved in the conduct of safe flight. Should an emergency occur in-flight, the crew member under the influence of alcohol is not capable of dealing with the problem. Thus, CAR stipulates that the level of blood alcohol compatible with safe flying is ‘Zero’.

81. CAR has been issued under Rule 24 read with Rule 133 A of the Aircraft Rules 1937 (hereinafter referred to as the Rules). Rule 24 stipulates 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. (underlining supplied)

82. Regulation 2 of CAR defines Pre-flight Breath-analyzer Examination as 'Examination conducted on crew member before departure of a flight to measures alcohol in his/her exhaled air so as to determine the concentration of alcohol in the blood.'

83. Regulation 2 of CAR defines Post-flight Breath-analyzer Examination as 'Examination conducted on crew member after arrival of a flight to measures alcohol in his/her exhaled air so as to determine the concentration of alcohol in the blood.'

84. The Safety Regulations stipulated by CAR are as under:

4. SAFETY REGULATIONS

4.1 As per the provision of Rule 24 of the Aircraft Rules, ‘no person acting as, or carried in aircraft for the purpose of acting as pilot, commander, navigator, engineer, cabin crew or the other operating member of the crew thereof, shall have taken or used any alcoholic drink, sedative, narcotic, or stimulant drug preparation within 12 hours of the commencement of the flight or taken or use any such preparation in the course of the flight, and no such person shall, while so acting or carried, be in 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.’

***** ***** *****

4.3 The operator/crew member/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 well as outside India.

4.3.1 For all scheduled flights originating from India, each flight crew and cabin crew shall be subjected to pre-flight breath-analyzer examination.

***** ***** *****

4.3.4 In case of flying training institutes, instructors and student pilots undertaking solo flying shall undergo preflight breath-analyzer examination before first flight of the day.

4.3.5 In case of diversion of flights, due to unforeseen circumstances, to an airport where facility for pre-flight breath-analyzer examination is not available, the flight crew and cabin crew shall undergo post-flight breathanalyzer examination at first landing.

85. The safety regulation 4.1 reiterate Rule 24 and stipulate that no person acting as, or carried in the aircraft for the purpose of acting inter alia as a pilot should have taken or used any alcoholic drink, sedative, narcotic, or stimulant drug preparation within 12 hours of the commencement of the flight or in the course of the flight. It inter alia stipulates that no such person while acting as pilot etc. be in a state of intoxication or have detectable blood alcohol or be in a state in which by reason of his having taken inter alia any alcoholic 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.

86. Under regulation 4.3 the operator, crew member and maintenance personnel have been obliged to ensure that there is no contravention of Rule 24 of the Rules, by conduct of breath-analyzer examination before operation of flights in India as well as outside India. Regulation 4.3.1 mandates that for all scheduled flights originating from India, each flight and cabin crew is to be subjected to pre-flight breath-analyzer examination. Regulation 4.3.5 mandates that in the case of diversion of flight, due to unforeseen circumstances, to an airport where facility for pre-flight breathanalyzer examination is not available, the flight and cabin crew shall undergo post-flight breath-analyzer examination at first landing.

87. Regulation 4.3.4 mandates that in case of flying training institutes, instructors and student pilots undertaking solo flying shall undergo pre-flight breath-analyzer examination before first flight of the day.

88. Reading of regulation 4.3.1 shows that it is mandatory for each flight crew and cabin crew to be subjected to pre-flight breathanalyzer examination prior to each flight. Regulation 4.3.5 makes an exception that if a flight is diverted due to unforeseen circumstances to an airport where the pre-flight breath-analyzer examination is not available, then the crew is to undergo the post-flight breath-analyzer examination.

89. The exception in 4.3.5 makes it clear that prior to every flight a pre-flight breath-analyzer examination is mandated. This negates the submission of the respondents that pre-flight breath-analyzer examination is required to be taken only once during the flight duty cycle. This is further clear from Regulation 4.3.4 which lays down the condition for the flying training institutes. It specifically stipulates that in cases of flying training institutes the instructors and pilot have to take the pre-flight breath-analyzer examination before first flight of the day.

90. DGCA, while prescribing CAR, has consciously carved out an exception, to taking the pre-flight breath-analyzer examination before each flight, for the instructors and pilots of flying training institutes. No such exception has been carved out for the pilots etc. operating other flights. If the intention was to stipulate a pre-flight breathanalyzer examination only prior to the first flight in the entire duty cycle, the CAR would have stipulated so, but it does not.

91. Regulation 4.3.1 subjects each flight crew to pre-flight breathanalyzer examination. Flight time in respect of, inter alia, an aeroplane has been defined to means the total time from the moment the aeroplane first moves for the purpose of taking off until the moment it finally comes to rest at the end of the flight. The note clarifies that 'Flight time' as defined is synonymous with the term 'block to block' time, or 'chock to chock' time in general usage, which is measured from the time an aeroplane first moves for the purpose of taking off until it finally stops at the end of the flight.

92. However, the stand of DGCA shows that DGCA has implemented CAR so as to ensure that the pre-flight breath-analyzer examination is taken only once prior to the commencement of the flight duty cycle. This as explained on behalf of DGCA has been done so as to ensure that there is no delay in the departure of flights. It is further contended that the since the crew, during the flight turnaround time, does not leave the sterile area and there is no possibility of consumption of alcohol.

93. Before this submission of DGCA is analysed, it would be expedient to spell out the facts as they emerge from the records.

93.1 On 19.01.2017, Captain Kathpalia was to operate the flight AI – 174, Delhi to Bengaluru.

93.2 Dr Manoj was the medical officer on duty in the PreFlight Breath Analyzer examination room. No Post-flight Breath Analyzer examination is carried out in the said medical room.

93.3 Captain Kathpalia before coming to the Airport attended a meeting at the DGCA Headquarters.

93.4 Captain Kathpalia came to the Briefing Room prior to boarding the flight. The Briefing room is near the medical room.

93.5 After the briefing, Captain Kathpalia did not go to the medical room and boarded the flight.

93.6 Captain Kathpalia thereafter operated the flight without undergoing the Pre-Flight Breath Analyzer examination.

93.7 Dr. Manoj informed Mr. Asija, the Flight Dispatcher about Captain Kathpalia having missed the Pre-Flight Breath Analyzer examination. This information was given prior to the flight landing at Bengaluru.

93.8 When the flight landed at Bengaluru, Mr. Asija informed Captain Kathpalia, about him having missed the PreFlight Breath Analyzer examination.

93.9 Captain Kathpalia remained in the sterile area at Bengaluru and thereafter operated flight AI-173 from Bengaluru to New Delhi on the same night. The return flight departed Bengaluru after a gap of 57 minutes.

93.10 Captain Kathpalia did not take the Post-Flight Breath Analyzer Examination either at Bengaluru or at Delhi on his arrival in New Delhi, after operating flight AI-173.

93.11 After landing back in Delhi, Captain Kathpalia went to the Pre-Flight Breath Analyzer examination room.

93.12 Dr Manoj was no longer on duty and Dr Nitin was on duty at that time.

93.13 Captain Kathpalia made an entry in the Pre-Flight Breath Analyzer examination register. The entry was made at the top of all entries that the other crew members for Flight AI-174 (Delhi to Bengaluru) had made at the time of taking the Pre-Flight Breath Analyzer examination.

93.14 Since Dr Manoj was not on duty at that time, there are no counter signatures of the Doctor in the Pre-Flight Breath Analyzer examination register against the entry of Captain Kathpalia.

93.15 No information, about Captain Kathpalia having missed the Pre-Flight Breath Analyzer examination, as is mandated by CAR, was given by any officer of Air India to DGCA.

93.16 The petitioner association informed DGCA on 30.01.2017 but did not disclose any name. The name surfaced only on 07.02.2017.

93.17 Captain Kathpalia was off-rostered on 07.02.2017.

93.18 Action was not taken by DGCA between 30.01.2017 and 07.02.2017 because the e-mail did not mention the name of Captain Kathpalia as the person who had missed the breath analyzer examination. The name surfaced on 07.02.2017, when the Chief of safety of Air India submitted the preliminary report, which inter alia named Captain Kathpalia.

93.19 The final report was received by DGCA on 15.02.2017 and immediately on receipt of final investigation report, DGCA in accordance with Para 8.1 of CAR, issued the order for suspension of ATPL license of Captain Kathpalia for a period of 03 months.

93.20 With regard to the making of the entry in the Pre Flight Medical Examination Register by Captain Kathpalia, after return from Bangalore, DGCA’s stand is that the said acts of omission and commission on part of Captain Kathpalia are administrative in nature and pertain to Air India, which need to be actioned by Air India.

93.21 The stand of Air India with regard to, the making of the entry in the Pre Flight Medical Examination Register by Captain Kathpalia after return from Bangalore, is that the allegations of criminal intimidation/falsification of official records/ forgery are inconsequential and immaterial, as inquiry into the incident has already taken place, and DGCA has taken action on the report of Air India.

93.22 The CCTV footage of the medical examination room is verified by DGCA only on sample basis and that also when a complaint is received.

93.23 In respect of similar violations, where the pilots skipped the Pre Flight Medical Examination prior to operating a flight and did not take the post Flight Medical Examination and operated an onward flight and/or a return flight while remaining in the sterile area, DGCA has treated the same as a single violation and imposed the punishment of suspension of ATPL for a period of three months.

94. Rule 8 of CAR reads as under:

8. ACTION ON POSITIVE EXAMINATION

8.1 Any crew member that tests examinations pre-flight breath-analyzer examination positive for the first time/refuses to undergo the pre-flight breath-analyzer examination/refuses to undergo the pre-flight breathanalyzer examination second time upon tested positive during the first examination/operates the aircraft without undergoing pre-flight breath-analyzer examination / attempt to evade the pre-flight breath-analyzer examination by leaving the airport premises shall be kept off flying duty and their license/approval suspended for a period of three months.

8.2 In case of a repeat violation of the provisions contained in Para 8.1 of this CAR, the license/approval of the crew member shall be suspended for a period of three years.

95. Rule 8.1 of CAR prescribes the punishment, of suspension of license for a period of three months, for the first violation i.e. testing positive for the first time at the pre-flight breath-analyzer examination, evading, or missing the same. Rule 8.2 stipulates that in case of a repeat violation the period of suspension shall be three years.

96. As per the petitioner, Captain Kathpalia is liable for the punishment under rule 8.2. This is premised on the submission that the first violation took place when he operated the flight from Delhi to Bengaluru and the repeat violation took place when he operated the flight from Bengaluru to Delhi after being informed by the Dispatcher.

97. The stand of DGCA is that the pre-flight breath-analyzer examination is taken only once prior to the commencement of the flight duty cycle. Even where the pilot operates multiple flights during the duty cycle, he does not need to undergo the breath-analyzer examination, provided, he remains in the sterile area.

98. On the first blush, this contention on the part of DGCA seems appealing, however when examined in light of the very object and rationale for which CAR has been issued i.e. flight safety, it loses its sheen.

99. This liberal interpretation, that pre-flight breath-analyzer examination is required only once prior to the first flight, may hold good in cases where the pilot has taken the pre-flight breath-analyzer examination prior to the first flight and does not leave the sterile area thereafter, till the completion of the flight duty cycle but when the pilot misses or skips the initial test, how can such a pilot take shelter behind such a liberal interpretation, more so in a case where the pilot is informed by the dispatcher that the pilot has missed the pre-flight breath-analyzer examination.

100. The stand of DGCA is that the flight, which Captain Kathpalia was operating was a single flight in as much as it had same aircraft i.e. VT-ANX Flight No. AI-174 Sector Delhi to Bengaluru with Captain Kathpalia and Capt. Dinglay as flight crew, the flight departed Bengaluru after a gap of 57 minutes. The return flight from Bengaluru to Delhi was also the same aircraft VT-ANX Flight No. AI-173 Sector Bengaluru to Delhi.

101. This stand cannot be accepted in view of the definition of Flight time, which means the total time from the moment the aeroplane first moves for the purpose of taking off until the moment it finally comes to rest at the end of the flight. 'Flight time' is synonymous with the term 'block to block' time, or 'chock to chock' time in general usage, which is measured from the time an aeroplane first moves for the purpose of taking off until it finally stops at the end of the flight. Though Captain Kathpalia flew the same aircraft but even as per DGCA the flight numbers were different i.e. AI – 174 (Delhi to Bengaluru) and AI – 173 (Bengaluru to Delhi).

102. A practice that is not in conformity with the statutory provision cannot be given effect to and a wrong practice cannot possibly modify what naturally and logically follows from the language of the Statute. (SETH BALGOPAL DAS (Supra) Hardship / inconvenience caused to an individual cannot be the basis for altering the plain meaning of the statutory provision. (ROHITASH KUMAR (Supra)

103. Even though, the interpretation of DGCA is not a plausible interpretation, but the action of the DGCA in treating the offence committed by Captain Kathpalia as one offence and awarding the punishment of only suspension of his ATPL for three months does not warrant any interference.

104. DGCA has consistently, in all similar cases in the past, been treating such multiple flights for the purpose of CAR as a single flight. Consistently DGCA has applied CAR in the manner that a pilot has to undergo the pre-flight breath analyzer examination only once in his flight duty hours. As per DGCA, there is no requirement for the crew to undergo pre-flight breath analyzer examination at transit station for any flight, on the premise that during the entire period, the crew would remain in sterile environment and remain engaged in post flight and pre flight duties of the aircraft. It is of the view that if such an offence were to be treated as a second repeat violation then all airlines would be grounded because that would require getting the breath analyzer examination done after every flight, which would considerably delay the flight.

105. As held above, this interpretation may be plausible in cases where the Pilot has taken the pre-flight breath-analyzer examination prior to the first flight and does not leave the sterile area thereafter, until the completion of the flight duty cycle. However, when the Pilot misses or skips the initial test, such benefit cannot be granted to such a Pilot.

106. Even though it would not be appropriate for DGCA to reopen the past cases including that of Captain Kathpalia but certainly DGCA must in the future application of CAR take into account the above observations.

107. It is clarified that the above observations with regard to the punishment of suspension of ATPL for three months awarded to Captain Kathpalia are without prejudice to the appeal filed by Captain Kathpalia against the said punishment.

108. Now coming to the lapse on the part of Air India.

109. Rule 6.9 of CAR stipulates that 'All the breath-analyzer examination positive cases shall be promptly reported but not later than 24 hours of occurrence to the concerned Regional Air Safety Offices of the DGCA and Director of Air Safety (HQ)'.

110. The officers of Air India, who were obliged, by CAR, to immediately bring it to the notice of DGCA about the infraction failed to do so.

111. Admittedly, the concerned Doctor was aware of Captain Kathpalia having missed the pre-flight breath-analyzer examination and he informed the Flight Dispatcher prior to the flight landing at Bengaluru. The Flight Dispatcher is stated to have informed Captain Kathpalia. The infraction was not reported to DGCA by any of the officers of Air India. DGCA became aware only on receipt of a complaint from the petitioner association.

112. Apart from the infraction on the part of Captain Kathpalia in missing the pre-flight breath-analyzer examination and making an entry in the pre-flight breath-analyzer examination register after landing back from Bengaluru, there has also been a lapse on the part of the officers of Air India, who were responsible to bring it to the notice of DGCA.

113. Record does not show that any action has even been initiated by Air India to identify and fix responsibility on the officer(s) who were responsible and failed to immediately bring it to the notice of the DGCA, about the infraction on the part of Captain Kathpalia.

114. Though, it would not be appropriate for DGCA to reopen past cases, including that of Captain Kathpalia, apart from missing the preflight breath-analyzer examination, there is another allegation against Captain Kathpalia, of fabricating record and making an entry in the pre-flight breath-analyzer examination register after returning from Bengaluru and ante dating the same, which requires to be looked into.

115. Admittedly, no enquiry has been conducted or action taken with regard to the said act, either by DGCA or by Air India. The stand of DGCA is that the said acts of omission and commission on part of Captain Kathpalia are administrative in nature and pertain to Air India, which need to be actioned by Air India. On the other hand, the stand of Air India is that the allegations of criminal intimidation/falsification of official records/ forgery are inconsequential and immaterial, as inquiry into the incident has already taken place, and DGCA has taken action on the report of Air India.

116. Both DGCA and Air India have not taken any action on the premise that the other is responsible to take the action. The stand of Air India that the allegations of criminal intimidation/falsification of official records/ forgery are inconsequential and immaterial cannot be countenanced.

117. It is not denied by Captain Kathpalia that he did not undergo the pre-flight breath-analyzer examination. It is also not denied that he did not make an entry in the register prior to operating the flight. It is admitted that the entry was made in the pre-flight breath-analyzer examination register after returning from Bengaluru and ante dated. Captain Kathpalia also did not take any post-flight breath-analyzer examination. The only defence raised is that it is a case of entrapment by the Doctor. The Doctor is alleged to have handed over the register to Captain Kathpalia and pointed out where to sign.

118. Can an officer, who himself is responsible for enforcing compliance of CAR by all, be permitted to state that he was not aware of what he was doing and signed merely on the asking of a doctor. However, it is not for this court at this stage to opine on the defence of Captain Kathpalia and it would be subject matter of the enquiry that DGCA and Air India hold in the matter

119. This action of Captain Kathpalia acquires serious proportions in view of the very purpose of CAR as noticed above i.e. flight safety and safety of passengers, who put their lives in the hands of the pilots.

120. As noticed above, Dr Manoj was on duty when the flight AI – 174 left Delhi. When Captain Kathpalia returned from Bengaluru, the doctor on duty was not Dr Manoj, as the duty had changed and it was Dr Nitin, who was then on duty. As Dr Nitin was not on duty at the time of departure of AI – 174 (Delhi – Bengaluru Flight), he could not have counter signed in the Pre-Flight Breath Analyzer Examination Register.

121. Captain Kathpalia made an entry in the register above the entry of the other crew members for flight AI – 174 as if he had taken the Pre-Flight Breath Analyzer Examination. Since Dr Manoj was not on duty, he could not counter sign it then. If Dr Manoj had counter signed the Register on a later date, no one would have come to know about the infraction by Captain Kathpalia. Since no on informed DGCA, if Dr Manoj had antedated his counter signatures no one would have even got to know about the offence.

122. Dr. Manoj in one of his statements has stated that Captain Kathpalia missed two Pre-Flight Breath Analyzer Examination one on 19.01.2017 and the other on 22.01.2017 and he later counter signed the entry of 22.01.2017 on a later date thinking it to be the entry of 19.01.2017. DGCA, however on examination of CCTV, has found that Captain Kathpalia took the Pre-Flight Breath Analyzer Examination prior to operating the flight on 22.01.2017 but Dr. Manoj did not countersign the entry at that point of time. These facts go on to show that an entry can be made and countersigned on a later date without it being noticed by anyone. It is an admitted position that CCTV footage of the medical examination room is verified by DGCA only on sample basis.

123. No one reported the incident for over 11 days and had the petitioner also not brought it to the notice of DGCA and Air India, no one would have come to know about the same.

124. The gravity of the situation is further compounded by the fact that Captain Kathpalia had earlier held the post of Executive Director (Operations) and had been instrumental in making other pilots and crew aware that CAR was mandatory. He himself had been responsible for ensuring compliance with CAR in the interest of Air Safety. The gravity of the offence is increased, when the very person whose job is to ensure compliance of the mandatory provisions, himself violates the same and not only does he violate the mandatory provisions but makes a false entry in the register to cover up his lapse.

125. This incident highlights the loophole in CAR, whereby the mandatory requirement of CAR can easily be avoided in case of collusion between the Doctor on duty and the pilot.

126. Both DGCA and Air India, thus need to examine the issue and take remedial steps. The consequences of such an action can

Please Login To View The Full Judgment!

be drastic. Such an action cannot be lightly brushed aside completely, without the disciplinary authority applying its mind to it. 127. The disciplinary authority is therefore liable to apply its mind and take appropriate action. The authority cannot refuse to look into such a conduct or ignore it. The stand of Air India is that DGCA has already applied its mind and taken action on the report. On the other hand, the stand of DGCA is that it is for Air India to take action. The sequitur is that neither of the two have even bothered to even look into it and take any action. Such a result cannot be countenanced. 128. In view of the facts that have come to light from the conduct of Captain Kathpalia, the Doctor on duty, the officers of Air India, DGCA would be required to have a relook into the interpretation and functioning of CAR to ensure that there is no possibility, in the future, of anyone circumventing the mandatory requirement of the Pre-Flight Breath Analyzer Examination with impunity. 129. Further, as neither Air India nor DGCA has examined the conduct of Captain Kathpalia in making an entry in the Pre-Flight Breath Analyzer Examination register after having landed back from Bengaluru, without having undergone the Pre-Flight Breath Analyzer Examination, the Competent Disciplinary Authority is required to enquire into the conduct of Captain Kathpalia and take action in accordance with law. 130. The Reliance placed by Learned Counsel for Captain Kathpalia on the judgment in CHIEF EXECUTIVE OFFICER, KRISHNA DISTRICT COOPERATIVE CENTRAL BANK LIMITED (Supra) to contend that while exercising the power of judicial review, the courts do not sit as appellate authority and the decision qua the nature and quantum is the prerogative of the disciplinary authority is not applicable in the facts of the present case. It is not a case where the disciplinary authority has applied its mind and arrived at a decision. In the present case, as noticed above, neither Air India nor DGCA have examined the conduct of Captain Kathpalia with regard to making an entry in the Pre-Flight Medical Examination Register and antedating the same. The Disciplinary authority has not even conducted an enquiry and taken a decision. 131. The alleged plea that the records maintained by them reflect that initiation of disciplinary action is not a standard practice in each and every case, where the pilot misses the Pre-Flight Medical Examination, and is resorted to only in peculiar situations and disciplinary proceedings are initiated only when circumstances so warrant, and not otherwise, does not in any manner help the case of Captain Kathpalia. 132. In the present case, there are two infractions by Captain Kathpalia, one is, missing the Pre-Flight Breath Analyzer Examination and the other is, making an entry in the Pre-Flight Breath Analyzer Examination register and antedating the same. With regard to missing the Pre-Flight Breath Analyzer Examination, action has been taken by DGCA in terms of the past precedence. Though, as noticed above, it may not have been a correct application of CAR, but at the same time, as the same has been consistently applied so, it does not warrant any interference or direction for any disciplinary action. 133. However, the second infraction i.e. making an entry in the PreFlight Breath Analyzer Examination register and antedating the same, has not been examined and has very serious repercussion and as such cannot be ignored, and calls for an appropriate disciplinary enquiry. 134. Further reliance is placed on V. RAMANA (Supra) to contend that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards and the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The said judgment is also not applicable in the present case. It is not a case where the disciplinary authority has applied its mind and taken a decision. In this case, the disciplinary authority has refused to even look into such a serious matter. 135. Allegations have been made against Respondent No. 3 i.e. Mr. Lalit Gupta, the Joint DGCA, with regard to the action taken by him, against Captain Kathpalia, in discharge of his official duties. 136. First of all, Section 18 of the Act grants immunity from any legal proceedings for any act done in good faith under the Act. Secondly, the Petitioner has not been able to show any bias or malafides on his part or any preferential treatment having been given to Captain Kathpalia. The Punishment imposed on Captain Kathpalia by him is consistent with the stand taken by him in respect of all other cases of similar nature where the pilots missed the Pre-Flight Breath Analyzer Examination. Accordingly, I do not find any infraction on his part, warranting any direction against him. 137. In view of the above, the Writ Petition is disposed of in the following terms: (i) the issue with regard to the proposed appointment of Captain Kathpalia to the Board of Air India is not being examined in this petition and is left open to be examined and determined in an appropriate petition, if so filed; (ii) the action of the DGCA in treating the offence committed by Captain Kathpalia as one offence and awarding the punishment of only suspension of his ATPL for three months does not warrant any interference. It is clarified that the observations with regard to the punishment of suspension of ATPL for three months awarded to Captain Kathpalia are without prejudice to the appeal filed by Captain Kathpalia against the said punishment; (iii) the Disciplinary Authority is directed to conduct a disciplinary enquiry in the conduct of Captain Kathpalia with regard to making an entry in the Pre-Flight Medical Examination Register and antedating the same and to take appropriate action in accordance with law; (iv) Air India is directed to identify and fix responsibility on the officer(s) who were responsible and failed to immediately bring the infraction on the part of Captain Kathpalia to the notice of the DGCA, and thereafter to take appropriate action in accordance with law; (v) Both DGCA and Air India, are directed to examine the interpretation and functioning of CAR to ensure that there is no possibility, in the future, of anyone circumventing the mandatory requirement of the PreFlight Breath Analyzer Examination, with impunity; (vi) DGCA is further directed to take into account the observations in this judgment, with regard to the interpretation and application of CAR, and consider whether any amendment is required in CAR to ensure that the objects for enacting CAR are achieved. 138. There shall be no orders as to Costs. 139. Dasti under signatures of court master.
O R