Delhi High Court
Jaskaran Singh Rekhi vs Union Of India & Anr. on 21 January, 2021
Equivalent citations: AIRONLINE 2021 DEL 901
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:26.01.2021
12:01:05
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st January, 2021
+ W.P.(C) 10851/2020 & CM APPL.34026/2020
JASKARAN SINGH REKHI ..... Petitioner
Through: Mr. Rajesh Mahindru, Advocate.
(M:9810194135)
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Ms. Anjana Gosain and Ms. Shalini
Nair, Advocate for UOI.
Mr. Ayush Jain and Mr. Tushar
Thakur, Advocates for R-2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done by video conferencing.
2. The Petitioner is a pilot working in Indigo Airlines (hereinafter, "Airlines"). The Petitioner, after being employed by the Airlines submitted his Airport Entry Permit (hereinafter, "AEP") form to the concerned department on 30th September, 2019. At that time, according to the Petitioner, there was no case or complaint pending against him. It is the contention of the Petitioner that on 4th October, 2019, a complaint was registered against him by his cousin sister in Orissa with whom there were property disputes. The police had summoned him and he had answered all the questions of the police, however, he was not provided with a copy of the complaint, the FIR or any other particulars. He was therefore under the impression that no criminal case had been registered against him.
3. Thereafter, on 29th November, 2019, the Petitioner received summons W.P.(C) 10851/2020 Page 1 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 seeking his personal appearance in Court on 20th December, 2019. Even with the summons, no charge sheet or FIR was enclosed. The Petitioner then applied for interim bail and was granted interim bail on 14th January, 2020. Immediately thereafter, i.e., on 18th February, 2020 the Petitioner informed the Airlines of the complaint filed against him in the AEP form. Thereafter, the Petitioner was admitted to regular bail on 27th February, 2020. It was only in March, 2020 that the charge sheet was supplied to him.
4. After obtaining the charge sheet and the bail order, the Petitioner supplied the same to the Bureau of Civil Aviation Security (hereinafter "BCAS"). Further information sought by the BCAS was also supplied by the Petitioner. On 12th June, 2020, the Petitioner received a show cause notice from the BCAS alleging that there was a delay in the Petitioner providing the information relating to the FIR. The Human Resource (hereinafter, "HR") department of the Airlines also issued a warning letter to the Petitioner for the delay in informing the Airlines of the FIR. On 22nd June, 2020, the Petitioner submitted a representation in respect of the said warning letter. However, vide order dated 30th July, 2020, the entry of the Petitioner in the Airport was banned as the AEP was withdrawn. The Petitioner then filed various representations for which he did not receive any positive response. Hence, the present petition has been filed seeking quashing of the BCAS' order withdrawing the AEP issued to the Petitioner.
5. Mr. Mahindru, ld. counsel appearing for the Petitioner submits that the Petitioner did not have any information at the initial stage, either of the FIR or the complaint made by his cousin. He only received a copy of the complaint after bail was granted to him and immediately thereafter, on 18th February, 2020, he disclosed the pendency of the case against him. Ld. W.P.(C) 10851/2020 Page 2 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 counsel further submits that the `Airport Entry Permit (AEP) Guidelines, 2019 for entry into airports/civil enclaves in India (hereinafter, "AEP Guidelines")' which are relied upon by the Respondents were never intimated to the Petitioner and were neither circulated. The Petitioner cannot, therefore, be said to have delayed in supplying the information to BCAS.
6. On the other hand, Ms. Anjana Gosain, ld. CGSC appearing on behalf of the Union of India/BCAS, submits that these guidelines have been circulated to the employees through their employers, in this case, Indigo Airlines. As per these guidelines, the employee has to inform the employer as early as possible. Ld. counsel submits that in view of the fact that the complaint was filed sometime in October, 2019, the submission of the details of the complaint to the Airlines only in February, 2020 would be violative of the guidelines and hence, the impugned order is completely justified.
7. Insofar as the Airlines is concerned, ld. counsel for the Airlines supports the stand of the BCAS that the FIR was lodged on 4th October, 2019 and there was a delay by the Petitioner in informing the Airlines.
8. This Court has considered the matter and also the objections raised by the Respondents. A perusal of the AEP Guidelines shows that the same was introduced in 2019 by the Ministry of Civil Aviation with the intention of regulating entry into airports and to prevent unauthorised entry. The 2019 guidelines were preceded by the guidelines of 1992, 1996 and 2014. The AEP Guidelines of 2019 define the Aerodrome Entry Permit as under:
W.P.(C) 10851/2020 Page 3 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05"5.1 "Aerodrome Entry Permit" means the photo identity card, smart card or temporary permit issued by the Director General (DG), Bureau of Civil Aviation, Ministry of Civil Aviation or any person authorised by the Central Government for entry into the aerodrome or part of an aerodrome. If used in conjunction with an automated access control system, permits may be equipped with electronic or other machine-readable codes to allow entry. The period of validity of an AEP will be from minimum 31 days to maximum 02 years. Any such AEP having a validity of up to 30 days will be classified as TAEP."
9. As per clause 8, the employees of various organizations who are deployed at the airport are issued AEPs to enable them to access different areas of the airport for performing their legitimate functions for the duration of their functional requirement. Apart from employees, other persons may also be required by the airport for functional purposes. One of the pre- requisites for issuance of the AEP is security clearance or approval by security of the programme of the sponsoring company. In case of pilots, the airlines, which forward the applications to the BCAS, have to certify that the employees meet the conditions of eligibility. There appears to be a contradiction in the definition of the AEP as per clause 5.1 and clause 8.2.1. The former stipulates the validity of the AEP for a maximum of two years whereas clause 8.2.1 stipulates a maximum of 3 years. Either way, the Airlines through their authorised signatory submit the application of bona fide employees for issuance of AEP under clause 8.3.3.1. The application is then forwarded by the DGCA to BCAS. The AEP is issued after a police background check. However, there is also an option of conducting the police background check within a maximum period of 30 days after issuance W.P.(C) 10851/2020 Page 4 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 of the AEP. Under clause 10.3, any change in the status of the employee is to be notified by the airlines. Clause 10.3 reads as under:
"10.3 Notification of status change:
Entities shall notify the concerned RD, BCAS in writing when there is a change to any details, such as;
Entity details: Logo Change, Name change,
Address, Status, Contracts and Access
requirements.
Employee details: Name change, Address, Job Title, Criminal Record or Criminal Record and Access requirements."
10. Under clauses 10.4 and 10.5, the BCAS has the power to withdraw the AEP or de-activate it. The said clauses read as under:
"10.4 Withdrawal of AEP/TAEP:
The BCAS reserves the right to withdraw AEP/TAEP after approval from DG, BCAS under the following conditions.
i. If issuing authority is no longer satisfied that the holder is a suitable person to hold an AEP.
ii. If issuing authority is no longer satisfied that the sponsoring entity by whom the AEP holder is employed is reliable and reputable.
iii. If issuing authority is no longer satisfied that the holder has reason to hold an AEP, due to the AEP holder not having an operational requirement to gain access to the SRA for the preceding 60 days. iv. An AEP application has been given without proper care in any particular case.
v. The Entity does not maintain or enforce provision for disciplinary action against W.P.(C) 10851/2020 Page 5 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 its employees.
vi. The Entity has not exercised due care in ensuring that persons employed by or visiting the entity who are holders of TAEP are escorted by holders of AEP.
10. 5 Deactivation of AEP:
i. All entities are to ensure that they have a system in place to notify the concerned RD, BCAS for the temporary deactivation of an AEP. For example; employees who are due to take maternity leave, on long term sick leave or temporary lay-offs.
ii. To reactivate an AEP Authorised signatures are required to notify the concerned RD, BCAS in writing along with any supporting documents. The individual will need to attend the concerned RD, BCAS with their identity documents to have the AEP reissued. iii. In some instances a new background check will need to be carried out in case the deactivation period exceeds one year. Prescribed fee to reissue the AEP will be charged to the entity."
11. The procedure to do the background check is contained in clause 11, where there is responsibility placed on the employer to ensure that adequate pre-employment checks are conducted. Clause 11.1 & 11.6 read as under:
"11.1 Each entity at an airport shall vouch for the valid requirement for each AEP/TAEP prior to its issuance to their employee. It is the employer's responsibility to complete adequate pre-
employment checks or other inquiries to ensure that the individual concerned does not pose a potential threat to the airport. AEPs shall not be issued without such undertaking. Authorised W.P.(C) 10851/2020 Page 6 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 Signatories shall submit the application with documents directly to BCAS with a digital copy to the Airport Operator. They shall verify these documents as mentioned at the aforementioned paras of Acceptance and Verification.
...
11.6 Background checks will be conducted at all the places of the applicant's residence in the previous one year and of his criminal history, if any.
11.12 If a person is found involved in any crime or misuse of the AEP, it shall be the responsibility of the Sponsoring Agency to communicate the same to the issuing authority immediately for cancellation of his/her Aerodrome Entry Permit."
12. Thus, the entire purpose of background checks and details of providing any criminal case is to ensure that the person does not pose a potential threat to the airport. The intention is to ensure that if there is any criminal case against any of the employees, who have the AEP, the information is immediately conveyed to the BCAS through the employer.
13. The facts in the present case show that the Petitioner had filed his application for the AEP on 30th September, 2019. Though he was called by the police officials on 4th October, 2019, a copy of the FIR was received by him for the first time on 14th January, 2020. It was only at the time of getting bail that he is stated to have obtained a copy of the FIR lodged against him. Thereafter he also been supplied the charge sheet. The submission of the Petitioner is that when he was called by the police for questioning in October, 2019, he was not aware if a case was even registered against him.
14. The Petitioner claims he was not aware of the AEP guidelines. The question as to whether the AEP Guidelines were circulated or not would be a W.P.(C) 10851/2020 Page 7 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 question of fact, which cannot be gone into in writ jurisdiction. As per the case of the Petitioner, at least between October, 2019 to January, 2020, he was not informed of the FIR. On 30th September, 2019, the day when the Petitioner filled the AEP form, there was no FIR which was lodged against him. Thus, the information given by the Petitioner in the AEP form cannot be faulted with. The only fault on the part of the Petitioner is that he did not inform the authorities immediately upon acquiring knowledge of the complaint in respect of which he sought interim bail. It is not disputed that the Petitioner informed the authority and Indigo Airlines on 18th February, 2020. This court is of the opinion that the word `immediately' ought to be seen in the context of each case. The petitioner herein has obtained the copy of the FIR in January 2020 and informed the authorities in a month's time. Under such circumstances, the entire career of the Petitioner cannot be put into jeopardy.
15. Copy of the AEP Guidelines have now been supplied to the Petitioner through ld. Counsel. In view of the facts and circumstances of the case, it is directed that the AEP would be re-issued to the Petitioner, subject to the following conditions:
a) The Petitioner shall provide information to the BCAS and Indigo Airlines by the 15th of every alternate month about the status of the complaint case which is pending against him. Along with the said information, he would also supply any Court order which may be passed.
b) Respondent No.1 shall transmit a copy of the AEP Guidelines to the sponsoring entities, contractors and employees and also upload the same within two weeks on its website, so that the existence of W.P.(C) 10851/2020 Page 8 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:26.01.2021 12:01:05 these Guidelines is disseminated to all concerned stakeholders.
16. The AEP of the Petitioner shall be issued within one week from today. On behalf of the Indigo Airlines, it is submitted that immediately upon the AEP being issued to the Petitioner, he would be permitted to join duty.
17. The petition is disposed of in the above terms. All pending applications are also disposed of.
PRATHIBA M. SINGH JUDGE JANUARY 21, 2021/dk/T (corrected and released on 25th January, 2021) W.P.(C) 10851/2020 Page 9 of 9 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:25.01.2021 22:41