Bombay High Court
Ramdas Marg vs Union Of India on 12 June, 2013
Author: V.M. Kanade
Bench: V. M. Kanade, R.P. Sondurbaldota
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(WP2407.2011)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2407 OF 2011
SAURABH P. LOKHANDE, )
aged 29 years, adult, Indian )
inhabitant having his address )
at 34, Juhu Vikrant Samrath )
Ramdas Marg, J.V.P.D. Scheme, )
Juhu, Mumbai - 400 049
ig ) .... Petitioner.
V/s
1. UNION OF INDIA, )
Through the Secretary, Ministry )
of Civil Aviation, Government of )
India, Rajeev Gandhi Bhavan, )
Safdarjung Airport, )
New Delhi - 110 003 )
)
2 DIRECTOR GENERAL OF CIVIL AVIATION )
Govt. of India, Civil Aviation Department)
Opp: Safdarjung Airport, )
NEW DELHI - 110 003. ) ...Respondents
Mr. Mohan Bir Singh i/b MBS & Co. for the Petitioner.
Mr. Gautam Ankhad i/b Mr. D.H. Shah for Respondents.
CORAM: V. M. KANADE &
SMT R.P. SONDURBALDOTA, JJ.
DATE: 12TH JUNE, 2013
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(WP2407.2011)
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondents.
2. Rule. Rule is returnable forthwith. Respondents waive service. By consent of the parties, Petition is taken up for final hearing.
3. By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking appropriate writ, order or direction for quashing and setting aside the impugned order dated 09/05/2011 passed by Respondent No.2. By the said impugned order, Respondent No.2 -
Director General of Civil Aviation was pleased to suspend the License of the Petitioner with immediate effect by exercising the power vested in him under section 19(b) sub-rule (3) of the Aircraft Rules, 1937 (For short "the said Rules")
4. Brief facts which are relevant for the purpose of deciding this Petition are as under:-
5. Petitioner was issued a Commercial Pilots License sometime in November, 2007 by the Republic of Philippines, Department of Transportation and Communication, Air ::: Downloaded on - 27/08/2013 20:45:32 ::: 3/25 (WP2407.2011) Transport Office, Pasay City, Metro, Manila. Petitioner, thereafter, intended to also get a license from the Republic of India and, therefore, he applied for Commercial Pilots License. Under the Aircraft Act, 1934 (For short "the said Act") and the said Rules framed thereunder, it was obligatory on the part of the Petitioner to appear for certain examination conducted by the concerned Department and only after complying with the said formalities which are prescribed under the said Act and the said Rules, he was entitled for the license.
6. The case of the Petitioner is that accordingly he applied for license sometime in 2008 and filled-up the form after passing the relevant examination and mentioned the details of the examination for which he had appeared and passed and also other information which was to be filled-in in the said prescribed form and, thereafter, after scrutinizing the said application and the documents, the Petitioner was issued the Commercial Pilots License (CPL) bearing No.6684 on 24/07/2008. Thereafter, he had to undergo training and after completing that training he was appointed as a trainee pilot by Air India Charters Ltd. The said license, thereafter, was renewed every year. However, it is the case of the Petitioner that suddenly on 09/05/2011, by the impugned order, the said license was suspended and it was alleged that the Petitioner had obtained the said license on the basis of ::: Downloaded on - 27/08/2013 20:45:32 ::: 4/25 (WP2407.2011) forged documents.
7. The grievance of the Petitioner is that, as required under the Rules, neither show-cause notice was issued nor any opportunity was given to the Petitioner to submit his say in respect of the allegations made against him. It is therefore contended that the said order was illegal since it was in breach of the principles of natural justice and contrary to the procedure which has been laid down under the said Rules.
Petitioner, therefore, challenging the said order.
has filed this Petition
8. Affidavit-in-reply has been filed by Respondents in which it is contended that since the order which was passed under the provisions of Rule 19(b)(3) was in public interest, it was not necessary to hold any inquiry and the Respondent No.2 - Director General of Civil Aviation had power to suspend the license without issuing any show-cause notice to the Petitioner. It is contended in the affidavit-in-reply that the Petitioner had obtained the license on the basis of the forged documents.
9. Petitioner filed his affidavit-in-rejoinder and denied the said contentions. The learned Counsel for the Petitioner firstly submitted that apart from there being breach of principles of natural justice, Respondent No.2 has passed the ::: Downloaded on - 27/08/2013 20:45:32 ::: 5/25 (WP2407.2011) impugned order without assigning any reason whatsoever and even on that ground the said order was liable to be set aside. He then submitted that the only allegation against the Petitioner as can be seen from the affidavit-in-reply was that the information which was given by the Petitioner in his application was not correct and on that ground it was contended that the said documents were forged. It is submitted that, in fact, though the first page and last pages were in the handwriting of the Petitioner, the two pages on which the said information was given was not in his handwriting. He, therefore, submitted that the Respondents ought to have given him the opportunity by giving inspection of the original application form on which reliance was placed by the Respondents. He submitted that the said procedure not having been followed, the Respondent No.2 could not have come to the conclusion that the documents were forged. Our attention was invited to various Rules under the said Act viz rule 39A, 19 and also the guidelines which have been framed for the purpose of giving guidance to DGCA Officers/Inspectors about the statutory provisions to be complied with by the Industry and procedure to be followed for their enforcement. It is contended that under Rules 39A before cancellation of license, an opportunity of being heard ought to have been given and after holding the inquiry, the license could be cancelled. It is submitted that even if the provisions of Rule 19 are taken into consideration, reasons ::: Downloaded on - 27/08/2013 20:45:32 ::: 6/25 (WP2407.2011) have to be recorded in writing and it was incumbent upon the Director to have stated in the impugned order the material on the basis of which the impugned order was passed.
10. On the other hand, the learned Counsel appearing on behalf of the Respondents vehemently urged that the license of the Petitioner was suspended in public interest under Rule 19(3)(b) since it was brought to their notice that the Petitioner had obtained the said license on the basis of forged mark-sheet. Drawing our attention to the declaration which was made by the Petitioner, the learned Counsel for the Respondents submitted that in the said declaration the Petitioner had mentioned that he had passed the written examination which was conducted by the competent authority in April, 2006. It is contended that in the said document, the Petitioner had mentioned that he had passed the said examination in 2006 whereas, in fact, the Petitioner had failed in the said examination. He relied on the Chart which showed that the Petitioner had failed in the said examination which was held in 2006. It is submitted that since the Petitioner had made a false declaration and had given the false information his license was liable to be cancelled/suspended in public interest and the Director was justified in passing the order under Rule 19(b)(3) of the said Rules framed under the said Act.
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11. When a query was made by this Court as to whether the original document was scrutinized and whether the copy of the said original document was annexed to the affidavit-in- reply, we were informed that since the said original document was in the custody of CBI or Senior-most Officer of the concerned Police Station who was conducting the investigation in respect of the complaint which was filed against the Petitioner, the said document could not be produced. The learned Counsel appearing on behalf of Respondents also was not in a position to point out whether the Petitioner had submitted a fabricated mark-sheet to the authorities at the time when he filed the application.
12. After having heard both the learned Counsel at length, in our view, before deciding the rival submissions, it would be necessary to take into consideration the relevant provisions of the said Rules framed under the said Act. Rule 39A of the said Rules speaks about the procedure which is required to be followed by the Licensing Authority for the purpose of debarring a person permanently or temporarily from holding a license. It would be relevant, therefore, to see the said provisions of Rule 39A which reads as under:-
"39A. Disqualification from holding or obtaining a licence.-(1) Where the ::: Downloaded on - 27/08/2013 20:45:33 ::: 8/25 (WP2407.2011) licensing authority is satisfied, after giving him an opportunity of being heard, that any person-
(a) is habitually intemperate in the use of alcohol, or is an addict of narcotics, drugs and the like, or
(b) is using, has used or is about to use an aircraft in the commission of a cognizable offence contravention of these rules, or or in
(c) has, by his previous conduct as member of the crew of an aircraft, shown that he is irresponsible [in the discharge of his duties connected with his employment] or is likely to endanger the safety of the aircraft or any person or thing carried therein, or of other aircraft or persons or things on the ground, or
(d) is a habitual criminal or has been convicted by a Court in India for an offence involving moral turpitude or an offence which amounts to heinous crime, or ::: Downloaded on - 27/08/2013 20:45:33 ::: 9/25 (WP2407.2011)
(e) has obtained the licence, rating, aircraft type rating or extension of aircraft type rating, or renewal of any of them by suppression of material information or on the basis of wrong information, or
(f) has authorisedly varied or tempered with the entered in a licence or rating.
particulars the licensing authority may, for reasons to be recorded in writing, make an order disqualifying that person for a specified period from holding or obtaining a licence.
(2) The Central Government may debar a person permanently or temporarily from holding [any licence or rating mentioned in] rule 38 if in its opinion it is necessary to do so in the public interest.
(3) Upon the issue of any order under sub-
rule (1) or sub-rule (2), the person affected, if he is the holder of a licence, shall forthwith surrender his licence to the ::: Downloaded on - 27/08/2013 20:45:33 ::: 10/25 (WP2407.2011) licensing authority, if the licence has not already been surrendered. The licensing authority shall keep the licence until expiry of the period for which the person has been disqualified or debarred, or if he has been debarred permanently, for a period of 5 years."
Perusal of the said Rule 39A clearly establishes that the opportunity of being heard has to be given to any person against whom the allegation as envisaged under section 39A(a),(b) and (c) is made and, thereafter, the Licensing Authority may, for reasons to be recorded in writing, pass the order disqualifying that person from holding or obtaining a license. The said rule, therefore, clearly envisages that before a person is disqualified from holding or obtaining a license, firstly an opportunity of being heard has to be given to that person and, thereafter, licensing authority has to pass a reasoned order. The rule, therefore, clearly contemplates that principles of natural justice have to be complied with and the licensing authority has to arrive at a subjective satisfaction on the basis of material which is placed before it and, thereafter, the authority has to give reasons why it feels that license should be suspended or cancelled. In the present case, the licensing authority has neither issued show-cause notice to the Petitioner nor given any personal ::: Downloaded on - 27/08/2013 20:45:33 ::: 11/25 (WP2407.2011) hearing and, lastly, it has not even referred to the documents which are alleged to be forged and also has not given reasons as to on what basis it arrived at a subjective satisfaction. The Apex Court in Jaswant Singh vs. State of Punjab and Ors1 has held that it was incumbent on the Respondents to disclose to the Court the material in existence on the date of passing of the impugned order in support of the subjective satisfaction recorded by Respondent No.3 in the impugned order. The Apex Court in this context observed in para 5 as under:-
"5.............. This is clear from the following observation at p.270 of Tulsi Ram's case.
"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail."
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by the third respondent it is contended that the 1 1991 Vol-1 CLR 1 ::: Downloaded on - 27/08/2013 20:45:33 ::: 12/25 (WP2407.2011) appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats etc., when he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors . This allegation is based on his alleged activities of Jullunder on April 3, 1981 reported by SHO/GRP, Jullundur.
That report is not forthcoming. It is no one's contention that the said SHO was threatened.
The third respondent's counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained."
In our view, ratio of the said judgment would squarely apply to the facts of the present case and, as such, in our view, the impugned order is liable to be set aside.
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13. The learned Counsel appearing on behalf of the Respondents has submitted that the said order has been passed by the Director General of Civil Aviation under sub- clause (b) of sub-rule (3) of Rule 19 of the said Rules. He submitted that under the said sub-clause, DGCA is authorized to pass an order without holding any inquiry if it feels that suspension is necessary in the public interest. He submitted that the DGCA was, therefore, justified in not issuing any show-cause notice or holding any inquiry or giving personal hearing to the Petitioner. Perusal of the impugned order dated 09/05/2011 passed by the DGCA clearly reveals that the said impugned order has been passed under Rule 19(3)(b) and it had further directed the Petitioner to surrender his license under Rule 19(5). It is, therefore, necessary to see the said Rule 19 of the said Rules which reads as under:-
"19. Cancellation, suspension or endorsement of licences, certificates, [authorisation and approval ]. - (1) Where any person is convicted of a contravention of, or failure to comply with, these rules in respect of any aircraft, the Central Government may cancel or suspend any certificate of ::: Downloaded on - 27/08/2013 20:45:34 ::: 14/25 (WP2407.2011) registration granted under these rules relating to that aircraft.
(Emphasis supplied) (2) The Central Government may cancel or suspend any certificate granted under these rules relating to air worthiness of an aircraft or a Type Certificate of an aircraft component, or item of equipment, if the Central Government is satisfied that a reasonable doubt exists as to the-
(a) safety of the aircraft or the type of aircraft; or
(b) airworthiness of the aircraft component or item of equipment in respect of which a Type Certificate exists, and may vary any condition attached to any such certificate if the Central Government is satisfied that reasonable doubt exists as to whether such conditions afford a sufficient margin of safety.
(3) If the Central Government is satisfied ::: Downloaded on - 27/08/2013 20:45:34 ::: 15/25 (WP2407.2011) 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) suspend any certificate, rating or licence, [authorisation and approval] or any or all of the privileges of any certificate, rating or licence, [authorisation and approval], for any specified period;
(b) suspend any certificate, rating or licence, [authorisation and approval] during the investigation of any matter;
(c) cancel any certificate, rating or licence [authorisation and approval]; or
(d) endorse any adverse remarks on any certificate, rating or licence, [authorisation and approval].::: Downloaded on - 27/08/2013 20:45:34 ::: 16/25
(WP2407.2011) (3A) Where any person contravenes or fails to comply with the rules relating to the operation of Microlight Aircraft, the Central Government may cancel the certificate, rating or licence, authorisation and approval granted, issued, authorised or approved as the case may be, under these rules.
(4)The Central Government may cancel or vary any particulars entered by it or under its authority in any licence or certificate, [authorisation and approval] granted or in any journey log book issued under these rules.
(5) The Central Government may require the holder of any licence, certificate, [authorisation and approval] or other document granted or issued under these rules, or any person having possession or custody of such licence, certificate, [authorisation and approval] or document, to surrender the same to it for cancellation, suspension, endorsement or variation and any person failing to comply ::: Downloaded on - 27/08/2013 20:45:34 ::: 17/25 (WP2407.2011) with any such requirement within a reasonable time shall be deemed to have acted in contravention of these rules.
Note.-The decision of the Central Government as to whether any ground constitutes sufficient ground for suspension of any certificate, rating, licence, authorisation or approval in the public interest under the foregoing sub- rule shall be final and binding."
Perusal of sub-rule (1) of Rule 19 clearly indicates that in the event of failure to comply with the rules in respect of aircraft, registration granted relating to that aircraft can be cancelled or suspended. Sub-rule (2) of Rule 19 also clearly states that if the certificate is granted relating to airworthiness of an aircraft or Type Certificate of an aircraft and if the Central Government is satisfied that a reasonable doubt exists as to the safety of the aircraft or the type of aircraft or airworthiness of the aircraft etc. then procedure under sub-
clause (b) of sub-rule (3) of Rule 19 has to be followed and the said license of the aircraft can be suspended forthwith. Secondly, the said rule can be applied in a case where any person is convicted of a contravention of, or failure to comply with these rules in respect of any aircraft and, in that case, ::: Downloaded on - 27/08/2013 20:45:34 ::: 18/25 (WP2407.2011) the said license of the aircraft can be cancelled. In the present case, Petitioner has not been convicted for contravention of, or failure to comply with the rules and, secondly, the said rule pertains to certificate of airworthiness of an aircraft and, therefore, in our view, there is a clear non-
application of mind on the part of DGCA in passing the impugned order.
14. Similarly, the Manual which has been issued for the purpose to explain the procedure which is required to be followed also clearly contemplates under Clause 12.7 that suspension is the most severe administrative sanction the DGCA can impose. Clause 12.7 of the Enforcement Policy and Procedures Manual reads as under:-
"12.7 Suspension Procedure The suspension of aviation document for contravention of a provision of the Aircraft Act/Rules is the most severe administrative sanction the DGCA can impose. Suspension action is taken where continued use of the document would create a hazard to aviation safety and judicial action is either not available or inappropriate.::: Downloaded on - 27/08/2013 20:45:34 ::: 19/25
(WP2407.2011) Where an aviation document has been suspended, the person to whom it was issued shall return it to the DGCA and shall not exercise the privileges attached to that document until it is restored by the DGCA. Suspensions for contravention are punitive in nature and are in effect for a specified time period.
The following procedure may be followed for suspension of an aviation document:-
(i) The concerned officer who has power of suspension, shall determine the appropriate duration of suspension on the basis of the recommendation of the investigator.
(ii) In order to meet the ends of natural justice, a Notice of Suspension (show cause notice) to the alleged offender shall be required to be issued, whether or not it is legally binding and obligatory. The charge is required to be mentioned in the Notice and appropriate time should be given to ::: Downloaded on - 27/08/2013 20:45:35 ::: 20/25 (WP2407.2011) submit his explanation. The standard format for show cause notice is given in Appendix. The Notice shall contain a clear description of the offence and sufficient details of the contravention so the alleged offender can identify the incident or incidents constituting the contravention. A copy of investigation report may be enclosed along with the notice.
(iii) With the Notice, the competent officer shall enclose an information sheet describing the informal meeting procedure and offering the alleged offender an opportunity to discuss the sanction.
(iv) The concerned competent officer shall serve the Notice on the alleged offender personally or send it by registered mail. The date appearing on the Notice shall be the date on which the Notice is to be served or sent.
(v) Where the alleged offender requests a ::: Downloaded on - 27/08/2013 20:45:35 ::: 21/25 (WP2407.2011) review by the DGCA and applies for a stay of suspension pending its decision, the concerned officer shall not oppose the application unless it appears that a threat to aviation safety would result. In such a case, the concerned officer or his designate shall present the case to the DGCA.
(vi) Where the alleged offender does not ask for a review by the DGCA within thirty days and then fails to deliver the suspended document, after giving due consideration for delay in the mail, charges shall be laid against the alleged offender. Prior to laying charges, the document holder should be contacted to confirm the situation.
(vii) Suspended period may be endorsed on the aviation document."
15. Though the said Clause 12.7 is in the nature of guideline and strictly speaking does not have statutory force, the said guidelines have been prepared by the Department in order to assists its Officers and the said guidelines have been laid ::: Downloaded on - 27/08/2013 20:45:35 ::: 22/25 (WP2407.2011) down for the purpose of explaining the reason why Rules have been framed and, therefore, these guidelines are supplementary and in addition to the Rules which have been framed and they are explanatory in nature though the same have no statutory force. Therefore, the said guidelines have to be followed by the concerned Department. The said guidelines also lay down the procedure to be followed for suspension of aviation document. The said Clause 12.7 also lays down that a show-cause notice has to be issued before the inquiry is to be held. Even the guidelines which are mentioned in Clause 12.7 have not been followed before passing the impugned order.
16. Apart from that, it is interesting to note that DGCA has not produced the so-called forged mark-sheet which has been allegedly submitted by the Petitioner. It is also an admitted position that though the criminal complaint was filed against the Petitioner and others in the year 2011, so far, no charge-sheet has been filed though two years have passed. As of today, therefore, Respondents have not been in a position to produce the said alleged forged mark-sheet which was submitted by the Petitioner. It is an admitted position that the petitioner had passed the test in the year 2008 and, thereafter, had applied for getting the license. If that was so, there was no occasion for the Petitioner to have mentioned in the application that he had passed the ::: Downloaded on - 27/08/2013 20:45:35 ::: 23/25 (WP2407.2011) examination in 2006 since admittedly the Petitioner would not have got any special advantage by so mentioning that he had passed the examination in 2006 when he had preferred an application in 2008 after passing the said subjects in 2008. The date of the application also is of 24 th May 2008.
Apart from that, the Petitioner has categorically come out with the case that two pages of the said documents are not in his handwriting. It was the duty of the Respondents to have produced the said original documents. The learned Counsel for the Respondents submitted that this Court may now call for the original record from the concerned Police Station. In our view, this submission cannot be accepted. The burden was on the Respondents to establish by producing the material before this Court to satisfy the conscience of this Court that the said two pages were in the Petitioner's handwriting. The Respondents could have separately obtained the said documents and produced the same before this Court. We, therefore, do not think it fit and proper now to call for the original application which was filed by the Petitioner.
17. It is also contended by the learned Counsel appearing on behalf of the Respondents that the Petitioner had challenged the order of termination which was passed by the Air India Charters Ltd in Writ Petition No.1685 of 2011 and while rejecting the said Writ Petition, this Court observed ::: Downloaded on - 27/08/2013 20:45:35 ::: 24/25 (WP2407.2011) that no fault can be found with the order of termination since the Petitioner had tendered a fabricated document. It is submitted that the said finding is now binding on the Petitioner. This submission cannot be accepted since the Petitioner has now challenged the order which has been passed cancelling his license on the allegation that the documents which were submitted were forged. The said observation of the Court, therefore, was of prima facie nature and was made in the context of the Petition which was filed challenging the order of termination and, therefore, such observation cannot be held to be final or binding for deciding the issue which has been raised in this Petition.
18. In our view, the impugned order, therefore, is clearly illegal, it being passed without following the procedure prescribed under Rule 39A and Rule 19 of the said Rules does not apply for the cancellation of license of a Pilot. The impugned order on this ground alone will have to be quashed and set aside.
19. Petition is allowed in terms of prayer clause (a).
Needless to state that upon the said order being quashed, license which has been given to the Petitioner is restored. Respondents, however, have liberty to follow the procedure laid down under Rule 39A of the said Rules and give hearing to the Petitioner and, thereafter, pass a reasoned order. The ::: Downloaded on - 27/08/2013 20:45:36 ::: 25/25 (WP2407.2011) said inquiry if it is to be held should be completed expeditiously within a period of two months. Petitioner shall cooperate with the Respondents in the event such a show-
cause notice is issued to him. The license be returned to the Petitioner within a period of four weeks from today. Rule is made absolute accordingly.
20. Petition is disposed of.
(SMT R.P. SONDURBALDOTA, J.) (V.M. KANADE, J.) B.D. Pandit ::: Downloaded on - 27/08/2013 20:45:36 :::