Madras High Court
Indian Commercial Pilots Association ... vs Union Of India (Uoi) Rep. By Its ... on 14 June, 2006
Equivalent citations: (2006)4MLJ289
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
ORDER Elipe Dharma Rao, J.
1. Aggrieved by the Civil Aviation Requirement (CAR) dated 1-9-2005 issued by the Director General of Civil Aviation, second respondent herein, requiring the Commercial Pilots to give a notice period of at least six months to their employer indicating their intention to leave the job and the proposed penal action under Rule 39A(2) for non-compliance of the above said requirement, the Indian Commercial Pilots Association has filed the present writ petition, seeking a Writ of Certiorari to quash the said circular.
2. The members of the petitioner-association are Commercial Pilots, holding the Commercial Pilot's Licence issued by the Central Government, working with the Indian Airlines. The second respondent issued the impugned circular dated 1-9-2005 requiring the commercial pilots working for any Air Transport Undertaking to give a notice period of at least six months to their employer indicating their intention to leave the job and shall not refuse to undertake the flight duties assigned to them. The impugned circular also indicated that failure to comply with the above requirement may lead to action against them inter alia under Rule 39A(2) of the Aircraft Rules, 1937.
4. Learned counsel for the petitioner argued that the directions contained in the impugned circular are ultra vires the powers conferred on the second respondent under Rule 133(A) as the said authority has no rule-making power or authority under the Aircraft Act and/or the Aircraft Rules to issue such directions. According to the learned Counsel, by executive instructions, the second respondent cannot impose any new conditions for disqualifying a pilot from holding a licence and that it could be done only by the Central Government by amending the relevant rule.
5. Learned counsel further submitted that the impugned circular is contrary to the principles of natural justice and arbitrary inasmuch as the impugned circular does not provide for any procedure to determine whether the pilots are guilty; secondly, Clause 3.4 of the impugned circular indicates the penalty of debarring a pilot permanently or temporarily from holding any licence or rating under Rule 39A(2) of the Aircraft Rules, which rule does not provide for any opportunity of hearing before imposing the punishment; thirdly, the impugned circular does not provide for any procedure to determine the guilt of the pilots; and fourthly, there is no right of appeal against the order passed under Rule 39A(2).
6. It is next contended by the learned Counsel that since Rule 39A(2) is in penal nature, it should be strictly construed. The opinion of the Central Government must be based on actual facts and circumstances of each case in order to determine whether the debarring of a pilot from holding a licence or rating permanently or temporarily is in public interest.
7. Learned counsel also submitted that there is no involvement of public interest for issuing the impugned circular. Learned counsel submitted that safety of the passengers are directly dependent upon the pilots and if a pilot is forced to work for a airliner against his wishes till the expiry of six months' notice period, it could result in mental stress and the pilot not being in a proper frame of mind to undertake the flights thereby endangering the safety of the passengers.
8. Learned counsel further submitted that the impugned circular is redundant as there is already in existence a circular dated 25-2-1993 barring the air transport undertakings from employing a serving employee of any of the national air-carrier without obtaining No Objection Certificate from the present employer. In fact, if any penal action is to be taken, it could be only against the undertaking which employs pilots in violation of the circular dated 25-2-1993. The impugned direction though appears to protect the interests of all airline undertakings in the country, in fact it is tailored to suit the convenience of the national airline undertakings. The reason of "public interest" in issuing the impugned direction is doubtful and questionable.
9. Learned Solicitor General appearing for the respondents submitted that the members of the petitioner-association, who are employees of the Indian Airlines, are governed by the service regulations of the corporation. Regulation 13(b) of the service regulations stipulates that no employee shall resign from the employment of the corporation without giving six months notice in writing to the corporation of his/her intention to resign. The validity of the said regulation was upheld by the Supreme Court in Chairman & Managing Director, Indian Airlines v. Binod Kumar Sinha and also by the Bombay High Court and Madras High Court.
10. Learned Solicitor General further submitted that the power provided under Rule 133A is a direct power given to the Director General of Civil Aviation as the regulator of Civil Aviation in the country and therefore he is empowered to issue the impugned direction. The second respondent, as a regulator of civil aviation in the country, is empowered to issue any Civil Aviation Requirement relating to the operation, use, possession, maintenance or navigation of an aircraft flying in or over India or of an aircraft registered in India. A conjoint reading of Sections 5 and 5A can only lead to the conclusion that the impugned circular is not inconsistent with the Aircraft Act or the Aircraft Rules. The impugned circular is in furtherance of the legislative spirit as embodied in Sections 5 and 5A of the Aircraft Act. The second respondent while exercising powers under Rule 133A of the Aircraft Rules exercises such powers as Regulator of civil aviation. As regulating authority, the second respondent is required to oversee all aspects relating to the operation, use, possession, maintenance or navigation of an aircraft. Therefore, the second respondent is empowered to take all necessary measures to protect the interests of the passengers, safety and security of aircrafts. The impugned circular is outcome of a policy decision taken by the Government. The courts have consistently refrained from interfering with policy decisions unless the policy decision is violative of constitutional or legal limits on power. It is submitted that the members of the petitioner-association have no unrestricted fundamental right to fly the aircraft. Their rights are regulated by the provisions of the Aircraft Act and the Aircraft Rules. These regulatory provisions are essential for the safety of the public, passengers and the aircraft. It is submitted that resignation without providing adequate notice to the airline undertakings would result in cancellation of flights, thereby causing inconvenience to the passengers. Sometimes, such an abrupt action on the part of the pilots is in the form of a concerted move, which tantamouts to holding the airline undertaking ransom and leaving the travelling public stranded. This involves public interest. The issuance of the impugned circular is not inconsistent with the Aircraft Act and/or the Aircraft Rules. The second respondent has only reiterated the legal position as enunciated in Rules 39A(2) and 133A of the Aircraft Rules. The pilots have simply been put on notice that non-compliance of the notice period would result in penal action under Rule 39A(2).
11. Heard the learned Counsel for the petitioner and the learned Solicitor General appearing for the respondents.
12. Gone are the days when the civil aviation in the country was under the monopoly of the Government of India and the skies over India and abroad were commercially exploited by the fleets of the aircraft owned and operated by Air India, Indian Airlines, Vayudooth and Pawan Hans, which are statutory corporations owned and managed by the Government of India. The situation has now underwent a complete sea-change. The liberalisation of economic and industrial policies and the privatisation policy of the Government paved way for the private entrepreneurs to enter into almost all the major industrial and commercial fields, including the civil aviation sector, which were hitherto under the monopoly of the Government. There is phenomenal increase in the entry of private airliners in the civil aviation sector, leading to acquisition of more number of aircrafts with state of the art technology. As a natural corollary, currently there is a great demand in the civil aviation sector for the aircraft crews, more particularly the Commercial Pilots having rich and vast experience with more number of flying hours to their credit. Attracted and lured by the pay packages and perks offered by the private airliners, the Commercial Pilots, more particularly those gained rich experience while under the employment of the State-owned airline undertakings, started migrating to private airliners. Such abrupt resignation of the Commercial Pilots paralysed the business operations of the State-owned airline undertakings. This is the present state of affairs in the civil aviation industry. The Government, therefore, felt the compelling necessity of introducing certain regulatory measures to protect the interests of the travelling public. The result was the issuance of the impugned circular by the Director General of Civil Aviation vide Civil Aviation Requirement, Series X Part II, dated 1-9-2005, requiring the Pilots to give a 'Notice Period' of at least six months to their employer indicating their intention to leave the job.
13. Petitioner-association seeks the relief of quashing the impugned circular dated 1-9-2005 issued by the second respondent. The obvious grievance of the members of the petitioner-association is that the notice period of six months, which according to them is too long, and the proposed penal action under Rule 39A(2) for non-compliance of the notice-period come in their way of immediate joining any other airlines of their choice. For deciding the issues raised in this writ petition, it is necessary here to quote the said circular:
Subject: Requirement of 'Notice Period' by the Pilots to the airlines employing them.
1. INTRODUCTION 1.1 It has been observed that pilots are resigning without providing any notice to the airlines. In some cases, even groups of pilots resign together without notice and as a result airlines are forced to cancel their flights at the last minute. Such resignation by the pilots and the resultant cancellation of flights causes inconvenience and harassment to the passengers. Sometimes such an abrupt action on the part of the pilots is in the form of a concerted move, which is tantamount to holding the airline to ransom and leaving the travelling public stranded. This is a highly undesirable practice and goes against the public interest.
1.2 Such an action on the part of pilots attracts the provisions of Sub-rule (2) of Rule 39A of the Aircraft Rules, 1937, which reads as follows:
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.
2. APPLICABILITY 2.1 These Civil Aviation Requirements are applicable to any pilot working for any Air Transport Undertaking as defined in Clause 9A of Rule 3 of the Aircraft Rules 1937.
2.2 This CAR is issued with the approval of the Ministry of Civil Aviation vide their letter No. A2012/08/2005-A dated 1st September, 2005.
3. REQUIREMENTS 3.1 It takes about four months to train a pilot to operate an aircraft used for airline operations, as he has to pass technical and performance examinations of the aircraft, undergo simulator and flying training and has to undertake 'Skill Test' to satisfy licence requirements. Even after this training, the pilot can operate only as a co-pilot. To operate an aircraft as Pilot-in-Command (PIC), he needs to gain experience and undertake 'Skill Test' to fly as PIC of an aircraft, which may take another four months or so. Therefore, it would take more than four months for an airline to replace a trained Pilot-in-Command.
3.2. Pilots are highly skilled personnel and shoulder complete responsibility of the aircraft and the passengers. They are highly paid for the responsibility they share with the airlines towards the travelling public and are required to act with extreme responsibility.
3.3 In view of the above, it has been decided by the Government that any act on the part of pilots including resignation from the airlines without a minimum notice period of six months, which may result into last minute cancellation of flights and harassment to passengers, would be treated as an act against the public interest.
3.4 Pilots, therefore, are required to give a notice period of at least six months to their employer indicating their intention to leave the job and shall not refuse to undertake the flight duties assigned to them. Failure to comply with the provisions of this CAR may lead to action against them inter alia under Sub-rule (2) of Rule 39A of the Aircraft Rules, 1937.
3.5 The Notice Period of six months, however, may be reduced if the airlines employing them provides a No Objection Certificate and accepts their resignation earlier than six months.
The necessity for issuing the impugned circular has been spelt out in loud and clear terms in Clauses 1.1 and 3.1. Though "public interest" appears to be the bottom-line, the impugned circular also aimed at protecting the interests of not only the State-owned airline corporations but also the private airliners as it applies to any pilot working for any Air Transport Undertaking.
14. It is also pertinent here to note that the service conditions of the employees of the Indian Airlines are governed by the Indian Airlines Employees' (Aircraft Engineering Department) Service Regulations, 1959. Regulation 13(b) of the said regulations stipulates that employees of the national airline corporations cannot resign from employment without giving their employer a notice period of six months (originally it was 30 days' period). The notice period was increased probably for the reasons mentioned in Clause 3.1 of the impugned circular. The impugned circular, therefore, only reiterates the service condition stipulated in Regulation 13(b). The circular further emphasised that non-compliance of the notice period may result in debarring a Pilot permanently or temporarily from holding any licence or rating mentioned in Rule 38 if in the opinion of the Central Government to do so in the public interest.
15. Regulation 13(b) and the circular dated 25-2-1993 issued by the Director General of Civil Aviation, imposing a restriction on the private airline undertakings from employing anyone already serving any of the national carriers, viz. Air India, Indian Airlines, Vayudoot and Pawan Hans without obtaining a No Objection Certificate from the employer with whom they are working came up for consideration before the Supreme Court in Chairman & Managing Director, Indian Airlines v. Binod Kumar Sinha 2002 [8] SCC 722. The Supreme Court though upheld the validity of the said circular, left open the question whether Regulation 13(b) was valid or otherwise for being considered in proceedings that may arise hereafter as the Division Bench of the High Court which allowed the writ petition did not deal with the challenge to the validity of Regulation 13(b). The situation is identical in the present writ petition. Here also, the petitioner-association did not challenge the validity of Regulation 13(b), but assails the impugned circular dated 1-9-2005 issued by the second respondent.
The observations made by the Supreme Court in paragraph 13 are as follows:
The arguments on behalf of the writ petitioners are based on Articles 14, 19(1)(g), 16, 21 and 23 of the Constitution only with reference to the implication arising out of the embargo imposed upon the employees of the national carriers that they cannot resign from employment except after a notice of six months as provided for in Regulation 13(b) framed under the Air Corporations Act. If in violation of such conditions, employees of the national carriers can leave their employment and join the employment in any other air service is a matter affecting the operation of the air carriers and, therefore, to give effect to that objective underlying Regulation 13(b) if the circular is issued, we cannot term it to be invalid. If the provision of Regulation 13(b) is valid in law and in violation of which an employee seeks to join employment with an air taxi operator, the restriction in the circular cannot be an infringement of his rights arising under Articles 14, 16, 19(1)(g), 21 and 23 of the Constitution. The argument to the contrary is farfetched because an employee when joins service is subject to certain terms and conditions of service and he cannot quit the employment without giving requisite notice to the employer. But what should be the duration in such circumstances is a matter to be decided in each case depending upon the exigencies, needs or necessities and the essentiality of the service concerned. In the present case, no such exercise has been done by the High Court to find out whether Regulation 13(b) is valid or not. When the validity or scope of that Regulation has not been examined, the impact of the Regulation on the circular also could not be examined. The High Court completely went off the track in examining the broad questions arising under Articles 14, 16, 19(1)(g), 21 and 23 of the Constitution. If a person is in employment he is certainly subject to certain terms and conditions and he can quit his employment under those terms and conditions only which cannot be stated to be violative of Articles 14, 16, 21 and 23 much less Article 19(1)(g) of the Constitution unless on examination such conditions are held invalid.
It was also brought to the notice of this Court that the validity of Regulation 13(b) was challenged before the Bombay High Court in W.P. No. 1288 of 1993 and a Division Bench of the High Court, by order dated 12-7-1993, dismissed the writ petition holding that prescription of six months' notice period was not unreasonable. In this context, it is also relevant to note the observations made by a Division Bench of this Court in its order dated 28-10-2005 in O.S.A. Nos. 114 and 115 of 2005 (Blue Dart Aviation Limited v. Capt. Puneet Shankta):
There is no two opinion regarding the fact that a pilot is a highly specialised skilled person having particular training and it is always difficult for any Airline to immediately replace a Pilot. If a Pilot is allowed to leave a particular Airline even without waiting for the notice period to expire, it would be indeed very difficult for the original employer Airline to make the alternate arrangement, which would inevitably cause certain operations to be suspended thereby causing untold misery and inconvenience to the primary customers, namely the passengers or the cargo operators. Such eventuality, in turn, would tar the image of the Airline and mar its reputation. ... ... ... In such context, a period between 3 and 6 months may be prima facie said to be reasonable.
The Division Bench observed further:
In the above context, it is also essential to note that the defendant in such cases, namely, the Pilot, would not suffer any undue hardship as even though he would be deprived of some higher earning in other Airlines who would be obviously alluring him more financially job, rewarding the salary under the original employer is also not a pittance but is fairly high. The so called financial hardship, in the sense the Pilot would be deprived of higher emoluments is required to be ignored in such matters. At any rate, judicial notice can be taken note of the fact that the salary offered by any of the Airlines is fairly high. The luxury of getting a much higher salary is to be eschewed by the concerned public at least for a reasonable period.
It is stated in Clause 3.1 of the impugned circular that it takes about four months to train a pilot to operate an aircraft used for airline operations, as he has to pass technical and performance examinations of the aircraft, undergo simulator and flying training and has to undertake 'Skill Test' to satisfy licence requirements and that even after this training, he can operate only as a co-pilot and to operate an aircraft as Pilot-in-Command (PIC), he needs to gain experience and undertake 'Skill Test' to fly as PIC of an aircraft, which may take another four months or so. Therefore, it would take more than four months for an airline to replace a trained Pilot-in-Command. Further, there is no universal formula for fixing the notice period. The duration of the notice period may vary depending upon the exigencies, needs or necessities and the essentiality of the service concerned. What is required is a reasonable notice period. Considering the nature of service of the pilots, the training process and the period involved and the number of trained and experienced pilots available in the market, etc., the notice period of six months cannot by stretch of any imagination be termed as unreasonable.
16. The main contention raised by the petitioner-association is that the impugned circular is ultra vires the powers of the second respondent and without jurisdiction. According to the petitioner-association, punishment under Rule 39A(2) can be imposed only by the Central Government if in the opinion of the Central Government it is necessary to impose such punishment in the public interest and it is for the Central Government to decide whether the alleged act of a Pilot was against the public interest. It was further contended the opinion that it is in public interest to debar a pilot from holding the licence should be that of the Central Government alone and it cannot be replaced or substituted by the opinion of the second respondent. The second respondent exceeded his authority in stating the circumstances which would constitute public interest to enable the first respondent to debar a pilot under Rule 39A(2).
17. The above contention of the petitioner-association lacks substance and without any legal basis. Rule 3A of the Aircraft Rules authorises delegation of powers under which any power or duty conferred or imposed by the rules on the Central Government may be exercised or discharged by the Central Government or by any person authorised by it in that behalf. Further, under the scheme of the Aircraft Act and the Aircraft Rules, the Director General of Civil Aviation is vested with regulatory powers under Rule 133A to issue special directions not inconsistent with the Aircraft Act or the Aircraft Rules relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. The power of the Central Government under Rule 39A(2) has been delegated to the second respondent vide notification dated 4-10-1994. It is in exercise of this delegated power, the second respondent has issued the impugned circular. Therefore, it cannot be argued that the impugned circular is ultra vires the powers and jurisdiction of the second respondent.
18. The second contention of the petitioner-association is that the impugned circular is apart from contrary to the principles of natural justice is also arbitrary as there is no right of appeal against the order passed under Rule 39A(2). This argument is stated only to be rejected. It is not known as to how the requirements issued in the impugned circular are in violation of the principles of natural justice. As already stated, the service regulation provides for six months' notice period and the impugned circular only reiterates the said service regulation. It is also stated in Clause 3.5 of the impugned circular that the notice period of six months may be reduced if the airlines employing them provides a No Objection Certificate and accepts their resignation earlier than six months. Further, if any person is aggrieved by an order passed by an officer in exercise of his power conferred on him by the Rules or delegated to him under Rule 3A, he may prefer an appeal to the next higher officer. Therefore, against the order passed by the second respondent under Rule 39A(2), an appeal lies to the Secretary (Civil Aviation). This contention also fails and accordingly it is rejected.
19. It was argued that the requirements given in the impugned circular interferes with the freedom of the pilots to work under a master they choose and as such the impugned circular is against the fundamental rights guaranteed under Articles 14, 19(1)(g), 21 and 23 of the Constitution of India. The argument is wholly incorrect and untenable in law. The Constitution of India does not envisage any absolute and unrestricted fundamental right. The fundamental rights guaranteed by the Constitution of India are subject to certain reasonable restrictions. Therefore, members of the petitioner-association have no unrestricted fundamental right to fly the aircraft and their rights are regulated by the service regulations and the provisions of the Aircraft Act and the Aircraft Rules. The impugned circular, therefore, does not in any interferes with or restricts the fundamental rights of the members of the petitioner-association under Articles 14, 19(1)(g), 21 and 23 of the Constitution of India. This contention is also rejected.
20. It was contended that there is no involvement of "public interest" requiring the issuance of the impugned circular and the alleged "public interest" is doubtful and questionable. As stated already, "public interest" is the bottom-line of the impugned circular. It is clearly stated in the impugned circular the abrupt resignation of pilots, without adhering to the notice period provided in the service regulation for joining private airliners and the resultant adverse consequences faced by the national airline corporations and the hardship and inconvenience caused to the travelling public. To protect the interests of the travelling public and to cast some responsibility on the pilots, the impugned circular was issued. It is the responsibility of the Government to ensure that no inconvenience is caused to the travelling public. In such circumstances, it cannot be stated that no element of "public interest" is involved in the issuance of the impugned circular.
21. A number of case-laws have been cited by the learned Counsel for the petitioner and the learned Solicitor General. In view of the discussions made above, I deem it not necessary to discuss those case-laws in this order.
22. As stated already, by issuing the impugned circular the second respondent, as regulating authority under the Act and the Rules, has only reiterated the six months' notice period stipulated in the service regulations, the consequences of non-compliance of the notice period and the action under Rule 39A(2) and Rule 133A of the Aircraft Rules. Therefore, there is no illegality or irregularity in the act of the second respondent in issuing the impugned circular. Under the scheme of the Act and the Rules, the second respondent is vested with the power and authority to issue such circulars in the interest of the airline corporations as also in public interest.
23. Further, as rightly contended by the learned Solicitor General the power to issue the impugned circular is traceable to Section 133A of the Act which confers the absolute powers on the Director General of Civil Aviation to issue such circular in the interest of the airline corporation as also in public interest. While exercising such powers under Section 133A of the Act, the Director General of Civil Aviation has got powers to issue fresh directions, of course, not inconsistent with the provisions of the Act and the Rules. That apart, fixing of six months period as notice period for a pilot to submit his resignation from service was approved by the Supreme Court in Binod Kumar Sinha case, cited supra, and also by a Division Bench of the Bombay High Court as well as this Court. I can say without any hesitation that the Director General of Civil Aviation is placed on par with the Central Government under Section 5A read with Section 133A of the Act. Under Section 5A of the Act the Central Government could make rules under Regulation 5(2)(g) and this rule-making power was delegated to the Director General of Civil Aviation under Section 5A of the Act. Therefore, in discharge of such delegated powers, the Director General of Civil Aviation has issued the impugned circular under Section 5A read with Section 133A of the Act. Further, the validity of similar circular issued by the second respondent has already been upheld by the Supreme Court and a Division Bench of the Bombay High Court and a Division Bench of this Court, I am unable to appreciate the contentions raised by the learned Counsel for the petitioner to interfere with the impugned circular issued by the second respondent. In view of the above discussions, I am of the opinion that the impugned circular issued by the second respondent does not suffer from any legal infirmity warranting interference by this Court. Needless to mention, it is not as if the impugned circular stipulates strict adherence of six months' period. Under Clause 3.5 of the impugned circular, the authorities may either waive or reduce the notice period of six months, issue the No Objection Certificate and accept the resignation of a pilot earlier than six months. Therefore, the interest of the pilots is well protected under Clause 3.5 and in appropriate cases, the notice period may either be waived or reduced considering the facts and circumstances of the individual cases.
24. The writ petition is liable to be dismissed and, accordingly, it is dismissed. No costs. Connected W.P.M.P. is closed.