Bombay High Court
The Joint Action Committee vs The Director General Of Civil on 14 August, 2008
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar, A.A. Sayed
[1]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1687 OF 2008
1. The Joint Action Committee
of Airline Pilots' Association
of India, having its office
at Indian Airlines Operations
Bldg., Gr. Floor, Domestic
Airport, Vile Parle (East),
Mumbai-400 099.
2. The Indian Commercial Pilots
Association being a trade
union registered under the
provisions of the Trade
Unions Act, 1926 and having
its office situated at
Indian Airlines Operation
Bldg., Gr. Floor, Domestic
Airport, Vile Parle (East),
Mumbai-400 099.
3. The Indian Pilots Guild
being a Trade Union regis-
tered under the provisions
of the Indian Trade Unions
Act, 1926 and having its
office at 602 B. Charmee
Enclave, Near Milan Subway,
Shradhanand Service Road,
Off Western Express Highway,
Vile Parle (East),
Mumbai-400 057.
4. The Society for the Welfare
of India Pilots being a
Society registered under
the provisions of the Indian
Societies Act, 1862 and
having its office situated
at Jet Airways Flight
Despatch, Terminal 1B,
Domestic Airport, Vile
Parle (E), Mumbai-400 099. .... Petitioners
- Versus -
1. The Director General of Civil
Aviation, being an authority
constituted under the provisions
of the Aircrafts Act, 1934
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and having his office at
Opp: Safdurjung Aiport, New
Delhi 110 003.
2. The Union of India,
through the Ministry of Civil
Aviation, Rajiv Gandhi Bhavan,
Safdarjang Airport,
New Delhi 110 003.
3. The National Aviation Company
of India Limited (NACIL) 113
Gurudwara Rakabganj Road,
Airlines House, New Delhi-I.
4. M/s. Jet Airways India Limited,
S.M. Centre, Andheri-Kurla
Road, Andheri (E),
Mumbai-400 059. .... Respondents
Sarvasri K.K. Singhvi, Senior Counsel a/w
Sanjay Singhvi i/b Bennet D'Costa for the
Petitioners.
Sri Gulam Vahanvati, Solicitor General of
India a/w Ms Shehnaz Bharucha & Sri D.A.
Athawale for the Respondent Nos.1 & 2.
Sarvasri Aspi Chinoy, Senior Counsel a/w
S.U. Kamdar, Senior Advocate, Ms Nina
Bhasin and Ms Chhaya Shah for the Respondent
No.3.
Sarvasri C.U. Singh, Senior Counsel a/w
Abhay Kulkarni i/b M/s. Abhay Kulkarni &
Associates for the Respondent No.4.
CORAM: SRI R.M.S. KHANDEPARKAR &
SRI A.A. SAYED, JJ.
DATED: AUGUST 14, 2008
JUDGMENT (Per Sri R.M.S. Khandeparkar, J.):
1. Heard at length Sri K.K. Singhvi, Senior Counsel for the Petitioners, Sri Gulam Vahanvati, Solicitor General of India for the respondent Nos.1 and ::: Downloaded on - 09/06/2013 13:41:51 ::: [3] 2, Sri Aspi Chinoy, Senior Counsel for the respondent No.3 and Sri C.U. Singh, Senior Counsel for the respondent No.4.
2. By the present petition, the petitioners are seeking to challenge the legality and propriety of the circular issued by the respondent No.1 on 29-5-2008 thereby informing the parties that Civil Aviation Requirements, hereinafter called as "the CAR" dated 27-7-2007 has been kept in abeyance and to quash and set aside the said circular.
3. When the matter came up for hearing on admission for the first time on 24-6-2008, this Court (Sri S.B. Mhase and Sri A.A. Kumbhakoni, JJ.) issued rule and reserved the order in relation to the interim relief.
4. On 26-6-2008 a chamber summons came to be taken out by the respondent No.4 herein for intervention in the matter and also to be heard before the pronouncement of order in relation to the interim relief asked for in the matter. However, by the order passed on that day, the respondent No.4 was granted liberty to mention the chamber summons after the pronouncement of order relating to the interim relief.
5. On 1-7-2008 this Court (Sri S.B. Mhase and Sri ::: Downloaded on - 09/06/2013 13:41:51 ::: [4] A.A. Kumbhakoni, JJ.) passed a speaking order in relation to the interim relief and directed as under:
"(1) Pending the hearing and final
disposal of this Writ Petition
the effect, operation and
execution of the decision
reflected by the following
portion of the circular dated
29th May 2008 bearing no.DG/Air
Safety/2008 (Exhibit 'D' to the
petition) issued by the 1st
Respondent, the Director General
of Civil Aviation shall remain
stayed:-
"The competent authority in the
Ministry of Civil Aviation has
decided to keep the CAR-Section
7, Flight Crew Standards, Series
'J', Part III dated 27th July,
2007 in abeyance."
(2) Pending the hearing and final
disposal of this Writ Petition
the effect, operation and
execution of the Circular dated
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2nd June 2008 bearing DG/Air
Safety/2008 (Page 55 of the
petition) issued by the 1st
Respondent, the Director General
of Civil Aviation shall remain
stayed.
(3) Pending the hearing and final
disposal of this Writ Petition
the Section 7, Flight Crew
Standards, Series 'J', Part III
contained in the CARs dated
27.7.2008 shall continue to
operate.
(4) Liberty is granted to both sides
to apply for
variation/modification of this
order on the Respondents
completing the exercise
undertaken for revising the
Section 7, Flight Crew Standards,
Series 'J', Part III contained in
the Civil Aviation Requirements
dated 27.7.2008."
After declaration of the said interim order, there was
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request on behalf of the respondent Nos.1 and 2 as well
as the respondent No.4 for stay of operation of the
interim order. However, the Court was not inclined to
grant the same and the request in that regard was
rejected.
6. The matter was then carried to the Apex Court in SLP (Civil) No.15829 of 2008 by the respondent No.3 herein. The Apex Court by its order dated 10-7-2008 disposed of the said SLP with the following order:
"These two petitions have been filed against an interim order passed by the High Court of Judicature at Bombay.
The matter relates to the Flight Crew
Standards. In the impugned order the
High Court has given certain directions
and stayed the order passed by the
Ministry of Civil Aviation dated 27th
July, 2007. We make it clear that we do not express anything on merits. It is pointed out that the National Aviation Company of India, Jet Airways and other airways were neither heard nor impleaded in the proceeding before the impugned order. The impugned order seriously affects the rights of these parties as ::: Downloaded on - 09/06/2013 13:41:51 ::: [7] they were not heard and they want to be heard in the matter.
We request the High Court to
post these matters in the week
commencing 21st July, 2008 and dispose
of the same at the earliest. Till such
order is passed, the 2nd June, 2008
order passed by the Civil Aviation
Department will be operative which reads as follows:
"In continuation of this office
letter of even number dated 29th
May, 2008, it is clarified that
while keeping in abeyance the CAR
- Section 7, Flight Crew
Standards, Series 'J', Part III
dated 27th July, 2007, the earlier
instructions/guidelines on crew
FDTL/FTL, as contained in AIC 28
of 1992 shall be effective."
National Aviation Company of
India Ltd. and Jet Airways be allowed
to be impleaded as parties before the
High Court in the proceedings and be
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heard in the matter.
Parties are given liberty to
raise their contentions before the High
Court."
7. After the disposal of the SLP, the matter came
up before this Court on 18-7-2008 whereby the
petitioners were directed to carry out the amendment to
join the respondent Nos.3 and 4 as the parties in terms
of the order of the Apex Court in the said SLP, and with the consent of igthe parties the matter was fixed for final hearing after completion of the pleadings on 4-8-2008. Further, the date was extended to 5-8-2008 at the request of the parties on 25-7-2008, and further to 12-8-2008, and that is how the matter has been finally heard.
8. India is one of the contracting States under the Convention in relation to International Civil Aviation signed at Chicago on 7-12-1944 and Section 4 of the said Act enables the Central Government to make rules, inter alia, to implement the Convention relating to International Civil Aviation signed at Chicago including any Annex thereto relating to international standards and recommended practices, as amended from time to time.
The Rule 29C of the Aircraft Rules, 1937, hereinafter ::: Downloaded on - 09/06/2013 13:41:51 ::: [9] called as "the said Rules" enables the respondent No.1 to lay down standards and procedure not inconsistent with the said Act and the Rules made thereunder to carry out the Convention and any Annex thereto. The Rule 133A of the said Rules enables the respondent No.1 to issue CARs not inconsistent with the said Act and the Rules made thereunder.
9. The respondent No.1 is the Director General of Civil Aviation, constituted under the Aircraft Act, 1934, hereinafter called as "the said Act" and is a statutory authority within the meaning of Article 12 of the Constitution of India. The respondent No.1 issued a circular dated 29-5-2008 whereby the earlier CAR dated 27-7-2007 has been sought to be kept in abeyance.
Further, on 2-6-2008 the respondent No.1 issued further order clarifying that in view of supersession of CAR of 27-7-2007, provisions of AIC 28 of 1992 would be effective.
10. The procedure for promulgation of CAR is in terms of Section 1 - General, Series 'A' Part III, dated 13-10-2006. From time to time the respondent No.1 had been accordingly issuing CAR concerning Flight Duty Time Limitations, hereinafter called as "the FDTL", of various crew including pilots. Till the year 2007, FDTL of pilots were governed by Aeronautical Information ::: Downloaded on - 09/06/2013 13:41:51 ::: [10] Circular 28 of 1992, hereinafter called as "the AIC.
Since then many changes have taken place in aircrafts and in the airline industry, the same having become more or less fully computerised. Today 99% of the airline flown do not have either engineers and navigators, which was not the position earlier. New aircrafts have been developed to meet the requirement of ultra-long haul flights involving the duty lasting for number of hours.
For various reasons security measures have also been enhanced all over the world.
11. The circular dated 29-5-2008 issued by the respondent No.1 also makes it known that the Government has appointed a Committee to examine the matter and the term of reference to the Committee have also been fixed while informing that CAR, Section 7, Flight Crew Standards, Series 'J' Part III, dated 27-7-2007 having been kept in abeyance. The petitioners thereupon enquired with the respondent No.1 as to what would be the rules that would govern their flight and flight duty times, in view of the CAR of 27-7-2007 having been kept in abeyance. The respondents responded under the letter dated 2-6-2008 that the earlier instructions/guidelines on crew FDTL/FTL as contained in the AIC 28 of 1992 shall be effective. The petitioner No.1 thereupon addressed a letter making grievance about infirmities in the said circular and requesting for withdrawal of the ::: Downloaded on - 09/06/2013 13:41:51 ::: [11] instructions keeping the CAR in abeyance and further during the interim period to give written clarification as to what FDTL pilots holding Indian DGCA issued licences are required to follow while operating Indian registered aircrafts world-wide. It was also reminded that Rule 42A of the said Act deals only with flying limitations but has no mention of any rest period or weekly off.
12. It is the contention of the petitioners that the circular dated 29-5-2008 has been issued in violation of the guidelines regarding issuance of Civil Aviation Requirements and revisions thereof. The circular was neither displayed on the DGCA website, nor circulated to persons to the persons likely to be affected, nor objections or suggestions were obtained, nor meetings were arranged with the Civil Aviation Industry and, therefore, the same is illegal and unauthorised. Since the conditions for issuing CAR have been laid down, the non-compliance thereof would amount to violation of Articles 14 and 21 of the Constitution of India.
13. It is their further case that there is no automatic revival of AIC 28 of 1992 pursuant to withdrawal of CAR dated 27-7-2007 since the said AIC was not withdrawn by the CAR but by a separate order and, in any case, the AIC 28 of 1992 is outdated and irrelevant.
::: Downloaded on - 09/06/2013 13:41:51 ::: [12]Besides, for revival of AIC 28 of 1992, it would require publication thereof for objection and suggestion, if any, to be filed by the interested parties. No such exercise has been done by the respondents.
14. It is further case of the petitioners that the circular has been issue under pressure from the airline operators who wish to cut down on their expenses in these times of high fuel prices and it is not a coincidence that the circular was issued on the same day on which the price of Aviation Turbine Fuel was hiked.
Though the flight
ig time and the flight duty time
limitations are required to be fixed only on the basis
of crew fatigue, the impugned circular has been issued
for extraneous considerations. The impugned circular
has been issued to maximise the profits of airline
operators by maximising the exploitation of the crew and in the process the air safety has been compromised which may lead even to greater air transport accidents.
15. On the other hand, it is the case of the respondent Nos.1 and 2 that the challenge to the circular is totally premature and by the circular what has been done is merely the said CAR of 27-7-2007 has been put in abeyance and as an interim arrangement till such time the Committee appointed by the Government examines and gives its report in terms of the reference, ::: Downloaded on - 09/06/2013 13:41:51 ::: [13] AIC 28 of 1992 has been made operative. The impugned circular is a result of policy decision by the Government/DGCA. The respondents are regulatory and competent authorities under the said Act and the Rules framed thereunder to take decisions relating to complex orders of policy concerning aviation industry of the country as a whole and keeping in view the flight safety, interest of the flying public and commercial and operational interest and concern of the airlines, the decision has been taken to keep the CAR of 27-7-2007 in abeyance. The petitioners have not disclosed any particulars in relation to the wild allegations made about the compromise of safety and possibility of greater incidents. The DGCA being fully competent as per Rule 133A to issue such circulars and bearing in mind the provisions of Section 21 of the General Clauses Act, 1897, has exercised the powers under the said Rule while issuing the circular and further clarification in that regard on 2-6-2008.
16. It is their further case that on 13-8-2007 the Indian Pilots' Guild addressed a representation to the DGCA that CAR of 27-7-2007 in its entirety did not take into consideration the fundamental objective of preventing flight crew fatigue in international operations and also pointed out the short-falls of the recommendations of its own expert committee and strongly ::: Downloaded on - 09/06/2013 13:41:51 ::: [14] criticised the CAR on the issues relating to suitable accommodation, time zone, compulsory rest period of seven days as provided in para 3.2 of the CAR, stand-by duty in advance, maximum FDTL/FTL Schedule in international operations, adequate sleeping quarters for flights exceeding ten hours acclimatisation, time off out-station, cumulative rest, time off at base station, etc. Taking into consideration the various factors, the Government and the DGCA decided to keep the CAR of 27-7-2007 notice for the time being in abeyance. It is their further case that the AIC was issued on the recommendations of the Committee constituted of Senior Air Force Aviation Medicines Specialists, Senior Pilots of various operators and of the Air Force and the flight duty time and flight time limitations in respect of flight crew as laid down therein were well within the safety limits and were being adhered to by all operators as also their respective crew without any objections and reservation over a period of 15 years.
17. In October, 2006 the DGCA with the view to review the FDTL/FTL published new draft proposal and invited comments and following the procedure laid down in CAR of 13-10-2006, issued CAR dated 27-7-2007 laying down fresh guidelines. The said CAR was to be effective on schedule operators from 1-8-2007 and to all other operators from 16-8-2007. However, immediately on ::: Downloaded on - 09/06/2013 13:41:51 ::: [15] issuance of the CAR dated 27-7-2007, the DGCA received representations from various airlines expressing their inability to implement the said CAR due to various reasons, including the advance scheduling of flights, manpower requirement and operational defects, lack of trained crew resulting from 35% increase in crew requirement due to new FDTL/FTL requirements prescribed under CAR dated 27-7-2007, the possibility of cancellation of flights, reviewing losses, inconvenience to the travelling public due to disruption of scheduled flights, possibility of total absurd result from implementation of the said CAR in as much as that the implementation could lead to a situation where most of the pilots would reach their limit well before the stipulated period of 12 consecutive months and it would result in non-availability of pilots for flying duties which situation would be self-defeating the aim of CAR, for optimum utilisation of crew and advantage of six landing per day and taking into consideration all these aspects the DGCA issued the impugned circular dated 29-5-2008 with further explanation on 2-6-2008 making interim arrangement on account of suspension of CAR dated 27-7-2007.
18. It is their further case that after taking into consideration all the practical difficulties that may be faced by the travelling public and the consequential ::: Downloaded on - 09/06/2013 13:41:51 ::: [16] effects which may occur therefrom, the DGCA and the Ministry of Civil Aviation constituted the Committee to examine the matter and to give its report on the terms of reference as under:
"(i) to re-examine The Flight Duty
Limitations of pilots in
consultation with various stake
holders keeping in view the
present Civil Aviation
environment in India, including
general aviation, flying
training operations and
helicopter operations.
(ii) to examine the prevailing
international practices
regarding FDTL/FTL being
followed by major aviation
regulators worldwide.
(iii) recommended such amendments as
may be suitably incorporated in
the new car, keeping in view the
availability of pilots and their
optimum utilization with
adequate duty time limitations
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in the context of the growing
Indian civil aviation sector,
without compromising on aviation
safety."
It is the case of the respondents that it is open to all stake holders, including the pilots, to place their views on the subject before the Committee.
19. It is further case of the respondents that in no case the pilots in India can be aggrieved on account of the CAR dated 27-7-2007 being kept in abeyance for the reason that by virtue of a settlement the Air India (now NACIL) pilots had agreed to cater to expansion of the airline, the pilots will operate 2 FDTL as defined in AIC 28 of 1992 till 30-6-2009 and thereafter FDTL will be revisited in discussion with the pilots. The revival of AIC 28 of 1992 will be to cater ultra-long operations above flight time of 14 hours, the pilot will follow the FDTL prescribed by the DGCA for such ultra-long haul operations. Issuing CAR, modifying the same, giving relaxation, keeping the same in abeyance are all part of the policy decision taken by the regulatory body, the DGCA, which is always conscious of the fundamental requirement. The AIC 28 of 1992 nowhere violates the mandate of Rule 42A of the said Rules. Besides, the petitioner No.3 itself had sought to challenge CAR of ::: Downloaded on - 09/06/2013 13:41:51 ::: [18] 27-7-2007 on the ground that the same was not in keeping with the requirement of safety provisions as also was prejudicial to the pilots, while the AIC 28 of 1992 was followed and implemented for 15 long years. While denying all the allegations in the petition, the respondents have contended that the whole exercise has been undertaken to ensure that there is optimum use of manpower, without in any way compromising the flight safety. That the Government aims to achieve a balance between the FDTL/FTL of the pilots and the optimum use of the resources by the airlines the circular dated 29-5-2008 has been issued only after considering the operational and practical problems of all stake holders, without in any manner compromising with the flight safety aspects, and being interim measure, there is no substance in the allegations made in the petition. It is further case of the respondents that the policy decision has been taken in the background of the representations received from various corners with regard to the chaotic situation which could have resulted on account of implementation of CAR dated 27-7-2007, more particularly in view of the fact that the aviation industry is facing unprecedented problems and is short of being crippled to the detriment of public at large as a result of acute shortage of pilots and other shortfalls. The circular has been issued by the regulatory authorities and it has not been issued ::: Downloaded on - 09/06/2013 13:41:51 ::: [19] for any extraneous consideration. The allegation in that regard is totally baseless.
20. Sri K.K. Singhvi, the learned senior counsel, while assailing the impugned circular, submitted that the challenge is four-fold. Firstly, the circular has been issued by the so called authority who has no jurisdiction to issue the same. Secondly, no procedure as prescribed under the law has been followed for suspending the CAR of 2007, as also to enforce the AIC 28 of 1992. Thirdly, once the CAR of 27-7-2007 is suspended, the earlier rules cannot revive. Fourthly, in any case, the principles of natural justice have not been followed.
21. While elaborating the grounds of challenge, Sri K.K. Singhvi submitted that in terms of CAR Section 1 -
General Series 'A' Part III dated 13-10-2006 and Clauses 3 and 4 thereof, there is certain procedure prescribed for promulgation of CAR and the said CAR of 13-10-2006 was issued in terms of Rule 133A of the said Rules and, therefore, the DGCA was not empowered either to suspend the CAR of 27-7-2007 or to revive the AIC 28 of 1992, without following the procedure prescribed under Clauses 3 and 4 of CAR of 13-10-2006.
22. The Rule 133A of the said Rules provides that ::: Downloaded on - 09/06/2013 13:41:51 ::: [20] the Director General may, through Notices to Airmen (NOTAMS), Aeronautical Information Publication, Aeronautical Information Circulars (AICs), Notice to Aircraft Owners and Maintenance Engineers and publication entitled Civil Aviation Requirements issue special directions not inconsistent with the Aircraft Act, 1934 (22 of 1934) or those rules, relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. The term "Director General" has been defined under Rule 3(18) to mean Director General of Civil Aviation.
23. The CAR of 13-10-2006 was accordingly issued by the DGCA on the subject of issuance of Civil Aviation Requirements and revisions thereof, etc., and the Clause 1.1 thereof clearly stated that the Section 4 of the said Act enables the Central Government to make rules to implement the Convention relating to International Civil Aviation, signed at Chicago on 7-12-1944, including the Annex thereto relating to international standards and recommended practices as amended from time to time and the Section 5 of the said Act empowers the Central Government to make rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft and for securing the safety of aircraft operations. Further, the Rule 29C of ::: Downloaded on - 09/06/2013 13:41:51 ::: [21] the said Rules enables the DGCA to lay down standards and procedures not inconsistent with the said Act and the Rules made thereunder to carry out the Convention and any Annex thereto and in accordance with Rule 133A of the said Rules the DGCA may also issue Civil Aviation Requirements not inconsistent with the said Act and the Rules and, therefore, the Clause 1.2 specifies that while the broad principles of law are contained in the said Rules, the CAR are promulgated to specify the detailed procedures.
24. The Clauses 3 and 4 of CAR of 13-10-2006 refer to the procedure for promulgation of CAR and they read as under:
"3. PROCEDURE FOR PROMULGATION OF CAR 3.1 Civil Aviation Requirements under various sections are issued bearing different "series" identified by alphabetical letters, namely Series A, B, C etc. and under the same Series, various "Parts" are issued, such as Part I, II, III, etc. 3.2 The first page of the CAR shall indicate the date of issue along ::: Downloaded on - 09/06/2013 13:41:51 ::: [22] with the date of its effectiveness.
Subsequent pages shall indicate the date of issue only.
3.3 Whenever a change is effected to a
CAR, it shall be termed as revision
and the revision number along with
date of revision and effective date
of revised CAR shall be indicated
on the first page of the CAR.
Note: The
igamendments carried out to the
earlier issues of the CAR, shall
also be read as Revision.
3.4 Consequently, the revision number
and date of revision shall be
reflected only on such pages, which
are affected by the revision.
Pages, which are not affected by
the revision, shall contain initial date of issue only.
3.5 Every revision shall be accompanied by a "Revision Notice" which shall indicate the pages affected and the justification for the revision.::: Downloaded on - 09/06/2013 13:41:51 ::: [23]
The Revision Notice shall be filed
along with the revised CAR in the
folder.
3.6 Whenever there is a major
change/revision, the Revision
Notice shall indicate that the CAR
has been revised in its entirety
and CAR issued earlier shall be
discarded. All revisions to the
CAR shall be indicated by a
sideline on the left side of the
affected pages indicating the
change/revision to the CAR.
4. Whenever a new CAR or revision to
the existing CAR is proposed to be
issued, the draft of the proposed
CAR/revision shall be posted on
DGCA website or circulated to all
the persons likely to be affected
thereby for their
objections/suggestions. The
objections/suggestions received
within the stipulated period shall
be analysed and if found acceptable
shall be incorporated in the
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proposed CAR before promulgation.
DGCA may also arrange meetings with
the Civil Aviation Industry for
discussions on the draft CAR before
finalisation/promulgation."
25. Referring to the said procedure, it is sought to be contended on behalf of the petitioners that the records nowhere disclose that before seeking to revive AIC 28 of 1992, the procedure as prescribed in CAR of 13-10-2006 has been followed. Neither it was displayed on the website nor objections were invited nor anybody was consulted and in total defiance of the prescribed procedure, the respondents have issued the impugned circular. It is further submitted on behalf of the petitioners that there is nothing like competent authority, who can either revoke or suspend CAR and it is essentially for the DGCA to exercise the power in that regard by following the prescribed procedure.
Drawing out attention to the affidavit filed by the respondents, it was sought to be contended that the same reveals contradictory statements as regards the authority who has issued the impugned circular. While at one place it is stated that it was issued by the DGCA, at the other place it is stated to have been issued by the Government and yet at the third place it is stated to have been issued by both. This itself, ::: Downloaded on - 09/06/2013 13:41:51 ::: [25] according to the learned senior counsel, discloses failure on the part of the respondents to follow the required procedure. He further submitted that it is apparent from the stand taken by the respondents that the circular has been issued only to appease the airlines, ignoring the public safety and the interest of the pilots. He further submitted that in any case, once the CAR of 27-7-2007 was suspended, it cannot revive a dead statute i.e., AIC 28 of 1992. The latter having already wiped off, it has gone forever, it cannot be revived. Besides, even for revival, the procedure prescribed in terms of CAR of 13-10-2006 is required to be followed, which has not been followed and hence the impugned circular is bad in law along with its clarification. Reliance is sought to be placed in the decision in the matters of Om Prakash Gupta v. State of Uttar Pradesh, reported in AIR 1955 SC 600, Bishan Sarup Gupta v. Union of India and others, reported in AIR 1972 SC 2627, Ameer-un-Nissa Begum and others v.
Mahboob Begum and others, reported in AIR 1955 SC 352, West U.P. Sugar Mills Assn. and others v. State of U.P. and others, reported in (2002) 2 SCC 645 and Scheduled Caste and Weaker Section Welfare Association (Regd.) and another v. State of Karnataka and others, reported in (1991) 2 SCC 604. He further submitted that in any case even the basic principles of natural justice have not been followed while seeking to revive AIC 28 of ::: Downloaded on - 09/06/2013 13:41:51 ::: [26] 1992 in as much as that not even objections and/or suggestions were called from the petitioners in relation to their grievances in that regard.
26. The learned Solicitor General of India, however, has submitted that the petition nowhere discloses any challenge to the communication dated 2-6-2008 whereby the AIC 28 of 1992 was ordered to be effective as an interregnum arrangement, and it is rightly so, because the petitioners very well knew that they cannot challenge the authority of the DGCA in that regard and it is apparent ig from para 20(d) of the memo of the petition. The said para deals with the grounds of challenge and the clause (d) clearly states that the circular dated 29-5-2008 cannot automatically revive AIC 28 of 1992. In other words, the petitioners themselves have admitted that AIC 28 of 1992 could not stand revived but for specific order in that regard which has been passed by the DGCA and communicated under the letter dated 2-6-2008. He further submitted that without laying proper foundation and raising a specific ground of challenge in the petition, the petitioners are not entitled to challenge the said letter dated 2-6-2008 merely by oral arguments across the bar. He further submitted that it being an interregnum arrangement, question of applicability of the provisions of CAR of 13-10-2006 does not arise at all. Besides, applying the ::: Downloaded on - 09/06/2013 13:41:51 ::: [27] provisions of Section 21 of the General Clauses Act, the DGCA has ample powers to suspend CAR of 27-7-2007 and to revive the AIC 28 of 1992. Drawing attention to Article 77(3) of the Constitution of India, he submitted that the rules of business clearly empowers the Minister to be in charge of its department and to take appropriate decisions in relation to the matters of its department.
The Directorate of Civil Aviation is part of the Civil
Aviation Department. He further submitted that when the
said Act and the Rules came into force, there was no
post of the Director General or Director General of
Civil Aviation
and it came to be introduced for the
first time in 1976 with the amendment to the said Rules, particularly to Rule 133A. The question of applicability of procedure in terms of CAR of 13-10-2006 could arise in case of revision of CAR and not in case of revocation or issuance of instructions to meet the day-to-day requirements and more particularly, when the instructions relate to interregnum period. He further submitted that the Rule 133A is a regulatory provision and the DGCA is fully empowered to order dispensation in relation to any rules applicable to the petitioners or the airlines. Further, the Rule 42A of the said Rules clearly prescribes the maximum flying hours and it is nobody's case that the said rule has been violated.
What should be the procedure to be followed in fixing the duty hours or flying hours is a matter of policy and ::: Downloaded on - 09/06/2013 13:41:51 ::: [28] the Courts have no expertise to decide the same. It cannot be disputed that pursuant to the suspension of CAR of 27-7-2007 but for the order dated 2-6-2008 there would have been void or vacuum and it would have led to chaotic situation and, therefore, the interim arrangement was absolutely necessary which has been provided for under the said order dated 2-6-2008.
Reliance is sought to be placed in the decisions in the
matters of Scheduled Caste and Weaker Section Welfare
Association (Regd.) and another v. State of Karnataka
and others (supra), State of Punjab v. Tehal Singh and
others, reported
ig in (2002) 2 SCC 7 and Dhampur Sugar
(Kashipur) Ltd. v. State of Uttaranchal and others,
reported in (2007) 8 SCC 418.
27. If one peruses the petition and the relief asked for therein, as rightly submitted by the learned Solicitor General, the petition nowhere seeks to challenge the order dated 2-6-2008. The challenge is essentially to the circular dated 29-5-2008 whereby the CAR of 27-7-2007 has been ordered to be suspended. The prayer in the petition reads thus:
"(a) That this Hon'ble Court may be pleased, by a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction to ::: Downloaded on - 09/06/2013 13:41:51 ::: [29] go into the legality and propriety of the circular issued by the Respondent no.1 dated 29th May 2008 informing about the putting into abeyance of the earlier Civil Aviation Requirement dated 27th July 2008, and, if found to be illegal and improper, to quash and to set aside the same;"
28. It is sought to be contended on behalf of the petitioners that the order dated 2-6-2008 being in continuation of the circular dated 29-5-2008, it is not necessary for the petitioners to challenge the said order separately. We are afraid the contention is not well-founded. While the circular dated 29-5-2008 relates to the subject of suspension of CAR of 27-7-2007, the letter dated 2-6-2008 refers to instructions to the effect that AIC 28 of 1992 would be effective till CAR is approved by following the procedure laid down in CAR of 13-10-2006. The subject-matter of two documents being different, merely because the second document is in continuation of the first document, it cannot be said that the challenge to the first document would ipso facto include challenge to the second document. Besides, again, as rightly submitted by the learned Solicitor General, the petitioners have consciously to challenge the letter ::: Downloaded on - 09/06/2013 13:41:51 ::: [30] dated 2-6-2008 and that is apparent from the ground (d) in para 20 of the petition. The entire tenor of the petition and the relief prayed for in the petition squarely relates to the circular dated 29-5-2008 and nothing beyond it. The letter dated 2-6-2008 is not the effect of the circular dated 29-5-2008 but the same has been issued in exercise of powers under Rule 133A to meet the circumstances which have resulted on account of CAR of 27-7-2007 being suspended. The cause for issuance of the letter dated 2-6-2008 is not directly flowing from the circular dated 29-5-2008 but it was issued for the consequences which followed the issuance of the circular dated 29-5-2008. Being so, in case the petitioners wanted to challenge the communication dated 2-6-2008, the petitioners ought to have challenged the same by raising specific ground in that regard by laying proper factual foundation in support of such ground and only then the petitioners could have invited the order in that regard from the Court. No order can be allowed to be challenged by mere oral submissions in the course of arguments of a matter. The petitioners have to restrict the challenge to the extent it has been specifically pleaded and the relief can be asked to the extent it is prayed for. There is neither challenge thrown in the petition to the letter dated 2-6-2008 nor there is any prayer made in that regard. Being so, the respondents are justified in contending that the ::: Downloaded on - 09/06/2013 13:41:51 ::: [31] petitioners are not entitled to challenge the said communication at the eleventh hour by merely making oral submissions in that regard.
29. Even otherwise, there is absolutely no substance in the challenge to the letter dated 2-6-2008. The contention on behalf of the petitioners that AIC 28 of 1992 does not automatically revive, cannot be found fault with. However, that is not the case in hand. The letter dated 2-6-2008 specifically revives the provisions of AIC 28 of 1992 taking into consideration the void which was sought to be created in relation to the subject-matter consequent to suspension of CAR of 27-7-2007.
30. The decision of the Apex Court in Om Prakash Gupta's case (supra) is of no help to the petitioners.
Therein, the contention on behalf of the State of U.P. that consequent to setting aside the order of dismissal, the order of suspension of the employee get automatically revived and it could end only with valid order which would replace the order of suspension and until that happens, the accusation against the employee would remain and inquiry would not come to an end. The contention was rejected holding that the order of suspension is made against the employee pending the inquiry and consequent to imposition of penalty, the ::: Downloaded on - 09/06/2013 13:41:51 ::: [32] order of suspension get lapsed, and mere setting aside of the dismissal by the Court would not automatically revive the order of suspension. One fails to understand how this decision can be of any help to the petitioners in the face of the order dated 2-6-2008 which specifically says that the proceedings of AIC 28 of 1992 would be effective. In other words, it is not a case of automatic revival of AIC 28 of 1992 but there is a specific order by the competent authority in exercise of statutory powers whereby the AIC 28 of 1992 has been revived.
31. The decision of the Apex Court in Bishan Sarup Gupta's case (supra) is also on similar lines. It was held therein that:
"As a matter of fact, this 1951 rule had been made in supersession of the old rule as a matter of policy. The old rule being superseded was dead, and could not be revived by the fact that the superseding rule ceases to have operation after a certain number of years. It is an admitted fact that the Government did not prescribe in writing any new quota rule after 1956 ...... "::: Downloaded on - 09/06/2013 13:41:51 ::: [33]
Obviously, it was case where the contention was about automatic revival. As already stated above, in the case in hand, there is specific revival of AIC 28 of 1992 under the letter dated 2-6-2008.
32. The Apex Court in Ameer-un-Nissa Begum's case (supra) held that:
"Under the English Common Law when a
repealing enactment was repealed by
another statute, the repeal of the
second
Act revived the former Act ab
initio. But this rule does not apply to
repealing Acts passed since 1850 and now if an Act repealing a former Act is itself repealed, the last repeal does not revive the Act before repealed unless words are added reviving it.
(Emphasis supplied) It was further held that:
"But even according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment ::: Downloaded on - 09/06/2013 13:41:51 ::: [34] manifests an intention to the contrary."
The decision rather than helping the petitioners, supports the case of the respondents. The letter dated 2-6-2008 specifically revives AIC 28 of 1992. Being so, the specific words are added to the earlier decision suspending CAR of 27-7-2007 to revive AIC 28 of 1992.
The letter dated 2-6-2008 clearly manifests intention to revive AIC 28 of 1992.
33. In West U.P. Sugar Mills's case (supra) the Apex Court was dealing with a ground of challenge to a circular to the effect that once the old rule is deleted and substituted by new rule, and subsequently even the new rule ceases to operate, that by itself would not revive the old rule and, therefore, the authority would have no power to act in accordance with the old rule.
While dealing with the arguments, that once the old rule has been deleted or repealed and substituted by a new rule, whether the old rule would revive when the substituted rule ceases to operate, reference was made to three earlier decisions. In B.N. Tewari v. Union of India, reported in AIR 1965 SC 1430, wherein the question was whether the old rule revives after the substituted rule was struck down, it was held that the old rule having been repealed and substituted by a new rule, the old rule would not revive after the new rule ::: Downloaded on - 09/06/2013 13:41:51 ::: [35] was struck down by the Court. The other case was in the matter of Firm A.T.B. Mehtab Majid & Co. v. State of Madras, reported in AIR 1963 SC 928. Therein it was held that where an old rule has been substituted by a new rule, the old one ceases to exist and does not get revived when the new rule is held invalid. In Indian Express Newspapers (Bom) (P) Ltd. v. Union of India, reported in (1985) 1 SCC 641, the question arose whether the old notification would revive on quashing of the new notification and it was held that on striking down of the subsequent notification, the repealed notification does not revive.
ig After taking into consideration these decisions, the Apex Court held that where the subsequent law which modifies the earlier law is held to be void, the earlier law would be deemed to have never been modified or repealed and, therefore, would continue to be in force. Where it is found that the legislature lacked the competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded of the power to amend the existing law, in such a case the old law would revive and continue and not otherwise. The decision has no application to the facts of the case in hand. As already held above, it is not the case of the respondents that AIC 28 of 1992 automatically got revived consequent to suspension of CAR of 27-7-2007.
On the contrary, there was specific order issued by the ::: Downloaded on - 09/06/2013 13:41:51 ::: [36] competent authority in exercise of statutory powers to revive AIC 28 of 1992.
34. Attention was sought to be drawn to the decision of the Apex Court in Scheduled Caste and Weaker Section Welfare Association's case (supra) in support of the contention that even for revival of AIC 28 of 1992 the principles of natural justice are required to be complied with. The Apex Court therein has reiterated the decision in Kamla Prasad Khetan v. Union of India, reported in AIR 1957 SC 676, wherein it was held that:
"the power to issue an order under any Central Act includes a power to amend the order; but this power is subject to a very important qualification and the qualification is contained in the words 'exercisable in the like manner and subject to the like sanction and conditions (if any)' ......"
It was held that considering the provisions of Section 21 of the General Clauses Act, when any alteration is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action. Such ::: Downloaded on - 09/06/2013 13:41:51 ::: [37] action in exercise of the implied power to rescind cannot then be said to have been exercised subject to the like conditions within the scope of Section 21 of the General Clauses Act. Again, we fail to understand the applicability of this ruling to the matter in hand.
35. The Rule 133A of the said Rules clearly empowers the DGCA to issue necessary directions not inconsistent with the said Act and the Rules made thereunder. The petitioners have not pointed out any single provision from the AIC 28 of 1992 which could be said to be inconsistent with ig the said Act or the Rules made thereunder. On the contrary, undisputedly, the Rule 42A of the said Rules clearly provides that no pilot of a flying machine, shall, in his capacity as such pilot, fly for more than 125 hours during any period of 30 consecutive days, provided that without prejudice to the provisions of Rule 160, the Director General may, subject to such conditions and limitations as he may specify, by order in writing, exempt any such pilot from the provisions of the Rule 42A. The explanation states that for the purpose of the said Rule, the flying time of a pilot either as solo pilot-in-command of an aircraft will be counted fully and the flying time of a pilot engaged as co-pilot or supernumerary pilot will be counted at 80 per cent of the flying time. It is nobody's case that AIC 28 of 1992, in any way, is ::: Downloaded on - 09/06/2013 13:41:51 ::: [38] inconsistent with the provisions comprised under the Rule 42A.
36. Being so, even assuming that there is challenge to communication dated 2-6-2008 in the petition, the same is to be considered as devoid of substance as undisputedly, the DGCA has ample power to issue such instructions or directions in exercise of its powers under the Rule 133A r/w Rule 29C of the said Rules. The petitioners have not been able to point out any provision even for issuance of instructions for such interregnum period, the provisions of CAR of 13-10-2006 would be attracted in the matter.
37. The contention that the circular dated 29-5-2008 has been issued without having authority and that it was issued at the dictates of the Government and that, therefore, being unlawful is totally devoid of substance. The Directorate of Civil Aviation is directly under the control of Civil Aviation and considering the rules of business, the Government being the appropriate authority to formulate necessary policy in relation to the subject matter in issue, and the Government in its wisdom having decided after taking into consideration all the representations made from various sections, has appointed a Committee to formulate CAR in relation to the matters enumerated under Order ::: Downloaded on - 09/06/2013 13:41:51 ::: [39] dated 29-5-2008, and on that count, the DGCA in exercise of its power under Rule 133A r/w Rule 29C of the said Rules having issued the circular dated 29-5-2008, no fault can be found with the same nor it can be said to be either illegal or without any authority.
38. The circular on the face of it shows that it has been issued by the DGCA. The averments in the affidavit, to which attention was drawn to contend that the respondents themselves are not aware as to who has issued the circular, nowhere discloses any such confusion in the mind of the respondents. Every statement made in the affidavit has to be read in the context in which it has been made. The reference to the Government's involvement in issuance of the said circular is in relation to the policy of the Government reflected in its decision to constitute a committee in the matter which has been described in the circular dated 29-5-2008. Being so, various references to the Government in connection with the circular dated 29-5-2008 cannot be construed to mean that the circular has been issued by an authority not competent to issue the same. The circular on the face of it discloses to have been issued by the competent authority and that has been clearly established by the respondents. Therefore, there is no substance in the challenge to the said circular on the ground that it is not issued by the ::: Downloaded on - 09/06/2013 13:41:51 ::: [40] competent authority or that it has been issued without jurisdiction. Similarly, there is no substance in the challenge that no procedure has been followed in enforcing the AIC 28 of 1992. In view of letter dated 2-6-2008, the contention that the suspension of CAR of 27-7-2007 does not revive the AIC 28 of 1992 is also devoid of substance.
39. Since the instructions which have been issued under the letter dated 2-6-2008 are merely in the form of interim measures, the question of applicability of the principles of natural justice does not arise.
Besides, as rightly submitted on behalf of the respondents, the suspension of CAR of 27-7-2007 had created void and it was therefore necessary for the DGCA to take appropriate decision during the finalisation of CAR pursuant to the report to be submitted by a committee constituted by the Government. Bearing the same in mind, we do not find any substance in the fourth ground of challenge in the petition.
40. In Tehal Singh's case (supra), it was clearly held that:
"It is almost settled law that an act
legislative in character - primary or
subordinate, is not subjected to rule of ::: Downloaded on - 09/06/2013 13:41:51 ::: [41] natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principles of natural justice or provide for hearing to the residents of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area.
......
But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principles of natural justice before issue of a declaration either under Section 3 or Section 4 of the Act, the residents of the area cannot insist for giving an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority."
A reference was made in that regard to its earlier decision in the matter of Rameshchandra Kachardas Porwal v. State of Maharashtra, reported in (1981)2 SCC 722.
::: Downloaded on - 09/06/2013 13:41:51 ::: [42]41. Apart from the fact that the revival of AIC 28 of 1992 under Order dated 2-6-2008 is merely an interim arrangement, taking into consideration the various factors which have been disclosed in the pleadings of the parties and referred to above, and in the public interest, we do not find any fault with the authority for merely not granting hearing to the petitioners before issuance of such order.
42. It is also to be noted, as rightly submitted on behalf of the respondents, that it is the petitioner No.3 itself who had challenged the validity of CAR of 27-7-2007 by filing the Petition No.2716 of 2007. The Petition was filed somewhere in December, 2007. In the said petition, the petitioners themselves had stated that the draft of CAR of 27-7-2007 reveals shocking deviations and selective exclusions from international safety regulations in respect of flight duty time and flight time limitations and that a clever attempt was seen to circumvent international research norms, scientific practices, practices by advanced countries and leading regulatory authorities.. It was further stated in the petition that they were challenging the amendment to flight duty time and flight time limitations in CAR of 27-7-2007 which are inconsistent with the existing safety rules and the settled principles and procedures adopted by the respondents as ::: Downloaded on - 09/06/2013 13:41:51 ::: [43] well as similar international regulatory authorities as the same are violative of constitutional rights under Article 14 of the Constitution of India. As rightly submitted by the learned advocate for the respondents, one wonders how suddenly CAR of 27-7-2007 is thought to be of great benefit to the petitioners moment it is suspended. It is also to be noted that prior to the suspension order, the petitioners themselves had represented against the CAR of 27-7-2007. In the circumstances, before challenging the suspension, it was necessary for the petitioners to disclose reason for change in opinion of the petitioners in relation to the CAR of 27-7-2007. It is apparent that the petitioners who themselves were aggrieved by the CAR of 27-7-2007 are seeking to challenge the suspension thereof on merely a technical ground and without any substance.
43. The Apex Court in Dhampur Sugar (Kashipur) Ltd.'s case (supra), it was clearly held that it is well-settled that public authorities must have liberty and freedom in framing policies, though the discretion is not absolute and unqualified, unfettered or uncanalised and the judiciary will have control over all executive actions. At the same time, it is well established that courts are ill-equipped to deal with such matters. It was held therein that in complex social, economic and commercial matters, decisions have ::: Downloaded on - 09/06/2013 13:41:51 ::: [44] to be taken by governmental authorities keeping in view several factors, and it is not possible for courts to consider competing claims and conflicting interests and to conclude which way the balance tilts. It was further held therein that there are no objective, justiciable or manageable standards to judge the issues nor such question can be decided on a prior considerations. The ruling squarely applies to the facts of the case in hand. The records apparently disclose that the concerned authority, after taking into consideration the pros and cons, the safety of travelling passengers as well as interests of the pilots, giving due consideration to the representations made by the petitioners, decided to suspend the CAR of 27-7-2007 and to avoid confusion and chaos, sought to revive AIC 28 of 1992. Undisputedly, in the absence of AIC 28 of 1992, there are no provisions governing to control situation which may arise and the matter cannot be left without prescribing proper rules and regulations and, therefore, in public interest, the said circular and the order have been issued. We find no substance in the challenge to the same. Neither there is any substance in the grievance about undue strain would be caused or that the pilots should be exploited by the airlines more particularly taking into consideration that the parties would be governed by the provisions of AIC 28 of 1992 which was holding the field for more than 15 years. In ::: Downloaded on - 09/06/2013 13:41:51 ::: [45] the absence of specific challenge being thrown to any of the provisions of AIC 28 of 1992, the wild allegations sought to be made in the matter are of no substance and are of no relevancy.
44. Attention is sought to be drawn to the interim order passed by the Division Bench in this matter on 1-7-2008, while contending that there is no reason to take a view different from the one taken in the said order which is a well reasoned order. With utmost respect, we are unable to accept the contention in this regard.
Firstly, it is an interim order, a prima facie view taken in the matter and secondly, such an order is not binding upon this Bench while deciding the matter finally. In any case, we are not persuaded to take similar view in the matter. The case put forth before the Court has to be decided on the basis of the materials on record and the law applicable thereto. We cannot be allowed to be swayed away by emotions and the theory of ifs and but. The judicial decision has to be based on the facts placed before the Court, the issues which arise in the matter and the law relevant for deciding such issues. We have not been persuaded in any manner to take the similar view which was taken by the Division Bench while passing the impugned order.
45. In the facts and circumstances of the case, ::: Downloaded on - 09/06/2013 13:41:51 ::: [46] therefore, we find no case is made out for interference in writ jurisdiction, and hence the petition fails and is hereby dismissed. The rule is discharged with costs.
(A.A.Sayed, J.) (R.M.S.Khandeparkar, J.) sjs/r8wpj1687.8 ::: Downloaded on - 09/06/2013 13:41:51 :::