Delhi High Court - Orders
Air Traffic Controllers Guild India vs Directorate General Civil Aviation on 19 January, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1122/2022, CM No. 3248/2022
AIR TRAFFIC CONTROLLERS GUILD INDIA
..... Petitioner
Through: Mr. Piyush Sanghi, Adv. with
Ms. Khushbu Sahu, Adv.
versus
DIRECTORATE GENERAL CIVIL AVIATION
..... Respondent
Through: Ms. Anjana Gosain, Adv. with
Ms. Shalini Nair and Ms. Ritika
Khanagwla, Advs. for R-1
Mr. Digvijay Rai, Adv. with
Mr. Archit Mishra, Adv. with Joint
General Manger for R-2/AIR
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 19.01.2022 This matter is being heard through video-conferencing.
1. It is a fourth round of litigation by the petitioner, the first one being W.P.(C) 2946/2020 wherein the order dated March 23, 2020 was passed in the following manner:
"13. In the light of the above, purely as an interim measure, until further orders, the following directions are issued:
i. The DGMS (Air), Delhi shall immediately convene a meeting of the DGCA, AAI, Ministry of Civil Aviation, including any doctors or medical specialists tomorrow i.e., 24th March 2020 or at the earliest possible convenience to draw up an alternative protocol for conducting breath Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21 analyser tests on ATCs;
ii. The Breath Analyser Test currently being conducted shall remain suspended with immediate effect at all airports till further orders;
iii. The Petitioner and all its members shall abide by the assurance to the effect that they appreciate the critical nature of their duty and undertake that they would not report to work under the influence of alcohol;
iv. An undertaking and a self-declaration shall be obtained under the signature of each ATC who reports to work; v. Any violation of the undertaking and self-declaration given by the Petitioner and/or its members shall entail severe consequences including suspension of the licence; vi. The DGMS shall draw up the new protocol to be followed until the spread of COVID-19 abates;
vii. DGCA is however permitted to conduct any other way of testing which is not invasive in nature and which does not increase the chance of spreading of COVID-19. Urine/blood testing, if opted for as the method of testing, shall be done by using disposable syringes and/or sterilised equipment, in a 2% randomised sample, until the new protocol is framed so that any violation of the self-declaration or undertaking can be detected;
viii. AAI shall provide any facilities that may be needed for the DGCA to implement the above directions."
2. The aforesaid order was modified by this Court on September 03, Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21 2021 wherein in paragraphs 5 to 7 the Court has held as under:
"5. I have considered the submissions made by the learned counsels for the parties. On the aforesaid, it has been noted that this court is not an expert in the medical field. The Medical Report dated 16.06.2020 is pursuant to the directions issued by this Court and was headed by DGMS (Air) and attended by other Air Force Medical Officers.
They are certainly the experts in their field. As submitted by the learned counsel for the respondents, Breath Analyser Tests are being presently conducted even for the pilots, though in a restricted manner. The respondents are also agreeable to put in place the precautionary measures as suggested by the Medical Board.
6. In the present case, the interests of the ATCs and of the air traveller have to be balanced. With the respondents having agreed to take precautionary measures and even reducing the number of tests, this Court does not find any reason to continue with the interim order dated 23.03.2020 any further.
7. The interim order dated 23.03.2020 shall accordingly, stand modified to the extent that the respondent no.2 shall be bound by the recommendations of the Medical Board dated 16.06.2020, till further orders."
3. Another writ petition was filed by the petitioner being W.P.(C) 5122/2021. The aforesaid W.P.(C) 2946/2020 and W.P.(C) 5122/2021 were finally disposed of by this Court along with a third writ petition being W.P. Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21 4990/2021 in terms of the directions given in paragraphs 13 to 15:
"13. After hearing all the Petitioners and the DGCA, it is clear that the two reports of the DGMS (Air) also do not recommend heavy testing through Breath Analyser method, owing to the prevalent circumstances. The blood alcohol test has been rejected by the Committee and this court would not like to substitute its judgement over the same. There is however no doubt that testing for alcohol cannot be completely exempted in as much as the same could be detrimental to passenger safety. While maintaining a balance between the interest of the personnel as also passengers, directions would have to be issued. Keeping in mind both the reports of the DGMS (Air) and the submissions of the parties, the following directions are accordingly issued.:
(1) All the personnel shall be bound to give an undertaking and a declaration that they have not been exposed to alcohol consumption in the last 12 hours before duty, in terms of the DGCA's applicable regulations. The said undertakings and declarations would be compulsory for all personnel.
(2) After the undertakings are given, insofar as the administration of the Breath Analyser test is concerned, the doctor and any other paramedic/nursing personnel on duty, would take a Rapid Antigen Test prior to joining the duty, in the testing area, to ensure, as far as possible, that they do not have COVID-19 and they are also not likely to transmit Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21 it, being asymptomatic.
(3) The DGCA shall direct that the Breath Analyser test at all airports would to the extent feasible be conducted in a much bigger and an open area, which has CCTV coverage and not in a small enclosed space, as shown in the photograph today. This would ensure that the exposure of aerosoles is also reduced for the personnel, who are tested. (4) The testing shall be random for all personnel i.e. ATCs, pilots, cabin crews and other personnel. However, insofar as the pilots and cabin crew are concerned, there will be a 5% cap on the number of personnel who are tested, for a period of 3 months. The same can be revised by the end of 3 months, depending upon the prevalence of COVID-19 pandemic.
(5) Insofar as the testing area is concerned, as submitted by ld. Counsel for DGCA, not more than 6 personnel shall be tested within the duration of one hour.
(6) The testing equipment shall be subjected to UVCA radiation, as per the protocols already prescribed by the DGCA, which were considered by the Committee appointed by DGMS (Air).
14. Keeping in mind the above directions, the DGCA shall issue a comprehensive guideline/order urgently, which contains all the requirements and the protocols to be followed for administration of Breath Analyser Test, in one document. The said order shall be communicated to all the airports and the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21 airlines, across the country to be adhered to uniformly.
15. It is again emphasised that the staff of airlines, including ATCs, pilots and cabin crew, would be bound to give undertakings and declarations. in respect of not having consumed alcohol, in terms of the applicable regulations, failing which strict action would be taken including off- rostering and suspension, in accordance with the applicable rules."
4. This petition has been filed and as urged by its counsel Mr. Piyush Sanghi that because of the recent surge of COVID-19 positive cases, the respondents should not put a cap on random checking at 5%. It should be brought down to 2%. He raises an issue on the manner the breath analyser test is being carried out in a closed enclosure. He states that it is not only the Air Traffic Controllers but even the cabin crew and the ground staff positioned at the Airports, are being tested in the same facility.
5. On the other hand, Ms.Anjana Gosain, learned counsel appearing for the respondent No.1 would submit that the DGCA is scrupulously following the directions given by the Court on May 11, 2021. According to her, as per the liberty granted by this Court, the DGCA has reviewed / considered the process of carrying out the breath analyser test and decided to retain the cap at 5%.
6. She also states that a Medical Board has been constituted to examine the health condition of the Traffic Controllers at the Airports from time to time. She further states, the directions already given be not modified. She reiterates, the cabin crew and even the ground staff are tested separately.
7. Mr. Digvijay Rai, learned counsel appearing for the respondent No.2 / Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21 AAI states that 60-70 air controllers are posted at Delhi and Bombay Airports who perform their duties, on a given day, in three shifts and 5% cap comes to 3-4 controllers, who are subject to breath analyser test. Similarly, in other Airports only 10 to 15 Air Traffic Controllers are in position and roughly 1-2 Controller (s) are put to breath analyser Test. According to him, the apprehension expressed by the petitioner in this petition is totally misplaced and the directions of this Court vide order dated May 11, 2021 being there, no further directions need to be issued.
8. Having heard the learned counsel for the parties and noting the directions passed by this Court from time to time in the petitions filed by the petitioner including the direction on May 11, 2021, which I have already reproduced above and the fact that only 3-4 Air Traffic Controllers are being tested, keeping in view the cap of 5% and also the fact that the Air Traffic Controllers, cabin crew and ground staff are being tested separately, I do not see any reason to entertain this petition. The same dismissed.
9. It is made clear that the respondents shall continue to scrupulously follow the directions given by this Court in the order dated May 11, 2021, and any infraction shall be taken very seriously.
CM No. 3248/2022Dismissed as infructuous.
V. KAMESWAR RAO, J JANUARY 19, 2022/aky Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:19.01.2022 21:33:21