Madras High Court
Capt.Ravi Chander Rajan vs Capt.Khaleel Anwar on 21 January, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2013
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.8471 of 2012 and
M.P.No.1 of 2012
Capt.Ravi Chander Rajan
Pilot
Jet Airways India Limited ... Petitioner
Vs.
1.Capt.Khaleel Anwar
Chief Pilot ATR,
Jet Airways India Limited,
Siroya Centre, Sahar Airport Road,
Andheri (East), Mumbai 400 099.
2.The Enquiry Panel,
Jet Airways India Limited,
Siroya Centre, Sahar Airport Road,
Andheri (East), Mumbai 400 099.
3.The Director General of Civil Aviation,
Office of the Director General
of Civil Aviation,
Technical Center, Opp Safdurjang Airport,
New Delhi. ... Respondents
Writ petition filed under Article 226 of the Constitution of India praying for a writ of Quo Warranto, calling upon the 1st respondent to show cause by what authority the 1st respondent claims to have, use, enjoy and perform the rights, duties and privileges of the office of a Flight Operations Inspector (FOI) and has continued to function as one under the Director General of Civil Aviation (DGCA) while simultaneously and primarily holding the office of Chief Pilot ATR with a scheduled airline, namely Jet Airways.
For Petitioner : Mr.Satish Parasaran
For Respondents : Mr.S.Ravi for
M/s.Gupta and Ravi for R1
Mr.B.Manoharan for R3
O R D E R
The writ petition was filed by the petitioner, seeking to issue a writ in the nature of Quo Warranto or any other writ, calling upon the first respondent to show cause by what authority he claims to have, use, enjoy and perform the rights, duties and privileges of the office of a Flight Operations Inspector (for short FOI) and continued to function as one under the Director General of Civil Aviation (for short DGCA) while simultaneously and primarily holding the office of Chief Pilot ATR with a scheduled airline, viz., Jet Airways Limited.
2. When the writ petition came up on 02.04.2012, notice of motion was ordered to the respondents. Pending the writ petition, the petitioner sought for two interim reliefs in M.P.Nos.1 and 2 of 2012. In M.P.No.1 of 2012, seeking for interim injunction, no orders have been passed. In M.P.No.2 of 2012, the petitioner sought for interim an direction to the second respondent Enquiry Panel, to serve the petitioner with all reasons, documents, papers, materials based on which it arrived at the decision of illegally grounding the petitioner with effect from 12.07.2011, along with the official express written order/decision arrived at by the second respondent. However, the petitioner made an endorsement seeking permission to withdraw M.P.No.2 of 2012, which was accordingly dismissed on 02.04.2012.
3. On notice from this Court, on behalf of the third respondent DGCA, a counter affidavit dated Nil (August 2012) was filed. The first respondent has also filed a counter affidavit dated 21.07.2012.
4. Heard the arguments of Mr.Satish Parasaran, learned counsel for the petitioner, Mr.S.Ravi of M/s.Gupta and Ravi, learned counsel for the first respondent and Mr.B.Manoharan, learned counsel for the third respondent.
5. The case of the petitioner was that he has been a Pilot with M/s.Jet Airways for the past 12 years. He has served as Type Rating Examiner (TRE) in the ATR 72-500 for over 8 years. He has also been the recipient of Safety and Proficiency Awards, Coast Guard Medal for Meritorious Services etc. During his 12 years of service with Jet Airways, he has received letters of appreciation from two different Vice-Presidents (Operation) and he has flown every month and every year for the past 12 years and has also secured "Above-Standard" reports.
6. It was stated that on 01.06.2011, while carrying out his duties, he made a report to the Management of Jet Airways about an event pertaining to the aircraft not pressurizing. However, after 42 days of the event, he was grounded with effect from 12.07.2011. His TRE status also stands suspended with effect from 12.07.011. He was also made to undergo two corrective sessions on simulator and two route checks on aircraft apart from being subject to release check by FOI and he was issued a warning letter by the first respondent and also a suspension of 75 days from service. The main reason for his being targeted was he was very vocal in the company discussion forums regarding the need to follow the DGCA Civil Aviation Requirements (CAR) dated 06.01.2009, specifically relating to Section 8, Series A, part III, Para 6.1 wherein it has been stated that the FOI shall be on a time-prescribed deputation and while being on such deputation, he shall not have any managerial responsibilities in his airlines nor be in any way associated with his airlines, in order to avoid clash of interests. The first respondent, however is holding the post of Chief Pilot ATR, Jet Airways while simultaneously functioning as FOI under the DGCA.
7. It was further stated that the first respondent was present as a part of the Enquiry Panel, under the capacity of Chief Pilot ATR Jet Airways, which imposed the illegal penalty of grounding the petitioner. The Enquiry Panel consisted of, amongst others, a representative of the DGCA, the Chief Pilot (Training and Development) and Chief of Safety. The first respondent, despite his cramped schedule as FOI, took additional responsibility of becoming Chief Pilot ATR in violation of Civil Aviation Requirements. The action of the first respondent is in direct violation of Para 3.5 under Chapter 3 of DGCA Enforcement Policy and Procedures Manual dated 20.05.2009, which requires the Officers/Inspectors to prevent real, potential or perceived conflict of interest and if it becomes apparent that there will be possibility of conflict of interest during an investigation, the Officer/Inspector shall inform the Supervisor with the request to be removed from the case.
8. The first respondent, who was deputed as FOI cannot continue to simultaneously hold the managerial posts with its primary employer, i.e, the scheduled airline. The first respondent being on deputation post is required to allocate 4 days in a week, i.e., 16 days in a month, for his duty as FOI under the DCGA. The first respondent while simultaneously holding the managerial post and high ranking position with the Scheduled Airline can hardly spare time for the safety checks.
9. The third respondent in response to the allegations contended that the Flight Inspection Directorate is headed by the Chief Flight Operation Inspector and has a sanctioned strength of 14 FOIs. In view of the limited sources available in the source organisations, it was decided, as an interim measure, to utilize the service of examiner rated pilots available with the Aviation Industry for the purpose of carrying out the tasks relating to inspection and surveillance of the airlines and its flight crew.
10. In the counter affidavit, the circumstances under which the first respondent was appointed as FOI is dealt with. In paragraphs 6 to 8, it was averred as follows:-
"6. It is submitted that the selection of Captain Khaleel Anwar was as per Para 5 of the CAR Section 8 Series A Part III dated 06.01.2009. Selection process involves requesting the airline to nominate names of examiners who meets the criteria as stipulated in Para 4 of the above mentioned CAR. Selection of seconded Flight Operation Inspector was done by a committee headed by DGCA. Capt. Khaleel Anwer was the only candidate type rated on ATR 72, who was selected by the board. At the time of joining as seconded Flight Operation Inspector, he was not holding any additional management responsibility. He was appointed as seconded FOI vide DGCA letter No.Flight Safety/seconded AS dated 30.08.2009 and joined DGCA on 14.09.2009, valid upto 31.08.2010 which was subsequently renewed up to 30.04.2011 vide letter No.Nil dated 26.11.2010. Further renewal was in accordance with DGCA order dated 01.06.2011 indicates validity up to 30.04.2012 which has been extended upto 30.04.2013 vide DGCA order dated 02.05.2012. The tenure extended with the approval of DGCA under clause 7.3 of CAR as no TRE on ATR-72 was available. It is submitted that DGCA was observer in the inquiry.
7.It is further submitted that every car is taken to ensure that examiner engaged as seconded FOI does not hold any managerial position. As per Para 6.2 of CAR section 8 series A Part III the pay, allowances, progression in service, perks etc of seconded Flight Operation inspector during their secondment to DGCA shall be protected as per the existing provisions, by their parent company. However, if there is lack of expertise, under Para 7.3, DGCA shall retain the flexibility of reviewing the requirement. There is no conflict of interest as FOI seconded from the industry work under supervision of DGCA.
8. The 1st respondent has been engaged on temporary basis by the DGCA for the safety over-sight and other functions. The work is assigned to him in the planned manner and duly supervised. Therefore, no cause of action has arisen. Regarding Para 12 it is submitted that as per Para 6.2 of CAR Section 8 series A Part III provides progression in service. Therefore, no violation of CAR has been taken place. Further, seconded FOI worked under control and supervision of DGCA. Therefore, the issue of conflict of interest does not arise. The work is assigned to each FOI in the planned manner and the output is reviewed to ensure that they contributed to work for the purpose. The reliefs prayed for in the petition are vague and not maintainable. The petition is filed with the malicious intent. Adequate safeguard exist to ensure that FOIs do not act in a manner prejudicial to safety of the operation and interest of DGCA."
11. However, it is unnecessary to deal with the circumstances that led to the suspension of the petitioner as well as having been grounded by the action of the DGCA. The first respondent in his counter affidavit dated 21.07.2012 stated that being a Chief Pilot ATR of the Jet Airways, he is not performing any managerial responsibilities in the airlines and he continued to perform the job which he was performing before his appointment as FOI. His pay and other conditions of service including promotional opportunities is itself protected and the secondment to the third respondent as FOI is purely on honorary basis and not for any monetary consideration. While performing the duties assigned by DGCA, he cannot claim any flying allowances and other perks from the third respondent. All the expenses including accommodation, while performing the duties of FOI are borne by him from his own pocket and they are not reimbursed by the third respondent or by the Jet Airways. Even while performing as FOI, he has continued to fly the aircraft for which he was engaged. There is no conflict of interest in his continuing as Chief Pilot ATR with Jet Airways with his role as FOI since the very basis of secondment itself recognizes the continued employment of such FOIs by the parent airlines. The petitioner has misconstrued the provisions of Civil Aviation Requirements. There are only 31 pilots deputed by various airlines who are working as FOIs under the control of the third respondent. Out of 31, as many as 16, including the petitioner retained their position in their parent airlines. In view of the complete paucity of FOIs, the third respondent has permitted all the the FOIs to retain their position with their parent airlines. Similarly, even in the case of other airlines like Air India, Alliance and King Fisher, FOIs are still continued to hold their original position with the parent airlines. Even prior to his selection as FOI in September 2009, he was a Type Rated Examiner on the ATR. The petitioner's attempt to confuse the provisions of Clause 6 with that of Clause 4 is misleading. While Clause -4 is the pre-requisite for appointment and selection as FOI, Clause 6 only prescribes the terms and conditions of such secondment, which DGCA has the power to review in terms of Clause 7.3 By designation as FOI, a person do not seize to be an employee of their respective airlines except on the date when they were assigned duties by DGCA. The post of FOI is only honorary post with no perks involved.
12. Though the petitioner attempted to show that in the hierarchy of persons manning the Jet Airways, the post of Chief Pilot ATR is a managerial Post and there will be conflict of interest in holding the post of FOI as well as holding the managerial post in the airlines, this court is not inclined to hold that the writ in the nature of quo warranto is maintainable under the said circumstances. In fact as held by the third respondent, due to paucity of examiner, they have been making use of the persons working in various airlines as FOIs and no perks or salaries are paid for holding the said post. A list of such persons as approved examiners of various airlines was also produced by the third respondent.
13. The writ petition is clearly misconceived. It is only because the petitioner was imposed with the penalty by the Enquiry Panel, in which the first respondent is also acting as FOI, the petitioner is attempting to wriggle out of the said penalty. The fact that in this quo warranto petition, the petitioner has also filed M.P.No.2 of 2012 dealing with his own enquiry clearly shows that his attempts are not bonafide. This court is satisfied with the explanation offered by the third respondent. In the absence of any statutory violation in the first respondent holding the post of FOI, no writ, more particularly in the nature of quo warranto is maintainable. Hence, the writ petition stands dismissed. However, there shall be no order as to costs. Connected miscellaneous petition is closed.
21.01.2013 Index : Yes / Internet : Yes / svki To
1.The Enquiry Panel, Jet Airways India Limited, Siroya Centre, Sahar Airport Road, Andheri (East), Mumbai 400 099.
2.The Director General of Civil Aviation, Office of the Director General of Civil Aviation, Technical Center, Opp Safdurjang Airport, New Delhi.
K.CHANDRU,J.
Svki Order in W.P.No.8471 of 2012 21.01.2013