Jyoti Singh DECISION
Jyoti Singh, J.
1. Hearing has been conducted through Video Conferencing.
2. Petitioner is a regular employee of Air India and was working in 2017 as a Senior Assistant General Manager (Commercial).
3. Vide order dated 28.06.2017, Petitioner was approved for a foreign posting as Manager, Denmark and according to the Petitioner, the tenure of posting was 3 years. Vide order dated 20.05.2020, Petitioner has been reposted back to India and is required to join Southern Region, Chennai. It is this order which is assailed by the Petitioner in the present petition. Principal contention in the present petition is that the Petitioner is suffering from certain health issues which makes her very vulnerable and if she travels back to India, in the present circumstances of the Pandemic Covid-19, there is a high risk of her catching infection both during the flight and after she lands at the Airport in India. Petitioner, therefore, requests that the Posting Order dated 20.05.2020 be kept in abeyance until things normalise and she is able to travel back to India without the risk of catching infection on account of Covid-19.
4. On the last date of hearing, Mr. Alam, on instructions, had submitted that if the Posting Order was kept in abeyance for a period of three months, the Petitioner was willing to give an undertaking that at the end of three months, she would not resist the Posting Order and would immediately return back to India. Mr. Sen, learned Senior Counsel, appearing on behalf of Air India, on the last date of hearing, had sought time to take instructions in the matter.
5. Mr. Sen, learned Senior Counsel submits, on instructions, that the Petitioner stands relieved from her present assignment, at Denmark, by Relieving Order dated 28.05.2020 to be effective from 02.06.2020, and therefore, the petitioner cannot seek stay of the Posting Order at this stage. Mr. Sen further submits that the concern of the Petitioner regarding her safe travel back to India has also been addressed. He points out that the issue of safe travel on the aircrafts in view of Pandemic Covid-19 was also, before the Supreme Court in the case of Union of India & Anr. vs. Deven Yogesh Kanani & Ors., in Special Leave Petition (Civil), Diary No(s).11629/2020 and the Bombay High Court in Deven Yogesh Kanani vs. Directorate General of Civil Aviation & Ors., decided on 15.06.2020. A High Level Expert Committee comprising of the OSD, Ministry of Health and Family Welfare, Government of India, Director, AIIMS, New Delhi, DG, ICMR and CMD, Medanta was constituted by the DGCA to recommend safety measures to be followed on the flights.
6. Relevant part of the order of the Supreme Court in Union of India & Anr. vs. Deven Yogesh Kanani & Ors. (supra) reads as under:
"We are of the considered view that the petitioner - Air India should be allowed to operate the non-scheduled flights with the middle seats booking upto 6th June, 2020. However, after that the Air India will operate non-scheduled flights in accordance with the interim order to be passed by the Bombay High Court thereafter.
In these circumstances, we propose to remand the matter to the Bombay High Court with a request to the High Court to pass an effective interim order after hearing all concerned on the date fixed i.e. 2nd June, 2020 by it or soon thereafter.
At this juncture, we would consider it necessary for the High Court to arrive at prima facie finding regarding the safety and health of the passengers qua the COVID-19 virus, whether the flight is scheduled flight or a non-scheduled flight.
Order accordingly.
We make it clear that the Director General of Civil Aviation is free to alter any norms he may consider necessary during the pendency of the matter in the interest of public health and safety of the passengers rather than of commercial considerations.
Needless to mention that in case the respondents feel aggrieved by this order, it shall be open to them to approach this Court. "
7. The operative part of the Minutes of the Committee are as under:
"15. After detailed deliberations, Committee recommends as follows:
a. If the passenger's load and seat capacity permit keeping the adjacent seat vacant, then the airlines shall allot the seats in such a manner that the adjacent seat is kept vacant.
b. If the number of passengers is more, than the members of the same family (living in the same house) can be allowed to sit together.
c. If physical distancing cannot be achieved due to passenger load, then additional protective measures should be provided to the individual occupying the intervening seat like 'wrap around gown' (Ministry of Textiles approved standards) to protect the upper parts of the passenger along with mask and face shield. This will create an additional protection between the passengers and also build confidence among the fellow passengers.
d. Airlines/Airports should explore the possibility of having a disinfection tunnel to ensure maximum safety of passengers. This should be adopted after due validation by concerned agencies.
e. No meals or drinking water on board except in extreme circumstances (health reasons).
f. Passengers to be provided with safety kits by airlines which include three layered surgical mask, face shield and adequate sanitizer (sachets/bottle).
g. The embarkation/disembarkation should be sequential and passengers should be advised by airlines to follow the instructions and not to rush to the entry/exit gate.
h. Airlines should set the air-conditioning system in such a way that the air gets replaced at the shortest possible intervals.
i. All aircraft to be sanitized after each trip as per the norms laid down by Regulator. At the end of the day each aircraft to be fully sanitized. Special attention to be paid to sanitize the seat belt.
j. Airplane lavatories to be cleaned/sanitized frequently during the flight.
k. Airlines to do health check up of all crew regularly. All flying crew to be given full protective suits.
l. In case of COVID-19 related medical emergency on board, aircraft disinfection to be carried with special attention to the affected suits.
The aforesaid measures should be in addition to those already prescribed by MoCA/DGCA."
8. Bombay High Court thereafter examined the matter and expressed its prima facie satisfaction on the measures recommended and being undertaken by the Airlines including Air India, for the safe travel of its passengers. Relevant part of the order in Deven Yogesh Kanani vs. Directorate General of Civil Aviation & Ors. reads as under:
"11. In view of the aforestated clarification of the Hon'ble Supreme Court dated 25th May, 2020, that the Director General of Civil Aviation is free to alter any norms he may consider necessary during the pendency of the matter in the interest of public health and safety of the passengers rather than for commercial considerations, on 26th/28th May, 2020, a High Level Committee of experts was constituted by the DGCA to meet and recommend certain safety measures to be followed on fights. The Expert Committee comprised of (i) Shri Rajesh Bhusan, OSD, Ministry of Health and Family Welfare, Government of India (ii) Dr. Randeep Guleria, Director, AIIMS, New Delhi (iii) Prof. Balram Bhargava, DG, ICMR, New Delhi and (iv) Dr. Naresh Trehan, CMD, Medanta Medicity.
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57. After considering the aforestated submissions of the Respondents and the Intervenor, and more particularly the Minutes of the Meeting dated 4th May, 2020 of the Air Transport Facilitation Committee and the Report of the High Level Committee of Experts dated 26th and 28th May, 2020, clarified by the Minutes dated 4th June, 2020, we are of the prima facie view that the safety and health of the passengers on board the aircraft qua Covid-19 virus is adequately taken care of even if the middle seat of the aircraft is not kept vacant on account of passenger load and seat capacity. However, the Respondents and all other flight operators in the country shall during the air travel of passengers, strictly follow and implement the Order dated 31st May, 2020 as well as the applicable SOPs.
9. Mr. Alam, responding to the submissions of Mr. Sen submits that while, on paper, safety measures have been recommended, however, practically these measures are not being implemented and as recently as 3 days ago, a passenger died in the Air Craft on account of Cardiac Arrest. Mr. Alam reiterates his submission that it may not be safe for the Petitioner to travel in the present circumstances and the posting of the Petitioner be deferred for a short while.
10. Mr. Sen refutes this submission of Mr. Alam and submits that he has instructions to state that all safety measures will be taken to ensure safe travel of the Petitioner back to India. Mr. Sen assures the Court that apart from every other precaution, the following steps shall be followed with respect to the Petitioner:
(a). as a special case, Air India would provide a confirmed Business Class Ticket upto Chennai on an Air India Flight (wherever the aircraft has a Business Class configuration) to the Petitioner.
(b). At the time of boarding the Air India aircraft, Petitioner would be provided with a safety kit comprising of face shield, face mask, gloves and sanitizer at the cost of Air India strictly in consonance with the strict guidelines pertaining to Vande Bharat Mission Flights.
(c). In terms of the guidelines of the Ministry of Health and Family Welfare and as per the respective State Governments' Guidelines, if the Petitioner is required to undergo an Institutional Quarantine(s), the cost of the same would be reimbursed by Air India as per the policy.
(d). Petitioner would be entitled to transport her personal belongings upto 1750 kgs, free of cost, on Air India Flight.
(e). Petitioner would be paid TA/DA as per Company Rules.
11. Having heard the learned counsel for the parties, this Court is of the opinion that no ground has been made out by the Petitioner for quashing the Posting Order. Transfer is an exigency of service and it is not in the domain of the Court to interfere with a transfer order unless it is malafide or in violation of the transfer policy. None of the two exceptions have been either pleaded or have been substantiated by the Petitioner during the arguments. Even going by the averment of the Petitioner that the tenure of the posting was three years, which was disputed by Air India, the three years have come to an end and the Petitioner has no vested right to continue in Denmark.
12. Court has been taken through the orders of the Supreme Court and the Bombay High Court as well as the Recommendations of the Expert Committee and in my opinion the concern of the Petitioner for safe flight back to India stands adequately addressed by the safety measures recommended and being undertaken by the Airlines. Additionally, Mr. Sen has assured that all necessary steps shall be taken to ensure safe travel of the Petitioner including Institutional Quarantine, if required. Certain allowances, as mentioned above, shall also be disbursed to the Petitioner. The assurance given is taken on record and in my view no further orders are required in the present petition.
13. However, keeping in view the unprecedented situation that has arisen on account of the Pandemic Covid-19, this Court deems fit in the special circumstances of this case to permit the Petitioner to join back by 15th July, 2020.
14. It is made clear that the Petitioner will not misuse the indulgence granted by the Court and stay beyond the period permitted by the Court.
15. Petition and the pending application is disposed of in the above terms.
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