N. Nagaresh JUDGMENT
N. Nagaresh, J.
1. These writ petitions have been filed by the respective petitioners challenging the Breath Analyzer examination of the personnel engaged in Aircraft Maintenance, Air traffic control services, Aerodrome operations and Ground handling services for detecting consumption of alcohol, prescribed by the office of the Director General of Civil Aviation, New Delhi.
2. The Director General of Civil Aviation (DGCA), as per an order F. No. DGCA.15032(02)/1/2019-DAS dated 16.09.2019, made it mandatory for the personnel engaged in Aircraft Maintenance, Air traffic control services, Aerodrome operations and Ground handling services, to undergo a Breath Analyzer (BA) examination for detection of consumption of alcohol. The said order was issued under the provisions of Section 5(A) of the Aircraft Act, 1934, Rule 21A and Rule 24(3) read with Rule 133A of the Aircraft Rules, 1937. The DGCA extended the applicability of the Circular dated 16.09.2019 to the personnel engaged in maintenance of communications, navigations and surveillance (CNS) also, as per communication F No. DGCA.15032(02)/1/2019-DAS.
3. The petitioners, who are working within the Airport Authority of India premises, have approached this Court with these writ petitions in the backdrop of wide spread outbreak of Covid-19. According to the petitioners, Airport is the centre of Covid-19 infected and suspected persons. The Breath Analyzer examination for the petitioners and their colleagues, are conducted by the same paramedical staff and the same machine is being used. According to the petitioners, this increases the chances of transmitting Corona virus. If the petitioners get infected, then more personnel engaged in these services will be quarantined by the State authorities. It will hamper air traffic operations. The petitioners point out that the authorities were aware of this dangerous situation and hence Breath Analyzer examination was stopped for 15 days. However, subsequently, when the pandemic was spreading more virulently, the authorities resumed the BA examination.
4. The petitioners further point out that the airport Authority of India issued Circular No. A.60011/36/2015/HRPC/103 dated 09.03.2020 exempting its employees from marking Biometric Attendance in Aadhar based biometric attendance system. The exemption was made apprehending transmission of virus through palms. The Breath Analyzer examination is more dangerous, as regards infection.
5. Though the petitioners raised their concern in this regard, no positive response has come so far. Instead, the DGCA issued an order dated 13.03.2020 mandating strict compliance of the earlier orders/Circulars. In the circumstances, the petitioners seek to direct the DGCA to temporarily stop the Breath Analyzer examination conducted on the basis of afore orders/Circulars. The petitioners have also sought to direct the State of Kerala to invoke Section 2 of the Epidemic Diseases Act, 1897 in order to prevent the apprehended infection of Covid virus through Breath Analyzers.
6. Learned counsel for the petitioners argued that the Circulars issued by the DGCA are violative of the right to life of the petitioners. The limited number of Breath Analyzer apparatus are not even sanitised or sterilised after each use. A ground staff, who closely interact with the Aircraft and passengers who in turn appears for Breath Analyzer examination, help the virus to spread to the other staff in the Airport, through him. The fact that the Biometric Marking of attendance is dropped, would show that the authorities are aware of the potential of spread of the virus in Airports. Therefore, the writ petitions are to be allowed.
7. The Airport Authority of India (AAI) and the Airport Director filed a counter affidavit in W.P.(C) No. 8652/2020. The AAI submitted that every aviation personnel who is reporting for duty is required to submit an undertaking to the effect that he/she is not under the influence of alcohol and has not consumed alcohol/psycho active substance in the last 12 hours of the time of reporting for duty. Taking into account the possible spread of Corona virus through the apparatus used for Breath Analyzer examination, the DGCA has issued order No. DGCA/15031/4/2020-DAS dated 07.09.2020 prescribing strict precautions for averting any likelihood of Covid spread through the apparatus used in Airport premises. The concerns of the petitioners in this regard are satisfactorily addressed.
8. I have heard learned counsel for the petitioners and learned Standing Counsel for the respondents.
9. Section 5A of the Aircraft Act, 1934 reads as follows:-
"5A. Power to issue directions - (1) The Director-General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government may, from time to time, by order, issue directions, consistent with the provisions of this Act and the rules made thereunder, with respect to any of the matters specified in clauses (b), (c), (e), (f), (g), (h) and (m) of sub-section (2) of section 5, to any person or persons engaged in aircraft operations or using any aerodrome, in any case where the Director-General of Civil Aviation or such other officer is satisfied that in the interests of the security of India or for securing the safety of aircraft operations it is necessary so to do.
(2) Every direction issued under sub-section (1) shall be complied with by the person or persons to whom such direction is issued]."
Provisions are made for the security of Aircrafts and Air passengers. The Aircraft Rules, 1937 also provide for safety measures. Rule 21A of the Aircraft Rules, 1937 provides as follows:-
"21A. General safety - No person shall, act in any manner, either directly or indirectly, so as to-
(a) endanger safety and security of an aircraft or aircraft operation;
(b) cause interference with the normal functioning of any facility established for the safe and secure operation of aircraft; or
(c) obstruct or distract the functioning of any person entrusted with any responsibility towards ensuring safe and secure operation of aircraft."
It is to be noted that orders and directions issued under Section 5A are not required to be notified or published in Official Gazette, as per the provisions of Section 5A.
10. Rule 24 of the Rules, 1937 provides that-
"24. Prohibition on consumption of intoxicating and psychoactive substances -
(1) No person action as, or carried in aircraft for the purpose of acting as pilot, commander, navigator, engineer, cabin crew or other operating member of the crew thereof, shall have taken or used any alcoholic drink, sedative, narcotic or stimulant drug or preparation within twelve hours of the commencement of the flight or take or use any such preparation in the course of the flight, and no such person shall, while so acting or carried, be in a state of intoxication or have detectable blood alcohol whatsoever in his breath, urine or blood alcohol analysis or in a state in which by reason of his having taken any alcoholic, sedative, narcotic or stimulant drug or preparation, his capacity so to act is impaired, and no other person while in a state of intoxication shall enter or be in aircraft [or report for duty].
(2) No operator operating a domestic air transport service in India shall serve any alcoholic drink on board such an air transport service and no passenger travelling on such a service shall consume any alcoholic drink while on board.
(3) The holders of licences shall not exercise the privileges of their licences and related rating while under the influence of any psychoactive substance which might render them unable to safely and properly exercise the privileges of the licences and ratings.
(4) The holders of licences shall not engage in problematic use of substances."
Sub-Rule (3) of Rule 24 imposes restrictions on holders of licences to act under the influence of any psychoactive substance which render them unable to properly exercise the privileges of licences and ratings.
11. The security of Aircrafts and air passengers is of considerable concern to the national security as also public safety. The Circulars and orders issued by the DGCA therefore should be viewed in this angle. The Circular dated 16.09.2009 provides for procedure for Breath Analyzer examination. Clauses 7.1 to 7.3 of the said order read as follows:-
"7.1 Organization shall have a Doctor holding MBBS degree/trained Paramedics/Emergency Medical Technician (EMT)/Personnel holding BSC (Nursing)/Diploma (Nursing) to conduct the breath-analyzer examination at a designated place within the airport premises. Alternatively organizations may pool their resources including personnel used for conducting BA test or avail the breath-analyzer examination services of Govt./Govt. licensed private hospitals located in the premises of the aerodrome/Medical facilities established by Aerodrome operator. Such facilities shall be subjected to periodic checks by the DGCA.
7.2 Before each test, the Medical Personnel shall run an 'air blank' on the instrument and obtain a reading of 0.000. The Medical Personnel shall also carry out a control test on daily basis and keep a record of printout to ensure serviceability of both the breath-analyzer equipment and the printer. Any BA reading during examination of a personnel above 0.000 shall be considered as positive result. Breath-analyzer examination shall be recorded on camera and recording shall be preserved for a period of six months.
7.3 Breath-analyzer examination record shall be maintained as per the format given in Appendix I and Appendix II."
The concern pointed out by the learned counsel for the petitioners is that since before each test, the medical personnel shall run an "Air Blank" on the instrument, any personnel undergoing Breath Analyzer examination immediately after such Air Blank check is likely to be infected if the medical personnel running the Air Blank check is infected.
12. It may be noted that the DGCA was aware of the threat of Covid spread involved in the Breath Analyzer Examination and has issued an order dated 07.09.2020 which reads as follows:-
"In pursuance of Hon'ble Delhi High Court order dated 03.09.2020, DGCA order of even no dated 29.03.2020 shall stand modified in so far as related to Air Traffic controllers as under:
"Air Traffic Controllers shall be subjected to Breath-Analyzer examination w.e.f. 08.09.2020, as required under CAR Section-5, Series-F, Part-IV in a manner that 5% of them at a station per day are examined before commencing the duty."
The other aviation personnel required to undergo Breath-Analyzer examination under CAR Section-5, Series-F, Part-IV shall also be subjected to random Breath-Analyzer examination.
While conducting such Breath-Analyzer examination the employer organization shall ensure adherence of guidelines prescribed by DGMS (Air) as quoted below:
"The machine used for such random tests shall not be used for next 12 hours after the conduct of one test. Besides the random test, the authorities may also test any person who is suspected to have consumed psychoactive substance."
The conduct of Breath-Analyzer examination in respect of flight crew and Cabin Crew shall be governed by DGCA order of even no dated 04.09.2020."
Therefore, it is evident that the apparatus used for Breath Analyzer examination will not be used for next 12 hours after the conduct of one test. This will sufficiently meet the safety requirements as the Corona virus cannot survive for longer duration on surfaces ordinarily.
13. The concern expressed by the petitioners relating to infection through the Air Blank check is unfounded. Air Blank check is necessary for checking a Breath Analyzer to a performing test and to ensure that the instrument is starting from zero. The instrument is expected to display a reading of 0.000 when performing the Air Blank check. Some instruments require the Breath Analyzer to manually perform the Air Blank check, whereas other devices perform this function automatically. Some of the Breath Analyzer instruments will not allow the test to proceed if the Air Blank result is not 0.000. Even if the respondents are using an instrument which requires manual performance of Air Blank check, Clause 7.2 of the order dated 07.09.2020 would sufficiently protect examinees from the chance of infection. If the respondents are using Breath Analyzer equipment requiring Air Blank check to be conducted manually, then indeed such check will be conducted 12 hours prior to the BA Examination.
14. Forcing the petitioners to undergo Breath Analyzer Tests at times of virus pandemic, may affect their right to life under Article 21 of the Constitution of India. But, the right to life guaranteed by the Constitution is subject to restrictions in accordance with the procedure established by law. The impugned orders/Circulars have been issued by the DGCA in exercise of his statutory powers under Section 5A of the Aircraft Act, 1934. They are intended to ensure public safety. We are governed by a Constitution upholding democracy. Democracy is a method of finding proximate solutions for insoluble problems. The orders issued by the DGCA effectively address the concern of the petitioners as to the apprehended violation of their right to life likely to be caused by the use of BA apparatus, at the same time ensuring public safety.
15. In the circumstances, no further orders are required in these writ petitions as the orders issued by the DGCA sufficiently address the concern of the petitioners.
The writ petitions therefore stand dismissed.
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