Prasad A. and Ors. Vs.Union of India and Ors. - (High Court of Kerala) (16 Oct 2020)

When Circulars are issued by the DGCA to ensure public safety, the right to life guaranteed by the Constitution is not violated as same is subject to restrictions

MANU/KE/2847/2020

Civil

Present 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.

The Director General of Civil Aviation (DGCA), as per an order F. No. DGCA.15032(02)/1/2019-DAS dated 16th September, 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 16th September, 2019 to the personnel engaged in maintenance of communications, navigations and surveillance (CNS) also.

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 16th September, 2009 provides for procedure for Breath Analyzer examination.

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 7th September, 2020 would sufficiently protect examinees from the chance of infection.

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. 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. Writ petitions dismissed.

Tags : FUNDAMENTAL RIGHTS CIRCULAR LEGALITY