July 4, 2008

Flight Safety Can’t Be Compromised: HC

By Swati Deshpande

MUMBAI: "The larger public interest and even the safety of flights and pilots were literally thrown to the winds, on the dictates of the civil aviation minister, to protect the financial and other interests of a few wealthy airline operators." With these strong words, the Bombay high court on Tuesday stayed a recent circular issued by the Director General of Civil Aviation (DGCA) that essentially curbed crucial rest hours between flight duty for pilots and the cockpit crew.

A bench comprising Justices S B Mhase and Ashutosh Kumbhakoni, said, "No one was even heard before the aviation ministry's knee- jerk reaction to the representation made by airline operators and no reasons were set out for putting the 2007 rules in abeyance."

The court said the ministry was free to undertake a study to revise the 2007 rules but clarified that pending such revision, it must continue last year's Civil Aviation Requirement (CAR).

The court was passing orders on a petition filed by three pilots' unions belonging to Indian Airlines, Air India and Jet Airways. The unions had challenged the validity of the DGCA circulars of May 29 and June 2, 2008. The bench, without any hesitation, rejected a plea for an eight-week stay of its order.

The plea was made by S U Kamdar, counsel for National Aviation Company of India Limited (NACIL), the new entity for the merged Indian Airlines and Air India, which had intervened to support the DGCA and which said that it would take time to reschedule the flight duty chart which was prepared as per the 1992 guidelines.

The judges were curt. "If the DGCA could put the 2007 guidelines in abeyance overnight then it is equally possible for it to change the scheduled programme immediately," they said.

The bench slammed the aviation ministry for issuing "unreasonable and illegal" circulars which revived rules dating back to 1992 after putting in abeyance the scientifically framed rules of 2007 which govern the flight duty hours.

The 2007 rules were pilot-and safety-friendly and provided for adequate rest hours between flights, especially long-haul flights that lasted for 12-14 hours and criss-crossed several time-zones.

The pilots, through their counsel Sanjay Singhvi, had pointed out that "the world over, 30% of airline accidents were due to fatigue- related trauma errors by pilots". In Mumbai, as TOI had reported recently, two pilots had actually fallen asleep in the cockpit due to fatigue and their plane had flown onwards to Goa instead of landing in Mumbai.

Calling for immediate implementation of the 2007 rules, the court said, "We find that the safety of the public at large and of pilots is very important and it can't be put at stake because airline operators are suffering in their business."

The judges were clear that flight safety could not be compromised at any cost. The 25-page order, written by the newly appointed Justice Kumbhakoni, was replete with stern admonitions and criticism for the ministry's "mindless" move.

"It appears that the DGCA just acted on the dictates of the civil aviation minister (Praful Patel) without any application of mind in a most arbitrary and irrational manner without following the mandatory procedure." Besides, the court said, "By putting the 2007 rules in abeyance, the 1992 rules do not automatically get revived. In fact once the 2007 rules came into existence, the 15-year-old rules ceased to exist in law."

The judges said since 1992, technology in manufacture and the operation of aircraft had undergone a sea change and these were precisely the reasons why the outdated rules were reviewed in 2006 and changed the following year along the lines of international best standards.

The court found no merit in solicitor general Goolam Vahanvati's submission on behalf of the DGCA that the aviation minister had the authority, and even the director general himself had absolute powers, to issue the circulars without giving anyone a hearing. The HC said, "Even otherwise, the DGCA ought to have followed the principles of natural justice by inviting suggestions and holding discussions with all stakeholders before taking the drastic decision of withdrawing the 2007 rules."

The judges said caustically, "In a democracy, the concerned minister is duty-bound to act as per the law and to protect public safety instead of protecting the financial interests of airline operators."

The court also rejected advocate general Ravi Kadam's arguments that the DGCA decision was "a policy-making exercise" in which the courts could not interfere.

The judges said his arguments were "not substantial and on slippery ground". The ministry had argued that the 1992 rules did not in any way compromise the safety of flights or of passengers.

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