DELHI HIGH COURT ALLOWS ALCOHOL TESTING OF AVIATION PERSONNEL FOR PASSENGER SAFETY

The Hon’ble Bench of the #HighCourt of #Delhi in the case of Air Traffic Controllers Guild (India) v Union of India & Others [W.P.(C) 2946/2020], vide its #Judgment dated 11.05.2021 held that testing #aircraft #pilots, #cabincrew and #airtrafficcontrollers for #alcohol cannot be completely exempted as it could be detrimental to #passenger #safety.

The issue involved in this case is related to the #BreathAnalyzerTest, which air traffic controllers and commercial pilots have to undergo prior to joining duty at the airports.

In this case, the Air Traffic Controllers Guild, India (“Petitioner”) is a representative Association of the Air Traffic Controllers that are working under the Airports Authority of India. The Air Traffic Controllers (ATCOs) have to undergo Breath Analyzer Test prior to joining duty at the airports. However, due to COVID-19 Pandemic, it was decided that on a random basis, 10% of the Air Traffic Controllers will be subject to the Breath Analyzer Test. The Petitioner has challenged this Protocol before the Delhi High Court as the Breath Analyzer Test uses equipment that could result in the spread of the COVID-19 Virus.

The Hon’ble High Court of Delhi, vide its Order dated 23.03.2020 passed an Interim Order and suspended the use of the Breath Analyzer Test until further orders. The High Court also directed all Air Traffic Controllers to provide a self-declaration that they would not report to duty under the influence of alcohol. The Court further directed the constitution of a technical committee under the Director General Medical Services (DGMS) (Air) (Technical Committee) and directed the Technical Committee to submit a report in this regard. The Technical Committee under the DGMS (Air) submitted its Report and the Interim Order dated 23.03.2020 was modified vide Order dated 03.09.2020.

However, the Medical Committee formed by the DGMS (Air) submitted a separate report on the same issues in another similar Writ Petition. In reference to the Report submitted by the Technical Committee formed by the DGMS (Air), further issues were framed by the Delhi High Court, vide its Order dated 05.05.2021. The High Court also sought another report to be submitted by the DGMS (Air) Committee on the issues framed by the Delhi High Court regarding Breath Analyzer Test of Aviation Personnel. The DGMS (Air) in its Report recommended the following:

(1) That the conduct of the Breath Analyzer Test should be done in a well-ventilated environment that will reduce the risk of spread of COVID-19. However, Breath Analyzer Test has to be conducted as per the procedure laid down in the Directorate General of Civil Aviation (DGCA) Regulations issued from time to time. If the same is not possible, then, the Breath Analyzer Test room should be well ventilated and sanitised after every test.

(2) This random Breath Analyzer Test should be conducted for pilots, cabin crew, ATCOs and other stakeholders.

(3) However, keeping in view the present COVID-19 Pandemic, the number of Breath Analyzer Tests conducted per day may be kept at a level that ensures balance between passengers’ safety and safety of the crew undergoing Breath Analyzer Test.

Considering the said recommendations made by the DGMS (Air) and after hearing all the Counsels for the Respondents, the High Court of Delhi vide its Order dated 11.05.2021 held, observed and directed as follows:

1. That both the Reports of the DGMS (Air) do not recommend heavy testing through Breath Analyser method in the prevalent circumstances.
2. There is however no doubt that testing for alcohol cannot be completely exempted in as much as the same could be detrimental to passenger safety.
3. It is mandatory for all the personnel to give an undertaking and a declaration that they have not been exposed to alcohol consumption in the last 12 hours before duty.
4. The DGCA shall direct that the Breath Analyser test at all airports would be conducted to the extent feasible in a much bigger and an open area.
5. The testing shall be random for all personnel i.e. Air Traffic Controllers, pilots, cabin crews and other personnel. However, in so far as the pilots and cabin crew are concerned, there will be a 5% cap on the number of personnel who are tested, for a period of 3 months.
6. The Court directed that not more than 6 personnel shall be tested within the duration of one hour.

In view of the above, the High Court further emphasized that any failure to comply with the undertaking and declarations submitted by the Air Traffic Controllers and other aviation personnel  would have the penal consequences in accordance with law. Therefore, the Breath Analyser test has been allowed to continue to be done on random basis.

Lakshmi Vishwakarma

The Indian Lawyer & Allied Services

Senior Legal Associate