Yashwanth Shenoy vs.the Union of India and Anr. - Court Judgment

$~33 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 10862/2017 & CM No.44492/2017 % Date of decision :

18. h April, 2018 YASHWANTH SHENOY ........ Petitioner

Through : Mr. Ashok Kr. Verma, Adv. with petitioner in person versus THE UNION OF INDIA AND ANR. ........ RESPONDENTS

Through : Ms. Anjana Gosain, Adv., Capt. S. Kapahi, SFOI, Mr. Ashutosh Vasistha, Director (Operations) and Mr. R.S. Jamwal, Dy. Director(Operations) Mr. Rachit Mittal & Mr. Ankit Khera, Advs. for R-6/NOIDA Mr. Alok Sangwan, AAG (Haryana), Utkarsh Srivastava and Mr. Sunny Kadiyan, Advs. for HUDA Mr. CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE C.HARI SHANKAR JUDGMENT (ORAL) GITA MITTAL, ACTING CHIEF JUSTICE1 This writ petition has been instituted in public interest by an advocate concerned with aviation safety. W.P.(C)No.10862/2017 Page 1 of 17 The writ petition asserts that aviation safety has attained critical levels on account of large scale violations of the applicable laws, rules and regulations. It is contended that the impact of pilot fatigue has been a direct cause or possible cause for air accidents/incidents. The petitioner has emphasized that worldwide many aviation accidents which have occurred are attributable to pilot fatigue and, in the Indian context, attributable specifically to exemptions and variations from the Flight Duty Time Limit Regulations effected by the concerned authorities.

2. The issue pressed by the petitioner is within a narrow legal conspectus.

3. Our attention has been drawn to the provisions of the Aircraft Act, 1934. We have also been taken through the Aircraft Rules, 1937 (framed in exercise of powers conferred by Sections 5 and 7 and Section 8(2) of the Aircraft Act, 1934 as well as Section 4 of the Indian Telegraph Act, 1885). These rules were notified vide notification No.V- 26 on the 23rd of May, 1937 in supersession of the Aircraft Rules, 1920. A further amendment thereto has been effected on 13th January, 2015.

4. Keeping in view the issues pointed out by the petitioner, it is essential to consider the earlier Rule 42A of the Aircraft Rules, 1937 as was implemented w.e.f. 23rd March, 1937. For expediency, we extract this rule hereunder : W.P.(C)No.10862/2017 Page 2 of 17 “42A. Pilot not to fly for more than 125 hours during any period of 30 consecutive days.— No pilot of a flying machine, shall, in his capacity as such pilot, fly for more than 125 hours during any period of 30 consecutive days: Provided that without prejudice to the provisions of rule 160, the Director-General may, subject to such conditions and limitations as he may specify, by order in writing, exempt any such pilot from the provisions of this rule. Explanation.—For the purposes of this rule, the flying time of a pilot either as solo pilot-in-command of an aircraft will be counted fully and the flying time of a pilot engaged as co- pilot or supernumerary pilot will be counted at 80 per cent. of the flying time. (Emphasis by us) 5. It is noteworthy that the proviso to Rule 42A empowered the Director General to exempt any pilot from the provisions of the rule by an order in writing and subject to such conditions and limitations as he may specify.

6. We may also extract from Part XII B ‘Regulatory Provisions’ of the Aircraft Rules, 1937, the Rule 133A captioned ‘Directions by Director-General’ which accepts the Director General to issue directions through notices which reads as follows : “133A. Directions by Director-General- (1) The Director- General may, through Notices to Airmen (NOTAMS), Aeronautical Aeronautical Information Circulars (AICs), Notices to Aircraft Owners and Maintenance Engineers and publication entitled Civil Aviation Requirements, special directions not Publication, Information issue W.P.(C)No.10862/2017 Page 3 of 17 inconsistent with the Aircraft Act, 1934 (22 of 1934) or these rules, relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. (2) The Civil Aviation Requirements under sub-rule(1) shall be issued after placing the draft on the website of the Directorate General of Civil Aviation for a period of thirty days for inviting objections and suggestions from all persons likely to be affected thereby; Provided the Director General may, in the public interest and by order the requirements of inviting such objections and suggestions or reduce the period for submitting such objections and suggestions. in writing, dispense with (3) Every direction issued under sub-rule(1) shall be complied with by the person or persons to whom such direction is issued. (4) The Director-General may, by general or special order in writing, exempt any aircraft or class of aircraft or any person or class of persons from the operation of the directions given in the publication entitled ‘Civil Aviation Requirements’ under this rule, either wholly or partially, subject to such conditions, if any, as may be specified in such order.” 7. In purported exercise of the powers under Rule 42A and Rule 133A, the office of the Director General of Civil Aviation issued the ‘Civil Aviation Requirements’ (CAR) which came into effect from 11th August, 2011”. It is noteworthy that the ‘CAR superceded requirements contained in AIC-28 of 1992 with respect to operators of and flight crew engaged in scheduled/non-scheduled air transport operations and general aviation aeroplanes operations’. W.P.(C)No.10862/2017 Page 4 of 17 8. The flight duty time limitations for domestic and neighboring countries were prescribed in para 6 and the limitations for international operations were prescribed in para 7 of the CAR, which read as follows: “6. Requirements for domestic and neighbouring countries operations :

6. 1 Daily maximum flight time limitations during any 24 consecutive hours : Crew Complement Maximum Flight Time Limitation/Max Number of Landings 8 hours/up to 6 landings For day operations Two-Pilot Operations 9 Hours/up to 3 landings For night operations 9 Hours/up to 2 landings *Maximum Number of Landings is further dependent on Flight Duty Period. 6.2 Cumulative flight time limitations Cumulative Period Flight time Limitation (Hours) In 7 consecutive days In 30 consecutive days In 365 consecutive days 35 125 1000 6.3 Operations Maximum Daily Flight Duty Period – Two Pilot 6.3.1 Maximum Daily Flight Duty period for two pilot operation shall be as per the following table : W.P.(C)No.10862/2017 Page 5 of 17 Maximum Daily Flight Duty Period (FDP) Limitation Maximum Number of landings Maximum Time Limitation Flight 12.5 hours 2 for night operations 9 hours 3 for day operations 12 hours 11.5 hours 11 hours 4 5 6 8 hours **Reduction of Flight duty period due to operation in WOCL63.2 When the FDP starts in the WOCL, the maximum FDP stated in above table shall be reduced by 100% of its encroachment up to a maximum of two hours. When the FDP ends in or fully encompasses the WOCL, the maximum FDP stated in above points shall be reduced by 50% of its encroachment.

7. REQUIREMENTS OPERATIONS FOR INTERNATIONAL71 international operations during any 24 consecutive hours : Daily maximum limitations flight time for Crew Complement Flight Maximum Limitation/Max Number Landings** Time of Two-Pilot Operations 10 hours/ up to 1 landings For day operations 9 hours/up to 3 landings For night operations W.P.(C)No.10862/2017 Page 6 of 17 Three-Pilot Operations 12 Hours/1 landing 9 hours/up to 2 landings Four-Pilot Operations 16 Hours/1 landing Four-Pilot Operations* ULR More than 16 hours *ULR Operations needs specific approvals of DGCA on City Pairs and case-to-case basis ** Maximum Number of Landings are further dependent on Flight Duty Period 7.2 Cumulative flight time limitations Cumulative Period Flight Time Limitation (Hours) In 7 consecutive days (only two pilot for operations) In 30 consecutive days In 365 consecutive days 35 125 1000 7.3 Operations Maximum Daily Flight Duty Period – Two Pilot 7.3.1 Maximum Daily Flight Duty period for two pilot operation Maximum Daily Flight Duty Period (FDP) Limitation** Maximum Number of landings shall be as per the following table: Maximum Flight Time Limitation 13 hours 1 10 hours 12.5 hours 2 for night operations 9 hours W.P.(C)No.10862/2017 Page 7 of 17 3 for day operations **Reduction of Flight duty period due to operation in WOCL73.2 When the FDP starts in the WOCL, the maximum FDP stated in above points shall be reduced by 100% of its encroachment up to a maximum of two hours. When the FDP ends in or fully encompasses the WOCL, the maximum FDP stated in above points shall be reduced by 50% of its encroachment. 7.4 Augmented Crew 7.4.1 The maximum flight duty period may be extended in accordance with the following table of the flight crew is augmented Maximum extension of the FDP Augmented crew (3 pilots) Double crew (4 pilots) 2H4 4H6 Rest facility available Rest seat Bunk (a) In flight, rest of less than 3 hours doesn’t allow for the extension of the FDP. (b) The applicable Flight Duty Period may be increased up to a maximum of 16 hours in case of Rest Seat and up to a maximum of 18 hours in case of Bunk. In case of double crew, rest facilities shall be available for both pilots not on active duty. (c) In case of augmented/double flight crew, the division of duty and rest between the flight crew members being relieved will be kept in balance, which would be spelt out in detail in the Scheme of the operator. W.P.(C)No.10862/2017 Page 8 of 17 Note: Scheme shall specify that Flight time will be counted only when the crew in ‘on controls’. (d) Rest Seat will be at least a ‘Business Class’ seat reclining to at least 40 degree back angle to the vertical, outside the cockpit and separated from passengers by a dark curtain. (e) Crew shall be allowed to return to controls only after 30 minutes of waking after bunk/seat rest, which may be part of the rest of 3 hours.” 9. Certain “General Requirements” including mandatory period of rest before a flight were prescribed in para 8, which reads as follows :

8. GENERAL REQUIREMENTS the neighbouring countries, shall 8.1 An operator shall follow the requirements of this CAR based on type of flight being operated i.e. if all sectors of a then flight are requirements for be sector of the flight falls in followed and in case even one flight international operation then for the be followed. 8.2 requirements of ‘international Operations’ shall Duty Period: within ‘domestic operations’ full/entire 8.2.1 shall accept any duty to exceed: No operator shall assign and no flight crew member (a) 190 duty hours in any 28 consecutive days, spread evenly as practicable through out this period; (b) 100 duty hours in 14 consecutive days; and (c) 60 duty hours in any seven consecutive days. 8.3 8.3.1 Minimum Rest (Before a flight) Rest:

8. 3.1.1 The minimum rest, which must be provided before undertaking a flight duty period, shall be: At least as long as the preceding duty period, OR W.P.(C)No.10862/2017 Page 9 of 17 (a) (b) (c) 12 hours, 14 hours on crossing 3 time zones, or 36 hours on crossing 8 time zones whichever is the greater; 8.3.1.2 If the preceding duty period, which includes any time spent on positioning, exceeds 18 hours, then the ensuing rest period shall include a local night. 8.3.1.3 Period of transportation to and from an airport shall neither be counted towards duty time nor rest period. The operator shall include in the ‘Scheme’ the optimum time of transportation after taking into account various factors and on ensuring that the rest period does not get reduced below the minimum rest requirements. 8.3.2 Rest after return to base 8.3.2.1 An operator shall ensure that effects on crew members of time zone differences will be compensated by additional rest as specified below. 8.3.2.2 Minimum rest including local nights shall be given, according to the table below, when coming back to home base, to any crew member who has been away from the home base in such a way that the WOCL had to be modified. Time zone difference Hours of rest Local nights More than 3 to 7 Beyond 7 36 72 2 3 Time zone difference” in this table is the time zone difference between the starting and finishing points of the initial duty. W.P.(C)No.10862/2017 Page 10 of 17 8.3.3 Weekly Rest An operator shall ensure that the minimum rest is increased periodically to a weekly rest period, being a 36-hour period including two local nights, such that there shall never be more than 168 hours between the end of one weekly rest period and the start of the next. 8.4 Reporting time:

8. 4.1 Crew report times shall be specified by the operator realistically, which reflect the time required to complete pre- flight duties, both safety and service-related, but shall not be less than 45 minutes, and 8.4.2 A standard allowance of 30 minutes for major operators and 15 minutes for others shall be added at the end of flight time to allow for the completion of checks and records. 8.4.3 For record purposes, the pre-flight report time shall count both as duty and as flight duty, and the post-flight allowance shall count as duty.” 10. Our attention has been drawn by Ms. Anjana Gosain, learned counsel who appears for the respondents to para 4.2 of this CAR which reads as follows : “4.2 DGCA may approve, in exceptional circumstances, variations to these regulations on the basis of a risk assessment provided by the operator. Approved variations shall provide a level of safety equivalent to, or better than, that achieved through the prescriptive fatigue management regulations specified in this CAR.” (Emphasis by us) 11. It is undisputed that in exercise of the discretion conferred upon him by para 4.2 of CAR, the Director General of Civil Aviation has on W.P.(C)No.10862/2017 Page 11 of 17 several occasions granted variations and exemptions to various aircraft operators. We have been provided a consolidated list of variations granted to various operators to the Regulations in various circumstances by Ms. Anjana Gosain, learned counsel for the respondent no.2, which is taken on record.

12. The definitions of the expressions ‘Flight Duty Period’, ‘Flight Time’, ‘Rest Period’, and ‘Window of Circadian Low’ as contained in para 3 of the CAR deserve to be noted and read as follows : “3.2 Duty. Any task that flight crew members are required by the operator to perform, including, for example, flight duty, administrative work, training, positioning and standby when it is likely to induce fatigue. 3.3 Duty period. A period which starts when a flight crew member is required by an operator to report for or to commence a duty and ends when that person is free from all duties. 3.4 Fatigue. A physiological state of reduced mental or physical performance capability resulting from sleep loss or extended wakefuleness, circadian phase, or workload (mental and/or physical activity) that can impair a crew member’s alertness and ability to safely operate an aircraft or perform safety related duties. 3.5 Flight Duty Period. A period which commences when a flight crew member is required to report for duty that includes a flight or a series of flights and which finishes when the aeroplane finally comes to rest W.P.(C)No.10862/2017 Page 12 of 17 and the engines are shut down at the end of the last flight on which he/she is a crew member. 3.6 Flight time. The total time from the moment an aeroplane first moves for the purpose of taking off until the moment it finally comes to rest at the end of the flight. xxx 3.12 Rest period. An uninterrupted and defines period of time during which a crew member is free from all duties and airport standby. xxxx the circadian 3.17 Window of Circadian Low (WOCL) is best estimated by the hours between 0200 and 0600 for individuals adapted to a usual day-wake/night sleep schedule. This estimate of the window is calculated from scientific data on low of performance, alertness, subject report (i.e. peak fatigue), and body temperature. For flight duty periods that cross 3 or fewer time zones, the window of circadian low is estimated to be 0200 to 0600 home- base/domicile time. For flight duty periods beyond 3 or more time zones, the window of circadian low is estimated to be 0200 to 0600 home-base/domicile time for the first 48 hours only. After a crew member remains more than 48 hours away from home- base/domicile time, the window of circadian low is estimated to be 0200 to 0600 referred to local time at the point of departure.” 13. The definitions speak for themselves. It cannot be contended or held that calling upon a pilot to undertake a flight when he is fatigued or placed within the ‘Window of Circardian Low’ would reduce the level W.P.(C)No.10862/2017 Page 13 of 17 of alertness of flight crew members and thereby imperil the safety of the passengers as well as of the aircraft.

14. On 16th September, 2016, the legislature effected a second amendment to Rule 42A of the Aircraft Rules, 1937 and substituted the aforesaid extracted rule with the following : “42A. Fatigue Management of Flight Crew and Cabin Crew Members.― (1) Taking into account the likely impact of fatigue on the level of alertness of flight crew members and cabin crew members, the maximum limits of flight time, flight duty period and duty period of flight crew members as well as cabin crew members, and also the minimum rest periods required to be observed by such crew members, may be specified by the Director-General. (2) No flight crew member or cabin crew member of a flying machine registered in India, or wet leased by an Indian operator, shall contravene the limitations stipulated by the Director-General under sub-rule (1). (3) Every Indian operator shall establish a scheme of flight and duty time limitations and minimum rest periods for its flight crew members as well as cabin crew members in accordance with the stipulations made by the Director- General under sub-rule (1) and submit the same to the Director-General for approval and after approval by the Director-General, such scheme shall form part of the Operations Manual of the concerned operator. Explanation.—For this rule, ‘Indian operator’ means an operator having his principal place of business, or his permanent residence, in India.” the purposes of (Emphasis supplied) W.P.(C)No.10862/2017 Page 14 of 17 15. The change to the caption of the rule to ‘Fatigue Management of Flight Crew and Cabin Crew Members’ reflects the importance and significance attached by the legislature to the aspect of fatigue of the crew and its consequential impact on the safety and security of the aircraft and the passengers. Most importantly, the proviso to the earlier Rule 42A, which permitted discretion to the Director General to permit exemptions to any pilot from the rigours of regulations under CAR was taken away.

16. Thus, upon the amended rule 42A taking effect on 16th September, 2016 (vide GSR No.911(E)) no discretion whatsoever survived with the Director General to permit any exemption or variations from the stipulations of the maximum flight time and minimum rest time which have been prescribed. The legislature also took away the prescription of the maximum of 125 hours and made a specific reference to ‘maximum limits of flight time, flight duty period and duty period’ of a crew member and also ‘minimum rest periods’ required to be observed by such crew members.

17. The Civil Aviation Requirements (CAR) have been issued in purported exercise of the powers conferred by rule 42A and rule 133A of the Aircraft Rules, 1937. So far as the prescription of a maximum of flight time for pilots is concerned, the same stands prescribed under the earlier Rule 42A alone and no other rule.

18. The Civil Aviation Requirements (CAR) of 11th August, 2011 was an executive order specifying the conditions and limitations within which the pilot had to fly for 125 hours. Upon the amendment to Rule W.P.(C)No.10862/2017 Page 15 of 17 42A taking effect, the Director General remains enjoined to specify the maximum limits of flight time, full duty period and duty period of flight required to be observed by such crew members as also the minimum rest period.

19. In the light of the above discussion, there is substance in the submission of the petitioner that the Director General of Civil Aviation has no authority whatsoever to grant any exemption or variation from the maximum limits of flight time, flight duty period, duty period as well as the minimum rest period.

20. It cannot be disputed that even the amended rule 42A mandates that it is the Director General who has to specify the limits of the maximum flight time and the minimum rest period. It also cannot be disputed that it would be for the Director General to undertake a review or a fresh examination of the Civil Aviation Requirements as effective since 2011 to ensure that they conform to the latest legal requirements and the factual position.

21. It is not disputed that so far as these periods are concerned, the Director General of Civil Aviation has prescribed them under the Civil Aviation Requirements of 11th August, 2011.

22. In view of the above, it is directed as follows : (i) The respondents are bound to comply with Rule 42A of the Aircraft Rules as amended on 16th September, 2016 so far as Fatigue Management of Flight Crew and Cabin Crew Members is concerned and to specify ‘the maximum limits of flight time, flight duty period and W.P.(C)No.10862/2017 Page 16 of 17 duty period of flight crew members as well as cabin crew members, and also the minimum rest periods required to be observed by such crew members’ after taking into account the ‘likely impact of fatigue on the level of alertness of flight crew members and cabin crew members’ (ii) The Director General of Civil Aviation is directed to undertake an examination of the existing Civil Aviation Requirements (CAR), 2011 in accordance with the provisions of the amended Rule 42A and Rule 133A of the Aircraft Rules, ensuring that the exercise is completed within a period of one year from today. (iii) The respondents shall ensure that to the extent that the Civil Aviation Requirements (CAR), 2011 makes a prescription of the flight duty time limitation, the same shall continue to guide all decisions with regard to the schedule of the flight and cabin crew till such time any alternation or modification is effect thereto by the Director General. This writ petition is disposed of in the above terms. No order as to costs. CM No.44492/2017 In view of the disposal of the petition, this application does not survive for adjudication and is dismissed. Dasti under signatures of the Court Master. APRIL18 2018/kr ACTING CHIEF JUSTICE C.HARI SHANKAR, J W.P.(C)No.10862/2017 Page 17 of 17