Delhi High Court: Prathiba M. Singh, J., gave directions in the matter of three petitions relating to the Breath Analyzer Test (“BAT”) which Air Traffic Controllers (“ATCs”) and commercial pilots have to undergo prior to joining duty at the airports.
WP(C) 2946 of 2020 was filed by the petitioners which is the representative association of the ATCs working under the Airport Authority of India (“AAI”), they submitted that on a random basis 10% of the ATCs are subjected to the BAT which uses equipment that could result in the spread of the COVID-19 virus thus the use of the current equipment for conducting the BAT was prejudicial to the interests of the ATCs. The Court on 23-03-2020 as an interim measure had suspended the use of BATs until further orders. It had also tendered an assurance from all ATCs that they would provide a self-declaration that they would not report to duty under the influence of alcohol, as per the prevalent regulations. The court had also directed the constitution of a technical committee under the DGMS (Air) and had sought a report. The interim order was thereafter modified vide order dated 03-09-2020, after considering the report of the Committee.
WP(C) 4990 of 2021 was recently filed by the Indian Commercial Pilots Association owing to the recent spurt of Covid-19 infections that have been witnessed in India. The Petitioner sought exemption for commercial pilots, from undergoing the BATs.
WP(C) 5122 of 2021 was the third petition filed by Air Traffic Controllers guild, seeking immediate halt on the administration of the BAT, which could increase their chance of contracting COVID-19.
On 27-04-2021 the e Medical Committee formed by the DGMS (Air) had submitted a report to the Court and on 05-05-2021 after perusing the report of the DGMS (Air) and the Committee certain directions were issued by the Court and a further report was called for, pursuant to which DGMS (Air) had filed a report where the queries put to them have been answered.
Counsel appearing for DGCA submitted that as per the report an attempt shall be made in all the airports, to conduct the Breath Analyzer test in an open area, as far as possible. Even in the places where testing in the open area was not possible, it shall be ensured that the room where the testing was done, shall be sanitized after each test was undertaken. She further submitted that in addition, the DGCA has taken a decision, to the effect that not more than 6 persons shall be tested in one hour.
The Court observed that two reports of the DGMS (Air) also do not recommend heavy testing through Breath Analyser method, owing to the prevalent circumstances. The Court further issued certain directions stating that the testing for alcohol cannot be completely exempted in as much as the same could be detrimental to passenger safety.
- All the personnel shall be bound to give an undertaking and a declaration that they have not been exposed to alcohol consumption in the last 12 hours before duty, in terms of the DGCA’s applicable regulations. The said undertakings and declarations would be compulsory for all personnel.
- After the undertakings are given, insofar as the administration of the Breath Analyser test is concerned, the doctor and any other paramedic/nursing personnel on duty, would take a Rapid Antigen Test prior to joining the duty, in the testing area, to ensure, as far as possible, that they do not have COVID-19 and they are also not likely to transmit it, being asymptomatic.
- The DGCA shall direct that the Breath Analyser test at all airports would to the extent feasible be conducted in a much bigger and an open area, which has CCTV coverage and not in a small enclosed space, as shown in the photograph today. This would ensure that the exposure of aerosoles is also reduced for the personnel, who are tested.
- The testing shall be random for all personnel i.e. ATCs, pilots, cabin crews and other personnel. However, insofar 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. The same can be revised by the end of 3 months, depending upon the prevalence of COVID-19 pandemic.
- Insofar as the testing area is concerned, as submitted by ld. Counsel for DGCA, not more than 6 personnel shall be tested within the duration of one hour.
- The testing equipment shall be subjected to UVCA radiation, as per the protocols already prescribed by the DGCA, which were considered by the Committee appointed by DGMS (Air).
DGCA was directed to issue a comprehensive guideline/order urgently, which should contains all the requirements and the protocols to be followed for administration of Breath Analyser Test, in one document and should be circulated to all the airports and the airlines, across the country to be adhered to uniformly.
[Air Traffic Controllers Guild (INDIA) v. Union of India, 2021 SCC OnLine Del 2084, decided on 11-05-2021]
Suchita Shukla, Editorial Assistant has put this report together
Counsel for the Petitioners: Ms Khushbhu Sahu & Mr Piyush Sanghi
Counsel for the Respondents: Ms Anjana Gosain & Ms Shalini Nair with Mr Anand Pandey, DDRI (DGCA) & Mr Manish Kumar, Deputy Director General (DGCA). Mr Sonal Kumar Singh and Mr Rajat Dasgupta, Advocate for R-3