DGCA Cannot Suspend Pilot Licence In Public Interest Without Hearing: Bombay High Court Restores Air India Pilot's ATPL After 15 Years

The Bench observed that the DGCA suspended the pilot’s licence without issuing a show-cause notice, granting him an opportunity of hearing, or recording adequate reasons as mandated under Rule 39A of the Aircraft Rules, 1937.

A Division Bench of Justice Manish Pitale and Justice Shreeram V. Shirsat while noting the argument on Rule 19 of the Aircraft Rule, observed, “…The opening paragraph of the said section is very clear and unambiguous wherein it applies to the person who is convicted of a contravention or failure to comply with the rules in respect of any aircraft and which empowers the central government to cancel or suspend any certificate of registration granted under these rules relating to aircraft. In the present case, the petitioner is not a convicted person and therefore the contention of the respondent that it had suspended the license in the public interest does not stand to reason. Secondly the said rule pertains to certificate of airworthiness of an aircraft which is not the issue in the present case”.

“…The licensing authority has neither issued show-cause notice to the petitioner nor has given him any personal hearing. The Licensing Authority has conspicuously failed to refer to any forged documents or give any reason as to why it has arrived at the said subjective satisfaction of suspending the license of the petitioner. Even the period which is required to be specified for debarring or disqualifying a person from holding or obtaining a license has also not been specified in the said impugned order…”.

Advocate Mohan Bir Singh appeared for the petitioner, Advocate Gaurav Mhatre appeared for the respondent.

The petitioner obtained a Commercial Pilot Licence (CPL) after undergoing training in the United States and was granted a CPL by the DGCA in 1988. He subsequently joined Air India as a trainee pilot, qualified to operate Airbus A310 aircraft, and was confirmed as a co-pilot in 1992.

According to the record, he continued flying for over two decades, underwent periodic proficiency checks conducted by DGCA-approved examiners, and accumulated nearly 7,000 flying hours. Based on this experience, he became eligible for an Airline Transport Pilot Licence (ATPL), the highest category of pilot licence, which was issued to him by the DGCA in September 2010.

The petitioner, a commercial pilot who had served with Air India and accumulated nearly 7,000 flying hours, was issued an ATPL in September 2010.

However, following a criminal investigation into alleged irregularities in aviation licensing examinations, the DGCA suspended his licence in March 2011, alleging that he had relied upon a forged marksheet while applying for the licence.

Challenging the suspension, the pilot contended that no notice was issued to him before the drastic action was taken and that the impugned order did not even identify the allegedly forged document or specify the period of suspension.

Accepting the contention, the Court held that Rule 39A expressly requires the licensing authority to provide an opportunity of hearing before disqualifying a person from holding or obtaining a licence. The Bench further noted that the DGCA had failed to comply with Clause 12.7 of its Enforcement Policy and Procedures Manual, which contemplates issuance of a show-cause notice and disclosure of the alleged contravention before suspension of an aviation document.

The Court also found it significant that although a criminal case had been registered in 2011, charges had not been framed even after fifteen years.

“It will also be pertinent to mention here that Respondent has not produced the so-called forged mark-sheet, which was allegedly submitted by the Petitioner. Further it is also an admitted position that though the criminal complaint was filed against the Petitioner and others in the year 2011, so far although charge-sheet has been filed, no charge has been framed even after 15 years. Apart from that, the Petitioner has categorically come out with the case that whilst the entire application form is typed, the entry at column 9(e) showing that he passed the ATPL composite in the session in April 2010 with roll number 19250025 and result declared on 03/06/2010, is not in his handwriting and that he does not know whose handwriting it is. In the light of the said contention of the Petitioner, it was incumbent on the Respondents to have produced the said original documents and/or obtained the handwriting expert’s report. The burden was on the Respondent to establish by producing the material before this Court that the said two pages were in the Petitioner’s handwriting, which the Respondent has failed to do”, the Bench observed.

Holding that the suspension order suffered from a clear violation of statutory procedure and natural justice, the Court quashed the order and restored the petitioner’s ATPL.

The Bench also noted that the Court vide order dated February 25 2019, had set aside the order of termination, and the same was subsequently upheld by the Supreme Court.

“…taking into consideration the clear infarction of Rule 39A and Rule 19 of the Aircraft Rules, non-adherence to Clause 12.7 of Enforcement Policy and Procedures Manual, we find that the impugned order is clearly illegal and unsustainable as the same has been passed in the teeth of the above provisions of law. The impugned order dated 12/3/2011, therefore, deserves to be quashed and set aside”, the Bench concluded.

At the same time, it granted liberty to the DGCA to initiate fresh proceedings in accordance with Rule 39A after providing the pilot an opportunity of hearing and passing a reasoned order.

Cause Title: Jeetendra Krishna Varma v. Director General of Civil Aviation Writ Petition No. 3360 OF 2011

Appearances:

Petitioner: Mohan Bir Singh, Rahul Jalan,  MBS & Co, Advocates.

Respondent: Vinit Jain, Ashutosh Mishra, Gaurav Mhatre, Advocates.

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