Breath Analyzer Test Cannot Be Completely Exempted As The Same Could Be Detrimental To Passenger’s Safety: Delhi High Court
The Single Judge Bench of Justice Prathiba M Singh of Delhi High Court while hearing a petition filed by Indian Commercial Pilots Association seeking exemption for commercial pilots to undergo breath- analyzer tests which was prejudicial to the interests of the ATCs, especially during the COVID-19 outbreak while observing that testing for alcohol cannot be completely exempted in as much as the same could be detrimental to passenger safety has issued a slew of directions to maintain a balance between the interest of the personnel as also passengers.
The Court while directing the DGCA to issue comprehensive guidelines/order urgently containing all the requirements and protocols to be followed for administration of Breath Analyser Test, in one document have issued the following directions:
- 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).
Further directions have also been issued to communicate the said order to all the airports and the airlines, across the country to be adhered to uniformly.
The Court vide order dated April 27, 2021 had directed the DGCA to bring into operation the draft order dated April 27, 2021 & for continuing medical committee of duly qualified people to submit a report on the issues in the plea. It has also directed the committee to consider the issue of incapability of UV sterilization of BAT equipment to neutralize the COVID-19 aerosols.
After perusing the report of DGMS (Air) & the Committee, the Court on May 5, 2021 had further directed the DGMS(Air) to consider the following aspects:
- Whether the BAT can be conducted in an open area with mobile electrical connectivity so that the spread of Covid-19 through the suspended particles/aerosols in a confined room can be avoided for the safety of the cabin crew, ATCs and pilots?
- Whether the DGMS (Air) approves the percentages mentioned in the order dated 27th April, 2021 or should the same be random for all categories of employees – i.e., ATCs, pilots and cabin crew?
- Whether the cabin crew, ATCs and other personnel who have to undergo the BAT could be first subjected to a rapid antigen test and thereafter be made to undergo the BAT?
- Whether the percentages need to be changed and if so, to what extent.
The Counsel on behalf of DGCA submitted that an attempt would be made in all the airports to conduct Breath Analyzer test in an open area as far as possible & in places where this was not possible, the authorities would ensure that the room where testing would be done would be sanitised after undertaking every test. She also submitted that the DGCA had decided that not more than 6 persons would be tested in an hour as far as percentages were concerned for ATCOs the testing would be random, for pilots and cabin crew with a maximum of 8 to 10% of the personnel being tested.
“Insofar as the Rapid Antigen Testing is concerned, she submits that the DGMS (Air) is of the opinion that it may create a longer waiting time and hence could create overcrowding. Therefore, the same may not be required. In accordance with the report of the DGMS (Air), she further submits that the DGCA itself is conscious of the interest of its personnel, as also the passengers. Subject to the undertaking given by all the personnel, the testing shall be only as much as is required and in terms of the DGCA protocols as submitted above.”, DGCA’s counsel further contended.
The Court also strongly emphasised on the need of the staff of airlines, including ATCs, pilots and cabin crew, to give undertakings and declarations. in respect of not having consumed alcohol, in terms of the applicable regulations failure of which would result in imposition of strict action in the form of including off rostering & suspension as per the applicable rules.
Case Title: Indian Commercial Pilots Association V. Directorate General Of Civil Aviation | W.P.(C) 4990/2021