CAPT. Bharat Prasad vs Union of India and Others

Valmiki J Mehta, J.—This writ petition impugns the order dated 21.9.2012 passed by the Appellate Authority whereby the termination of the petitioner as a Pilot with the respondent no. 3 in terms of the letter dated 29.9.2010 was upheld. The petitioner claims that petitioner was fully and duly qualified and therefore both the termination order dated 29.9.2010 and 21.9.2012 are required to be set aside. The facts of the case are that the petitioner was given a fixed term employment of five years from 16.12.2009 to 15.12.2014 in terms of the Agreement dated 16.12.2009. Clause 12.2 of the Agreement provides for termination of the service of the employee/Pilot if the performance is found to be unsatisfactory.

Before I come to the contentions raised on behalf of the petitioner, let me reproduce the extremely telling and crucial observations of the Examining Committee of pilots who examined the petitioner for his competence for flying without a safety pilot on board. These findings are as under:-

... As per the applicable rules after the execution of the FTEA, a pilot is required to undergo 30 sectors/50 hours of Line of Experience ("LOE") as per DGCA syllabus and only upon successful completion of the same, the pilot is released to fly as a co-pilot. The first part of such training is conducted with a safety pilot on board who is removed only after successful progress check on such trainee pilot. However, from the records, it is observed that after execution of the FTEA, the Applicant had completed more than 100 hours but still he had not been released to fly without a safety pilot.

From the records, it is observed that in the above circumstances, the Applicant was recommended additional training and thereafter AASL directed the DGCA approved examiners to conduct a final Release Check on him. On August, 19,2010 three examiners/instructors/observers namely Capt. Minrou Kawakubo, Capt. Angel Franceschini and Capt. Sanjay Gupta conducted the final progress check on the Applicant and submitted their report to the Executive Director (Airlines Operations) on August 19,2010. The relevant extract of the said report is as under:

The following observations have been made during the course of his check Observations by Capt. Minrou Kawakubu

Mr. Bharat Prasad is not fit to be released and fly as First Officer.

His actions are dangerous for flight safety.

His Aircraft handling is dissatisfactory.

He has no idea of cockpit preparation.

His knowledge on procedures and Technical is nil.

His call outs and operating procedures are dissatisfactory.

His performance overall is below standard.

Observations by Capt. Angel Franceschini and Capt. Sanjay Gupta PNF(As Pilot Not Flying)

Mr. Bharat Prasad''s cockpit preparation is below standard.

His technical Knowledge on Procedures is below standard norms.

His communication and RT skills are totally zilch and nil.

His call outs as PNF and operating procedures are below standard.

PF (As Pilot Flying)

His action in the cockpit are dangerous and not conducive to flight safety.

He has no idea of Aircraft handling and is hazardous and not up to the mark.

His performance is completely below standard.

He is not fit to be released to fly as First Officer.

Further, from the records, it is observed that after the examiners gave their final report, AASL terminated the services of the Applicant in accordance with Clause 12.2 of the FTEA which provides that AASL may at any time, upon written notice, terminate the employment of the Applicant if it finds his performance to be ''unsatisfactory''. Under the said Clause 12.2 unsatisfactory performance is defined as under:....

The aforesaid observations show that all the three examiner pilots have observed one way or the other that the petitioner is not fit to be released for flying as a co-pilot without a safety pilot. Petitioner''s actions were found dangerous for flight safety. Petitioner''s handling of aircraft was dissatisfactory and he had no idea of cockpit preparation. The knowledge of the petitioner on procedures and technical aspects as also operating procedures and overall performance was found to be below substandard and dissatisfactory. In my opinion, surely this Court is ill-equipped to substitute the opinion of the examiner pilots who checked the proficiency of the petitioner as a pilot to fly the aircraft as a co-pilot without a safety pilot. Courts are not equipped to perform and decide technical functions which are best left to the Competent Authorities. It is relevant that after all if the petitioner, who is found unfit by the team of examiners for being given independent operation of the aircraft, lives of passengers would also be at stake.

On behalf of the petitioner, the following arguments are urged before me:-

(i) Petitioner, as per the medical records, is medically fit and has answered the Instrument Rating Test. He has also cleared the pilot proficiency test which is also known as the Route Check Test. It is argued that once petitioner satisfies all the three requirements, the petitioner''s services were wrongly terminated.

(ii) One of the examiner of pilots namely Capt. Sanjay Gupta had a grievance against the petitioner because the petitioner had objected to Capt. Sanjay Gupta not sending him for training when other pilots were being sent.

(iii) Petitioner has not been given the requisite notice of one month under Clause 12.1 of the Agreement dated 16.12.2009 and therefore the termination is illegal.

So far as the first argument is concerned, the three requirements which have been complied with by the petitioner are for his being qualified as a pilot.

The issue is not whether the petitioner is qualified as a pilot but the issue is whether the petitioner is qualified to independently operate the aircraft as a co-pilot without a safety pilot. Therefore, even if the petitioner satisfies the three requirements of being a pilot, whether the petitioner is capable of independently handling an aircraft can only be judged by the examiner team of the pilots and which team of pilots in very crucial language has found the petitioner to be totally unfit. It may be stated that impugned appellate order in fact shows that ordinarily, a pilot is required to undergo 30 sectors/50 hours of Line of Experience as per DGCA syllabus and only on successful completion of the same, the pilot is released to fly as a co-pilot, however, qua the petitioner it is observed that he has completed more than 100 hours but still he is not released to fly without a safety pilot. As already observed above Courts cannot substitute their views for that of the technical team, especially, in cases of competence with regard to flying and therefore, I do not find that merely because petitioner is otherwise qualified as a Pilot because of being medically fit and because of having the Instrument Rating Test clearance and Route Check Test clearance, he can automatically be released to fly without a safety pilot i.e. as a co-pilot without a safety pilot.

So far as the second argument which is urged on behalf of the petitioner that Capt. Sanjay Gupta, one of the three examiners who conducted the test of the petitioner is biased against the petitioner, in my opinion, that is not a ground to set aside the observations given at least so far as the two other pilots in the examiner team. In fact, the observations of one of the two other pilots namely Captain Minrou Kawakubu are much more against the petitioner than the observations of Captain Sanjay Gupta. I do not find any substantial averments in the writ petition as to how allegedly the said Sanjay Gupta could also manipulate or make the other two examinee pilots take a view against the petitioner. Also, just because Sh. Sanjay Gupta one of the examiner pilots is alleged to have not sent the petitioner for training, cannot mean in the facts of the present case that he was bound to give only adverse remarks against the petitioner. I cannot accept this reasoning/grounds as urged on behalf of the petitioner.

So far as the last argument of the petitioner of not having been given one month''s notice, I may state that even assuming one month''s notice was not given, in law, petitioner will only be entitled to one month''s notice pay and not reinstatement of service in view of S.S. Shetty Vs. Bharat Nidhi, Ltd., which holds that in cases such as the present there cannot be any reinstatement but at best be given notice pay of one month.

In my opinion, in fact, Clause 12.1 of the Agreement relied upon by the petitioner has no application in the facts of the present case, because what applies is Clause 12.2 of the Agreement which entitles termination of service of a pilot on performance of the pilot not being satisfactory. After all, pilots are at one point of time expected to handle the aircrafts without a safety pilot and it is not expected that in spite of having undergone double the hours of requirements i.e. more than 100 hours instead of 50, yet, petitioner can insist that he will continue to be given corrective flying although he is not found to fly as a co-pilot without a safety pilot. In view of the above, I do not find any reason to interfere with the impugned orders dated 29.9.2010 and 21.9.2012 terminating the services of the petitioner, and therefore, the writ petition is dismissed, leaving the parties to bear their own costs.