Friday, July 02, 2021

Air Safety and Indigo Airlines: Kerala High Court issues notice after Pilot alleges violation; cites post 9/11 restrictions on cockpit access

The Kerala High Court has issued notice to the Central government, Indigo Airlines, Directorate General of Civil Aviation (DGCA), Bureau of Civil Aviation Security (BCAS) and the Deputy Chief Labour Commissioner on a petition filed by a former pilot with Indigo Airlines alleging violation of Air Safety Regulations by the Airlines (Capt. Pedro Guilherme da Veiga Pereira e Oliveira Artilheiro Vs. Union of India and ors.).

The petitioner, a Portuguese national whose employment was terminated by the airlines during the COVID-19 lockdown, alleged that as per Indigo's claim, he was only a contract employee though such an arrangement is not permitted as per the regulations in place for air safety.

The petitioner claimed that not only was he denied his right to earn a livelihood guaranteed under Article 21 of the Constitution of India, the respondents were also operating in violation of Labour Laws, Aviation Laws, Tax Laws and possibly violation of Foreign Exchange laws.

Justice PB Suresh Kumar sought the response of the respondents including the Directorate General of Civil Aviation (DGCA), Bureau of Civil Aviation Security (BCAS) and the Deputy Chief Labour Commissioner.

The petitioner, through advocate Aysha Abraham, submitted he was working as a Captain with Indigo Airlines but was put on leave without pay during the lockdown declared in 2020. Thereafter, Indigo Airlines terminated his contract just after the captain obtained his employment visa. Therefore, his visa was cancelled.

The captain further submitted that since his tax residency is in India, he cannot obtain any other employment unless he clears his documentation and even his bank accounts are in India which can be closed only by his personal presence .

Without his employment contract and visa, he has been unable to obtain permission to enter India to take care of his affairs and therefore sought the Court's assistance in gaining permission for entry for 90 days.

Pertinently, he submitted that Indigo Airlines has claimed that the captain is an employee of CAE Simulation Technologies, an aviation services company based out of Bangalore.

According to the Contract Labour (Regulation and Abolition) Act, 1970, contract labour cannot be employed to carry out the core activity of the principal employer (Indigo Airlines), it was contended. Further, contract labour cannot be employed without the registration of both the Principal Employer and the Contractor (CAE) at the place of work. Therefore, he alleged that Indigo Airlines acted in contravention of the provisions of the Act.

He also argued that since Indigo Airlines has claimed that he was never under their direct control or supervision, it is operating by flouting the conditions of the Air Operator License granted to them. It is illegal and in fact, criminal to let a person, who is not under the direct control and the supervision of the Operator, to operate a flight, that too as a Pilot in Command (PIC), the plea said.

He submitted that the Directorate General of Civil Aviation (DGCA), which is the Air Safety Regulator could not have approved the FATA (Foreign Air Crew Temporary Authorisation) which is granted as Operator specific under the Civil Aviation Requirements for the purpose. The DGCA could not have granted FATA as CAE is not a Commercial Operator having an Air Operator Certificate, he argued.

Therefore, the petition also sought investigation as to how the DGCA issued a FATA to the captain when his employment visa was stamped with CAE as the employer. The practice of employing expat pilots as contract labourers had become an issue in the aftermath of the Mangalore Air crash and Air India discontinued the practice.

Similarly, he contended that the Bureau of Civil Aviation Security (BCAS) is the Civil Aviation Security Regulator and BCAS could not have given security clearance to an employee of CAE to operate aircrafts of Indigo Airlines.

He also drew attention to the fact that after 9/11 terrorist attack, there has been strict controls on who accesses the cockpit and there are strict security clearances to be obtained by the Air Operator and in this case, the BCAS gave clearance to a captain not under the direct control or supervision of the Air Operator.

02/07/21 Giti Pratap/Bar and Bench

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