Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., while taking suo motu cognizance of a matter, issued directions for airlines with the direction of immediate compliance, expressed that:

Each of us, as members of a conscious and conscientious citizenry, is required to be sensitive and sensitized in equal measure, and to strain every sinew to keep the pandemic at bay. If the citizenry becomes complacent, no Government, howsoever activated and alive to the situation, can help.

The present order was passed in light of an alarming situation witnessed by the Court during the Air India flight from Kolkata to New Delhi on 05-03-2021.

“…though all the passengers had worn masks, many passengers had worn the masks below their chin and were exhibiting a stubborn reluctance to wear their masks properly.”

Bench further stated that it was only on repeated entreaties made (by me) to the offending passengers that they condescended to wear their masks properly. Cabin Crew’s response to the said situation was that they had directed all the passengers to wear masks, but were helpless in case they did not comply.

Further, elaborating more on the issue, Court expressed that:

Passengers in a flight are in a closed air-conditioned environment, and, even if one of the passengers suffers from COVID, the effect on other passengers could be cataclysmic. It is a matter of common knowledge that being within arm’s length distance of a COVID carrier, even if he is asymptomatic and is merely speaking, is more than sufficient to transmit the virus.

While attempting to take out the protocols and guidelines of the DGCA to be followed by the passengers taking domestic travel, unfortunately, the website did not contain the same and the guidelines that could be traced were 21-05-2020.

Bench added that it does not intend to criticise the efforts made by the governmental authorities, including DGCA, in trying to deal with the pandemic.

Sensitization of the citizenry has, however, to precede, not succeed, galvanization of the governmental machinery.

With the present order, Court sought to achieve the objective by lending some teeth to the instructions already in place, in the larger public interest.

Following guidelines were issued for immediate compliance by all airlines as well as by the DGCA:

(i) The DGCA is directed to reflect, forthwith, on its website, prominently, the instructions containing the guidelines and protocols to be followed by passengers and in-flight crew in domestic flights. This shall be reflected on the main website of the DGCA, without requiring the person accessing the site to navigate through various links to reach the instructions. The DGCA will ensure that prominence, to the instructions, or to the web link through which they can, by a single click, be accessed, is accorded, by displaying them in a distinct and different font, blinking or otherwise, or by any other suitable means.

(ii) All airlines are directed to ensure that, along with the boarding pass, written instructions regarding the protocol to be followed by passengers in flight, including the measures that could be taken against them on failure to follow the protocols, are provided to the passengers. The passengers should also be duly sensitised regarding their responsibilities, to abide by said protocol, both before as well as after boarding the flight. The in-flight announcements which, presently, merely require the passengers to wear masks at all times, should be modified to include a cautionary word regarding the penal action that could be taken against them in the event of default.

(iii) In-flight crew shall carry out periodical checks of the aircraft, in order to ensure that all passengers are complying with the protocol to be followed by them in flight, especially regarding wearing of masks. It is made clear that masks should be worn as directed by governmental instructions, covering the nose and mouth, and not worn merely covering the mouth or below the chin.

(iv) In the event of any passenger being unwilling to follow this protocol prior to the flight taking off, the passenger should be offloaded without delay. If a passenger, despite being reminded more than once in flight, refuses to follow this protocol, action should be taken against the passenger in accordance with the guidelines issued by the DGCA or Ministry of Health and Family Welfare, including placing the passenger on a “no-fly” regimen, either permanently or for a stipulated, sufficiently long, period.

(v) It shall be the responsibility of the in-flight crew to ensure strict compliance, by the passengers, with the aforesaid protocol. In order to ensure compliance, the DGCA may consider sending random observers on flights, without prior information, who would check to ensure that the COVID protocols are followed in flight.

(vi) Strict enforcement of all penal provisions, which could visit delinquent passengers who refuse to abide by the COVID protocols to be maintained in flight, should be ensured. There should be no relaxation whatsoever in that regard.

(vii) It is noticed that the guidelines of the DGCA do permit relaxation from the requirement of wearing masks in exceptional cases. Such relaxation, if necessary, should be allowed only in cases which are truly exceptional, such as for medical reasons, after a conscious assessment and evaluation of (a) the necessity of the passenger to fly and (b) the justifiability of the passenger’s refusal to wear the mask, weighed against the risk to public interest involved if the passenger is allowed to travel without a mask. In deserving cases – which should be the exception, not the rule – the airline should take steps to isolate the passenger so that he is kept at a safe distance from other passengers in the flight.

Lastly, Bench directed the authorities concerned to accord adequate publicity to the guidelines, for the purpose of compliance.

DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs should ensure that, in the case of airlines that repeatedly fail to ensure compliance with the said guidelines, penal action to be initiated, in accordance with the law.

Court directs for the present order to be displayed on the official website of DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs.

Periodical review of the situation should be undertaken, to ensure that no laxity creeps into the system.

[Court on its own motion v. DGCA,  2021 SCC OnLine Del 1216, decided on 08-03-2021]


Advocates before the court:

For the respondents: Ms Bani Dikshit, Adv. for Air India along with Dr AB Subbaiah, GM in-flight services & Ms Meenakshi Kashyap, GM-Industrial Relations

Ms Anjana Gosain & Mr Kirtiman Singh, Advs. for DGCA & Ministry of Civil Aviation

COVID 19Hot Off The PressNews

In view of emerging COVID-19 situation in the United Kingdom, the competent authority has temporarily suspended flight to/from the United Kingdom with effect from 23:59 hrs IST of 22-12-2020. Therefore, no flights from the United Kingdom will land in India after 23:59 hrs IST of 22-12-2020. The airline shall enforce this at the port of initial departure.

Consequently, flights from India to the United Kingdom shall also remain suspended.

However, the restriction shall not apply to international all-cargo operations and flights specifically approved by DGCA.

Airlines operating flights to/from India from other countries shall not board any passenger travelling from United kingdom to India and shall ensure that no passenger coming from U.K. is boarded in flight for any destination in India either directly or indirectly.

During the transition period i.e.e up to 23:59 hrs of 22-12-2020, all passengers arriving to India from the United Kingdom shall be compulsorily subjected to RT-PCR Test at the arrival port in India. Passengers found COVID positive shall be quarantined as per guidelines issued by the Ministry of Health and Family Welfare.  All medical costs incurred shall be borne by the passengers.

All airlines operating passenger services from the United Kingdom to India shall ensure strict compliance of the above instructions and shall make an in-flight announcement.

The above-said is a temporary measure and shall be in force till 31-12-2020.

l


Office of the Director-General of Civil Aviation

[Circular dt. 21-12-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashik Bhushan, R. Subhash Reddy, JJ has directed full refund of air tickets booked during lockdown period i.e. from 25th March, 2020 to 24th May, 2020 for travel during lockdown period. The order of the Court came after accepted Directorate General of Civil Aviation’s (DGCA) proposal of

To contain the pandemic situation of COVID¬19, lockdown was imposed by the Government of India, from 25th March 2020 to 14th April 2020 which was later extended upto 03rd May 2020.  A ban was also imposed on operation of all domestic and international flights. There was an issue of refund of air fare during the lockdown period, when domestic and international flights’ operation was suspended. The Ministry of Civil Aviation (MoCA), while acknowledging the unusual situation that has arisen due to the lockdown imposed, to contain further spread of COVID¬19 and its consequential effect on the air passengers and airlines, by examining the grievances received from various quarters, issued an advisory to all stake holders in civil aviation sector in the shape of Office Memorandum dated 16th April 2020.

The present writ petition was filed to declare the action on the part of the respondent-airlines, operating domestic as well as international flights in India, in not refunding the full amount collected for the tickets, due to the cancellation of flights in the wake of restrictions imposed by the Government of India to contain COVID-19 as arbitrary and in violation of Civil Aviation Requirements, issued by the Directorate General of Civil Aviation. A consequential relief was sought to direct the respondents to refund the full amount upon such cancellations.

The Court noticed that in ordinary course modalities and timelines for refund on cancellation of tickets are governed by, the Civil Aviation Requirements, i.e. CAR dated 22nd May 2008; 06th August 2010 as revised on 27th February 2019, and the said Requirements are issued by the competent authority in exercise of powers under the provisions of Aircrafts Act, 1934 and the Rules made thereunder.

It, however, said that

“… we cannot lose sight of the present situation prevailing in the country and across the globe, i.e. the effect of pandemic COVID-19.  It cannot be disputed that the civil aviation sector, which is one of the important sectors, is seriously affected in view of the ban imposed for operating flights. Added to the same, air passenger traffic has come down heavily and which is gradually being restored.  At this moment any strict enforcement action of the CARs would further restrict/reduce their operations and such enforcement action may further jeopardise the possibilities of generation of cash by airlines which can further adversely affect/delay the refund cycle. “

Strict enforcement of Civil Aviation Requirements at this moment may not yield any meaningful result for any stake holder.  Hence, in view of the suggestions and formulations arrived at in the meetings held by Union of India and DGCA, which are acceptable to the majority of stake holders, the Court directed that the same have to be implemented in letter and spirit since such formulations are workable solutions in these peculiar circumstances which are prevailing in the country.

DIRECTIONS ISSUED

  1. If a passenger has booked a ticket during the lockdown period (from 25th March, 2020 to 24th May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.
  2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers.
  3. Passengers who booked tickets at any period of time but for travel after 24th May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR).
  4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is ex¬India, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made.
  5. If the tickets are booked for international travel on a foreign carrier and the booking is ex¬India during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks.
  6.  In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount   of   fare   collected,   in   the   name   of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021.  It is open to the passenger either to utilize such credit etc. shell upto 31st  March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he/she has booked the ticket and the airlines shall honour such a transfer.

The credit shell issued in the name of the passenger shall be transferable which can be utilize upto 31st  March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance.

  1. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline.
  2. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation upto 30th June, 2020 in which event the credit shell shall be enhanced by 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75% of the face value per month upto 31st March, 2021.

[Pravasi Legal Cell v. Union of India, 2020 SCC OnLine SC 799, decided on 01.10.2020]

COVID 19Hot Off The PressNews

Travel and Visa restrictions related to COVID-19

Government has further extended the validity of the circular issued on the subject cited regarding Scheduled International commercial passenger services to/from India till 23:59 hrs IST of 30-09-2020.

The said restriction shall not apply to international all-cargo operations and flights specifically approved by DGCA.

However, International Scheduled flights may be allowed on selected routes by the competent authority on case to case basis.


Office of the Director-General Civil Aviation

[Circular dt. 31-08-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Surendra P. Tavade, JJ. dismissed the application filed by an Air India Pilot seeking direction to Directorate General of Civil Aviation (“DGCA”) and Airline carriers to leave middle seat vacant while flying passengers as a measure of social distancing for prevention against COVID-19 virus. 

The application was dismisses by the High Court relying on the recommendations of the High Level Committee of Experts constituted by the DGCA to meet and recommend certain safety measures to be followed on flights.

Earlier, on 22nd May, the High Court had directed the airlines to follow the DGCA Circular of 23rd March wherein it had recommended that the middle seats in the aircraft should be left vacant while flying passengers in unscheduled flights under the Vande Bharat programme aimed at bringing back Indians stranded abroad. After the High Court’s order, the respondents had approached the Supreme Court which, on 25th May, had directed that the airlines could operate without leaving the middle seat vacant upto 6th June and thereafter in compliance with the order to be passed by the High Court. The Supreme Court had also asked the High Court to consider the aspects of safety of passengers in scheduled as well as unscheduled flights. It had also directed that the DGCA is free to alter any norms in the interest of public health and safety of passengers.

The DGCA, thereafter, constituted a High Level Committee of Experts to meet and recommend safety measures to be followed on flights. The Expert Committee comprised: (i) Rajesh Bhushan, OSD, Ministry of Health and Family Welfare, Government of India; (ii) Dr Randeep Gulera, Director, AIIMS, New Delhi; (iii) Prof Balram Bhargava, DG, ICMR; and (iv) Dr Naresh Trehan, CMD, Medanta-Medicity.

The Expert Committee deliberated on the issue and gave its recommendations, pursuant to which, the DGCA passed an order on 31st May 2020 issuing the recommendations of the Expert Committee as directions of the DGCA.

The Expert Committee had noted that a “face mask worn by two persons in proximity with each other minimises the risk of transmission due to droplets from mouth/nose”. It noted that an “efficient air conditioning system” minimised the risk of transmission through the air and recommended that aircrafts which use “HEPA filters which are effective in screening out various microbes” could be operated in a manner that “replacement of air is very frequent”. The Committee further noted that “if the person sitting in between two persons is wearing a protective gear then the same effect as keeping the seat vacant can be achieved”. After detailed deliberations, the Expert Committee also recommended that if the passenger load and seat capacity permit, then “the airlines shall allot the seats is such manner that the adjacent seat is kept vacant”. If the number of passengers was more, “members of the same family (living in the same house) can be allowed to sit together”, since they would be exposed to each other at home in any case.

Before the High Court, the DGCA also submitted that the Circular dated 23rd March 2020 was issued on an urgent basis in the wake of outbreak of COVID-19 without carrying out any expert consultation. It was informed that thereafter the Air Transport Facilitation Committee meeting was held on 4th May where social distancing on flights was discussed and rejected.

Having considered the Expert Committee recommendations, the High Court moved on to considering the submissions made by the petitioner. However, the petitioner failed to assist the Court in determining how the safety/health of passengers qua COVID-19 virus is affected if airlines fail to keep the middle seat vacant. The Court stated that the petitioner failed to appreciate that even if the middle seat is kept vacant, the person sitting at the window seat whilst getting out for going to lavatory and thereafter returning back to his seat, is likely to touch (through his clothes) the person sitting on the aisle seat. Therefore, if petitioner’s argument was to be accepted, in every row of the aircraft only one passenger should be accommodated. The Court observed:

“We cannot allow an individual to instill such fear in the minds of the public, without any scientific basis,”

The High Court relied on the Supreme Court decisions in Basavaiah v. H.H. Ramesh, (2010) 8 SCC 372; Union of India v. CIPLA, (2017) 5 SCC 262 and Hanuman Laxman Aroskar v. Union of India, 2020 SCC OnLine SC 41 for the proposition that the Expert Committee recommendations can only be set aside if they are shown to be arbitrary, discriminatory, unreasonable or ultra vires. In the instant case, the Court found nothing in the minutes of the Air Transportation Facilitation Committee or in the recommendations of the Expert Committee, which could be termed as arbitrary, discriminatory, unreasonable or ultra vires.

Reliance was also placed upon Academy of Nutrition Improvement v. Union of India, (2011) 8 SCC 274, wherein the Supreme Court had held that the scope of review in matters concerning public health is very limited.

In view of the aforementioned, the Court was of the prima facie view that the safety and health of the passengers on board the aircraft qua COVID-19 virus is adequately taken care of even if the middle seat of the aircraft is not kept vacant on account of passenger load and seat capacity.

It was directed that all flight operators in the country shall strictly follow and implement the DGCA Order dated 31st May 2020 as well as applicable SOPs.

The interim application was disposed of in above terms. [Deven Yogesh Kanani v. DGCA, 2020 SCC OnLine Bom 714 , dated 15-6-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Surendra P. Tavade, JJ. while addressing a petition sought clarification from the expert committee as to:

Whether by a mere touch of a person carrying COVID19 virus, the virus can be transmitted to the person so touched?

DGCA had laid emphasis on minutes of meeting of the Expert Committee held on 26th May, 2020 to review and further strengthen the public health related protocols of air travel.

Bench noted the following statements from the said minutes:

Paragraph 12 :

“The physical distance between two persons helps in minimizing the transmission through an inadvertent touch”

Paragraph 14 :

“It was also suggested that if the person sitting adjacent to another person is provided with a protective suit (like a gown covering the upper part of the body and gloves), this can also be very good means of preventing the spread of virus either by droplets or by touch.”

Paragraph 14 :

“The Committee felt that providing protective gowns to intervening passengers (passengers who are seated between two persons) would also minimise the risk of transmission through an inadvertent touch while in the aircraft or while boarding or alighting.”

Thus, Court sought for clarification from the expert committee whether by merely touching a person with COVID19 the same could be transmitted to the person who touched.

Matter to be listed on 5th June, 2020.[Deven Yogesh Kanani v. DGCA, AD-HOC-No. WP-LD-VC-3 of 2020, decided on 4-06-2020]

NGT
Hot Off The PressNews

National Green Tribunal (NGT): The Bench headed by NGT chairperson Adarsh Kumar Goel, J., stated that Director General of Civil Aviation (DGCA) has been repeatedly defiant on issuing circular to airlines operating at the IGI airport in order to restrict them from emptying the toilet tanks mid-air.

The Bench further stated that “Since there is a repeated defiance by the DGCA with absolutely no acceptable explanation, we have no option but to direct the DGCA to comply with the directions already issued on or before August 31, 2018.” If the same act continues, NGT would have to consider prosecution against the Director-General.

[Source: The Times of India]