Covid-19: Delhi High Court Refuses To Dispense With Rapid Antigen Test For Medicos Doing Breath Analyser Tests On Aviation Personnel

The Delhi High Court has observed that the conduct of Breath Analyser Tests (BAT) for staff of Air Traffic Controllers, commercial pilots, cabin crew and other staff members shall continue depending upon the guidelines issued by the Director General of Civil Aviation in light of the status of COVID-19 pandemic.

Justice Pratibha M Singh was considering a clutch of petitions relating to the Breath Analyzer Test which the ATCs and commercial pilots need to undergo before joining their duty at the airports.

The DGCA had moved an application seeking certain modifications in the order dated 11th May, 2021 passed by the Court while issuing a slew of directions for the administration of Breath Analyzer Test at all airports for all ATCs, pilots, cabin crews and other personnel.

It was argued on behalf of DGCA that fresh guidelines were issued by it pursuant to the directions issued and in view of the changed circumstances in COVID-19 pandemic and also an increase in volume of air traffic as a result of resumption of 100% normal airline operations.

The application thus sought directions to dispense with the requirement that the doctor and any other paramedic or nursing personnel on duty, would take a Rapid Antigen Test for COVID-19 prior to joining the duty in the testing area, for administering BAT, as also to permit the conduct of BAT tests as per pre-COVID protocols.

It also sought directions to dispense with the requirement of conducting not more than six tests in one hour and to permit to conduct BAT as per pre- COVID protocols.

Accordingly, the Court dispensed the direction (for the time being) that only six personnel shall be tested in one hour is concerned, keeping in view the increase in air traffic and reduction in incidence of COVID-19, as also, to ensure optimum utilisation of resources and reduce delays.

However, the Court refused to dispense the direction regarding the conduct of COVID-19 Rapid Antigen Test in respect of doctors, paramedics and nursing personnel, observing that such a test can be conducted within 15 to 20 minutes and is also one of the quickest screening tools for COVID-19.

"Doctors and paramedics/nursing personnel ought to be tested on Rapid Antigen Tests, prior to conducting tests on other personnel, as the risk would be high if such a test is not conducted, and either the doctor or nurse turns out to be COVID-19 positive. This is more so because there are chances of such persons being asymptomatic and being unaware if they have contracted the virus. Thus, at this stage, the said test would continue to be mandatory, in terms of paragraph 13(2) of order dated 11th May, 2021," the Court said.

While making it clear that the guidelines issued by the DGCA from time to time shall continue to operate, the Court ordered:

"The conduct of BAT for staff of ATCs, commercial pilots, cabin crew and other staff members, shall also continue depending upon the guidelines issued by the DGCA in light of the status of the COVID-19 pandemic."

The Court thus granted liberty to the DGCA to move an application seeking modification, at a later stage.

While issuing a set of directions last year, the Court had observed that the testing for alcohol cannot be completely exempted in as much as the same could be detrimental to passenger safety.

Furthermore, emphasizing that all the airlines, including ATCs, pilots and cabin crew, would be "bound to give undertakings and declarations" in respect of not having consumed alcohol in terms of the applicable regulations, the Court had stated that strict action would follow in failing to do so, including "off- rostering and suspension, in accordance with the applicable rules."

Case Title: AIR TRAFFIC CONTROLLERS GUILD (INDIA) v. DIRECTORATE GENERAL CIVIL AVIATION & ANR.

Citation: 2022 LiveLaw (Del) 853

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