'Reinstate With All Consequential Benefits': Allahabad High Court Quashes Disciplinary Proceeding Against Indian Airforce Wing Commander

The Allahabad High Court has quashed the disciplinary proceedings against pilot-petitioners regarding an aircraft accident in 2008, calling it 'illegal, arbitrary and an abuse of the process of law' due to unexplainable delay and the arising apprehension of malafide therein. Justice Chandra Dhari Singh to reinstate the petitioner in service with all consequential service benefits. The Court noted that in case of a deputation, the borrowing department does not have the jurisdiction to terminate the services of an employee. Moreover, the report based on which the charge sheet was filed does not indicate an error on the part of the pilot or negligence following the due procedure.

The petitioner in the instant case is Wing Commander Rajesh Singh Nagar, a member of the Air Force who was sent to the State of Uttar Pradesh on deputation for three years, later extended by another year. The facts of the case arise from a 2008 aircraft accident of a plane flown by the petitioner. After the Directorate General of Civil Aviation [DGCA] investigation, he was permitted to resume the flight duties after attending corrective/additional training. However, in 2014, a charge sheet was issued against the petitioner for a six-year-old accident and another accident where he was involved in 2012. Following which he was terminated from service in 2016.

Background

Senior Counsel Prashant Chandra, appearing for the petitioner, argued that the abrupt issue of charge-sheet after six years by the State Government when he was on deputation from the Indian Airforce is without jurisdiction. It was argued that a deputationist continues to be governed by rules of the parent department, deemed to be under the disciplinary control of the parent department unless absorbed permanently.

Secondly, the petitioners argue that a six-year gap in filing the charge sheet is impermissible in law liable to be quashed. Finally, he emphasises that soon after the accidents, no action was recommended against him, but rather he was reinstated to service.

Thirdly, the petitioners claim that it was due to 'wake turbulence, an unusual phenomenon that the aircraft impacted the runway with the unusual rate of descent and attitude. However, it was for the exceptional skill and expertise of the petitioner that the aircraft was saved from losing direction and becoming a ball of fire.

It is further contended that the order terminating the petitioner's services is based on the investigation report of the Aircraft Accident Investigation BureauAircraft Accident Investigation Bureau [AAIB], which has no such finding against the petitioner. The petitioner calls the investigation 'misconceived' as, under Rule 3 of the Rules 2021, the sole objective of such an investigation of accidents and incidents shall be the prevention of accidents or incidents and not apportion blame and liability. Thus, there is a specific mandate under sub-clause (2) that differentiates such investigation from any judicial or administrative proceeding meant to apportion blame or liability, thus nullifying the validity of the order of termination.

Further, the petitioner alleges violations of the principle of natural justice as access to the necessary records were not supplied to the petitioner for submitting a reply to the show-cause notice. Moreover, the inquiry officer has picked selective observations from the AAIB report, holding the petitioner liable and completely letting go of the co-pilot in both the accident cases.

Therefore the issues arising out of the said matter are threefold: (a) validity of the termination of services of a deputation by borrowing department; (b) validity of the inquiry due to delays and latches in the inquiry proceedings; and (c) validity of the disciplinary proceeding based on the AAIB report.

Advocate Pratyush Tripathi, representing the State-respondent, argued that as per the report of DGCA, the pilot's mistake was identified as the main cause of action and had categorically recommended appropriate action against the pilot for the lapses. It is also argued that when he was reinstated, the report was not finalised, and only after a three-member committee of the State Government recommended the implementation of the DGCA report, a charge-sheet was filed. It is contended that it should not be permitted for him to escape his responsibility for a delay in the inquiry where due to his negligence, the State Aircraft was destroyed.

They further argue that the petitioner has not challenged the report wherein the lapses have been identified. It relied on State Bank of India v. Narendra Kumar Pandey (2015), where it is held that no oral enquiry is required to prove those charges if charges arise out of a document. While the respondents argue that the petitioner has not been able to prove any irregularity in the enquiry, if the same is found, then the relief should not be reinstatement but remanding back the enquiry. in

Findings

The Court noted that under Clause (3) and (8) of the 2012 Rules, the objective of the investigation is the prevention of future accidents and not to apportion blame or liability. Furthermore, on the first issue, the Court noted that the petitioner was an employee of the Indian Air Force working on deputation with the State Government at the time of the accident. In this regard, it noted,

"The services of an employee on deputation cannot be terminated by the borrowing department, in case of any negligence or misconduct, he can only be repatriated to his parent department along with the report about his conduct."

Furthermore, the Court refused to condone the delay of six years as the explanation provided was found not satisfactory. It noted that delayed initiation of proceedings is bound to give room for allegations of bias, mala-fides and misuse of power. Moreover, it is likely to cause prejudice to the delinquent officer in defending himself. Thereby the Court held that the delay and laches on the employer's part would vitiate the disciplinary proceedings; held it to be 'illegal, arbitrary and an abuse of power'.

The inquiry by the AAIB, the Court held that the authorities were influenced by findings of the preliminary enquiry at the very first instance. As the preliminary enquiry is merely a fact-finding report, the object is to form an opinion as to whether a formal enquiry is required or not. The findings of the regular disciplinary proceeding is ordinarily not to be relied upon. It noted,

"In case such a report is to be relied upon then the delinquent employees has to be confronted with such materials, and only after hearing their version in the matter that such a report could be relied upon. Any other course followed would clearly be a violation of principles of natural justice."

The State Government was held to be premeditated and malafide, which is substantiated by a frequent change of the inquiry officers, who could align with the authorities' wishes. It was also held that the petitioner had not been given the proper opportunity to submit the reply of the show cause notice as he has not been supplied with the relevant documents. It was also noted that the report does not indicate that the pilot erred in making last-minute corrections or that there was any negligence in following the due procedure.

The Court also discussed the legal aspects of the 'wake turbulence' in Philip Silverman, Vortex Cases: At a Turbulent Crossroads, 39 J. Air L. & Com. (1973). It defines 'wake turbulence' as,

"A movement of air behind an aircraft. It is invisible to pilot and controller alike. It is not predictable since it is subject to ambient wind; its effect and strength will differ with the size, flap configuration, weight and speed of the aircraft producing it. It develops when air rolls up off the wingtips of an aircraft in flight due to the pressure differentials above and below the wing surface, forming two counter-rotating cylindrical vortices which are commonly called wake turbulence. It is much more severe than "prop wash" 'and can induce an aircraft to roll beyond its control capability. Some measurements have shown peak velocities of the tangential air movements surrounding a vortex core to be as high as 224 feet per second-or 133 knots."

Based on the observations, the Court did not find negligence on the part of the petitioner. It is also not a case of the respondent/ state that the petitioner has ignored any warning about the wake turbulence given by the Air Traffic Controller. The controller did not give any warning to the petitioner about wake turbulence.

Title: Wing Commander Rajesh Kumar Nagar v. state of Uttar Pradesh

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