Portuguese National Moves Kerala High Court Questioning Engagement Of Foreign Pilots On Contract Labour

Justice PB Suresh Kumar issued notice to all the respondents, including the Bureau of Civil Aviation Security (BCAS) and the Deputy Chief Labour Commissioner in the matter.

The petitioner is a Portuguese national and a qualified pilot who served Indigo Airlines as a Captain from 2018 till 2020. He was on a rotational leave in Portugal when the lockdown was declared in March 2020 in India.

He alleged that he was put on leave without pay, although the employment contract continued. As soon as his employment visa was renewed, it is contended that his service was illegally terminated by Indigo. Consequently, his visa was cancelled.

Advocate Aysha Abraham, representing the petitioner, submitted that Indigo Airlines responded that they were not the direct employers and that the captain was an employee of an aviation services company based out of Bangalore called CAE.

The petitioner argued that his tax residency, accommodation and bank accounts were still in India, and the airlines purportedly refused to sort out the required documentation. These documents are essential to obtain any other employment. Thereby, this was alleged to be an infringement upon his right to earn a livelihood under Article 21.

India does not issue Tourist Visa currently amidst the pandemic, and without his employment contract and visa, he was not permitted to enter India to initiate his documentation. Therefore, the petitioner prayed for the Court's assistance to attain authorization for entry into the country for 90 days.

Indigo justified this abrupt termination pointing out that he was only a contract employee, and the petitioner highlighted that such an arrangement is illegal in itself, as per the regulations for air safety. It was contended that the respondents were also operating in violation of Labour Laws, Aviation Laws, Tax Laws and even Foreign Exchange laws, according to the petitioner.

The Contract Labour (Regulation and Abolition) Act prohibited employing contract labour to carry out the core activity of the principal employer, which in this matter is the Indigo Airlines. Moreover, it also required registration of the Principal Employer and the Contractor. On these grounds, it was alleged that Indigo Airlines acted in an unlawful manner.

The petitioner also made an important submission that it is illegal to let a person not under the direct control of the Operator to operate a flight, especially as a Pilot in Command. Therefore, by asserting that the petitioner was never under their direct control, Indigo Airlines defied the conditions of Air Operator License granted to them.

Several other concerns were raised in the petition as well. They are as follows:

Investigation into DGCA issuing FATA to the Captain

The petition had also questioned DGCA approving the Foreign Air Crew Temporary Authorisation to the petitioner. On his employment visa, CAE was mentioned as the employer. CAE is not a Commercial Operator with an Air Operator Certificate., therefore DGCA could not have granted FATA to him.

On that ground, he sought an investigation into this action of the DGCA. The practice of employing expat pilots as contract labourers had become a topic of discussion after the Mangalore Air crash, and yet the Airlines did not refrain from doing so.

Security Clearance issued by BCAS

BCAS being the Civil Aviation Security Regulator, was not empowered to grant security clearance to an employee of CAE to operate aircrafts of Indigo Airlines. Yet this was done in the petitioner's case. It was urged to be a matter that required inspection.

Pursuant to the 9/11 incident, strict controls have been implemented regarding who has access to the cockpit. Similarly, strict security clearances are to be obtained by the Air Operator. However, BCAS in this matter seems to have given clearance to a captain not under the direct control of the Air Operator.

At the outset, it was submitted that such obvious violations of not one, but numerous air safety regulations by the State and related agencies put the lives of people in danger, thus violating Article 21.

Title: Capt. Pedro Guilherme da Veiga Pereira e Oliveira Artilheiro vs. Union of India & Ors.