If the media reports are true, the flying license of the Captain involved in the Mumbai runway overrun has been suspended for 1 year. DGCA final investigations are usually delayed beyond the timeline given in the regulations. On an average it takes 2 years for completion of an investigation as against 1 year set in DGCA regulations, in the event of an accident. As for a runway excursion like the Mumbai Spicejet on 02 July 2019, the time line is 30 days if it is not categorised as an accident.
What is surprising is that the punishment has been handed out even prior to the conclusion of the final investigation where convincing evidence must presented proving beyond reasonable doubt that the crew operating the said flight wilfully violated the procedures thereby causing the incident/accident. Please keep in mind that the objective of the investigation is not to apportion blame but to find out the cause of the incident /accident. This is the dichotomy in the system, they objective is not to apportion blame but they end up blaming the crew.
Whereas corporates and accountable managers who are accountable for safety escape punitive action for death caused due to criminal negligence, e.g. SpiceJet Trainee Engineer death in Kolkata, soft targets like pilots get caught in the web.
Following is reported to be the quantum of punishment based on prima facie/preliminary investigation, pending the final investigation.
I am all for abiding the law of the land but arbitrary punitive action passed by the regulator without considering all facts is unjust. Humans are social animals and they live in a society. They derive their strength from other members in the society and co-exist due to their status and reciprocity in the society.
A member of the society accused of a wrong doing and punished as per the law after a fair investigation and trial is a natural process. On the other hand a member accused of a wrong doing but without a fair investigation/trial serves as blotch on the members image and she/he is psychologically impacted. This could also lead to disassociation by the society.
The final investigation by the regulator can only establish ‘probable cause’. This is because the cause of the accident/incident can be different from the point of view of the investigation and as contested in the courts based on the law of the land. The lawyers can prove other causes, therefore the investigators establish the probable cause only.
Reasonable doubt exists when there is clear, specific and unbiased reason for suspecting the cause of the accident/incident. The initial suspension can be based on reasonable doubt as per Indian Aircraft Rules 1937.
Punitive action can only be taken after proving with clear and convincing evidence. This means that punitive action can only be taken after the final investigation has been concluded.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 1912 OF 2015 (Arising out of SLP No. 31761 of 2013 AK Choudhary VS Union of India
Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity.
Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defense. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution.
The DGCA enforcement manual does not list safety incidents. It is therefore left to Indian Aircraft Rule19 (3) wherein the License can be suspended during investigation in public interest by giving reason in writing.
Keeping safety as the primary objective, rules have been formulated, like the Indian Aircraft Rule 19 where the wording used is ‘reasonable doubt’. If there is reasonable doubt regarding safety, DGCA can suspend the license/certificate.
If a fair and a thorough preliminary investigation points at a reasonable doubt that sufficient grounds exist for suspension in public interest, DGCA may do so.
The accused (pilot) is not given access to any evidence by DGCA and a show cause issued after a brief meeting where at times data like surface movement radar data is used instead of the aircraft Flight Data Recorder data. There is no preparation time or material given to the accused and before the accused is aware of what actually happened, everything is over.
Punitive action can only be taken after proving with clear and convincing evidence. How can punitive action be taken without investigating the cse and based on prima facie. License suspension for varying period has now become a norm. The Honourable Supreme Court of India ruling must be taken as a bench mark for restricting the period of suspension to 90 days. The quality of reports must be improved to include other contributory causes like policies (FDTL), Fatigue, Company etc.
The principle pf legitimacy must be followed in all cases.