Coronavirus: Delhi High Court suspends breath analyser tests through tube process for air traffic controllers

The Delhi High Court on Monday suspended breath analyser tests (BAT) through tube process for air traffic controllers in the wake of the coronavirus outbreak, saying in this medical emergency ATCs cannot be put to further risk.

The high court, while passing interim measures, directed authorities to hold an urgent meeting on Tuesday to explore alternative methods for the test, which is not invasive in nature and does not increase chances of spread of COVID-19.

Justice Prathiba M Singh directed the Directorate General of Medical Services (Air), Delhi to immediately convene a meeting of the DGCA, AAI, Ministry of Civil Aviation, including doctors or medical specialists on Tuesday or at the earliest possible convenience to draw up an alternative protocol for conducting breath analyser tests on air traffic controllers (ATCs).

The court said the proposed protocol to be implemented till COVID-19 abates be placed on record by the Directorate General of Medical Services (DGMS) on the next date on March 27 with an affidavit.

"The breath analyser test (BAT) currently being conducted shall remain suspended with immediate effect at all airports till further orders," the court, in its nine-page order, said and added that the directions shall operate till further orders.

The court was hearing a plea by the Air Traffic Controllers' Guild (India) seeking direction to the Directorate General of Civil Aviation (DGCA) and the Airport Authority of India (AAI) to temporarily suspend the BAT through the current tube process to prevent further spread of the virus.

The petitioner said that on a random basis 10 per cent of the ATCs are subjected to the BAT, which uses equipment that could result in the spread of COVID-19.

Advocates Piyush Sanghi and Khushbu Sahu, appearing for the Air Traffic Controllers' Guild (India), said authorities can adopt other alternative mode for testing, including urine or blood samples.

During the hearing, advocate Anjana Gosain, representing the DGCA, said BAT would be conducted in a random manner and instead of conducting it on 10 per cent of the ATCs, the same would be reduced to two per cent.

The court said it was clear that the apprehension expressed by the petitioner's members is genuine in nature.

"While there is no doubt that breath analysing tests are essential to ensure that ATCs who come to perform their functions are not under the influence of alcohol, even if there is a remote chance in the use of BAT equipment resulting in further spread of COVID-19, the same ought to be prevented," it said.

The court said the equipment used for testing could become a source of further spread of COVID-19 and there was an emergent need for authorities to decide on an alternate, less invasive and less risky equipment for conducting BAT.

However, from the submissions made on Monday, clearly, no alternative method has been finalised at this point. After the Kerala High Court had expressed initial apprehensions, authorities ought to have looked into the matter, it said.

Justice Singh said presently there is a medical emergency not only in India but across the world and under such circumstances permitting the use of same BAT equipment, which could pose a risk to the ATCs, would be "non-pragmatic and unwise".

"The same could also have a deleterious impact if any of the ATCs contract COVID-19 after undergoing BAT. Considering that BAT equipment are stored in airports where the incidents of the virus is extremely high, use of the said equipment which would require ATCs to breathe into or out of the said equipment is likely to expose them to the virus," the court said.

It noted that the petition raises issues of safety of the ATCs and added that while there can be no doubt that the condition of the ATCs at the time of coming to duty has to be screened, at the same time, they cannot be subjected to further risk due to undergoing BATs.

The court, which noted that BAT is a well-settled protocol which can be conducted with various other alternative mechanisms rather than the method of using tubes currently used by the DGCA, was informed by advocate Gosain that this is the only recognised mode currently available for the DGCA.

The court took judicial notice of the fact that even less invasive testing or other equipment such as use of biometric equipment has been suspended by most organisations.

It noted that the AAI, in its letters of February 20, March 6 and 18, have asked the DGCA to suspend the BAT.

The court, which took on record the assurance and undertaking given by the ATCs that they will never come on duty under the influence of alcohol, said it was expected that the ATCs are responsible officers and are conscious of the extenuating circumstances currently prevalent.

It also said an undertaking and a self-declaration shall be obtained under the signature of each ATC who reports to work and any violation by them will entail severe consequences, including suspension of their licence.

"The DGCA is, however, permitted to conduct any other way of testing which is not invasive in nature and which does not increase the chance of spread of COVID-19. Urine/blood testing, if opted for as the method of testing, shall be done by using disposable syringes and/or sterilised equipment, in a two per cent randomised sample, until the new protocol is framed so that any violation of the self-declaration or undertaking can be detected," it said.

The court asked the AAI to provide any facilities that may be needed for the DGCA to implement these directions.