ISLAMABAD – The Islamabad High Court (IHC) has been informed that Pakistan is currently engaged with the European Union Aviation Safety Agency (EASA) and steps are being taken to address all the issues raised by it. The court was further informed that the agency’s “on sight or remote audit” report is scheduled to be announced in January 2021. It was June 30, 2020 when the EASA had suspended all the PIA flights to and over Europe for an initial period of six calendar months commencing from 01-07-2020 and such suspensions are lifted only after a satisfactory EASA “on sight or remote audit.”

It was told in written submission filed by Additional Attorney General (AAG) Tariq Mehmood Khokhar on behalf of the secretary Aviation Division in response to a petition of Syed Saqlain Akhtar, who had challenged the cancellation of his Airline Transport Pilot License (ATPL) by the Civil Aviation Authority (CAA). A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah on December 8, 2020 had declared the CAA order revoking the license of a pilot as “null and void.” The bench also annulled the order about board of inquiry that was constituted to investigate the licenses of pilots in Pakistan. The court further directed the authorities to ascertain the blame that who is responsible for preparing the list of 262 pilots, which was given to the federal minister for aviation.

In this connection, the AAG, Tariq Mehmood, informed the court that the process of verification of 259 pilot licenses now stands completed, while the remaining three are under process. The federations reply through the secretary Aviation Division said that all 860 active pilot licenses were reviewed, and 262 were deemed suspect, and suspended while after verification, 172 were cleared. It added that 50 pilot licenses, including the petitioner’s license, failed verification and were cancelled after due process and with the approval of the federal cabinet.

The reply stated that a further 32 pilot licenses also failed verification and at present remain suspended. Three pilots had died before the Board of Inquiry was notified. The tally of 262 pilots is thus fully accounted for. It told the court that in view of the PIA airplane crash on 22-05-2020, a high-level Board of Inquiry was constituted to investigate into the malpractice, omission/commission observed during the process/conduct of examination for flight crew personnel licenses. Its report concluded that as per the computer data forensic evidence, 262 pilot licenses were based on “fake” examinations. Khokhar submitted that the Supreme Court has taken a suo motu notice of the matter and had passed various orders dated 25-06-2020, 21-07-2020 and 14-12-2020, while it is sub judice before the IHC in the instant petition. Therefore, he urged the high court that the proceedings of the instant petition may kindly be put on hold till the final adjudication of the suo motu case No 1 of 2020.

He said that the exercise of constitutional jurisdiction under Article 199 is discretionary and this court can refuse a relief against an order passed without jurisdiction if it will bring about an unjust consequence. Relief can also be refused in the public interest. Any relief to the petitioner may give rise to a perpetuation of illegality. The IHC was apprised that under Rule 342 (1) of the Civil Aviation Rules, 1994, the director general, CAA may suspend a license, and with the approval of the federal cabinet, cancel a license. The cancellation of all 50 pilot licenses, including the petitioner’s license, was duly approved by the federal cabinet. This constitutes actual dismissal.

The reply pointed that all previous decisions and, or actions now stand merged with the federal cabinet’s approval/decision. The FIA inquiry is in progress. The implication is that there is a prima facie criminal case against the petitioner. It is premature for the petitioner to invoke Article 199 for relief. An alternate adequate remedy is provided by law namely, review under rule 343 and appeal under rule 375 of Civil Aviation Rules, 1994. Under Section 7 of the Pakistan Civil Aviation Authority Ordinance, 1982, the management of the authority vests in the board. It added that the secretary Aviation Division is the ex officio chairman of the board.

The AAG also submitted that section 7 of the Ordinance is not applicable to fact finding inquiry. The board can always ratify decision(s) or actions taken by its chairman (i.e. the secretary, Aviation Division) on its behalf. No Commission of Inquiry was constituted under Section 3 of the Pakistan Commissions of Inquiry Act, 2017.

Khokhar told that a Board of Inquiry was constituted vide notification dated 22-02-2019 by the secretary, Aviation Division. It is merely a fact-finding or preliminary inquiry. Such inquiries are a mere prelude to deciding whether or not any formal action be taken. It is an administrative action only for the simple purpose of information. He further submitted that any adverse order at this stage would have far reaching consequences for Pakistani aviation sector, all Pakistani airlines and all license holders who were issued licenses by the CAA. He maintained that a large number of pilots of Pakistan origin are presently serving foreign airlines and they too would be seriously prejudiced for no fault on their part.

Published in The Nation, Dec 28, 2020