DIRECTOR – GENERAL OF CIVIL AVIATION
G.P.S.DE SILVA C.J.
KULATUNGA, J.ANDWIJETUNGA, J.
S.C. APPEAL 119/94.
12 MAY, 16 JUNE, 11 & 21 JULY AND 15 SEPTEMBER 1995.
Certiorari – Suspension of pilot's licence and instructor rating-R'ules of naturaljustice – Principle of audi alteram partem.
The Petitioner was a professionally qualified commercial pilot. He held acommercial pilot's licence issued by the Director General of Civil Aviationunder the provisions of the Air Navigation Act. He was an airplanes singleand multi-engine instrument pilot and an instructor. He was employed as aTraining/Co-ordinator/Flight instructor by the Asian Aviation Centre (Pvt.)Ltd. The Director General of Civil Aviation by his letter dated 14.06.93suspended the Petitioner's pilot's licence for one year from 1st June 1993 interms of the Air Navigation Regulations (ANR) 259(3) (later corrected to259(1) as he had "violated relevant ANR in the presence of a student onboard the flight". The ANR (1) confers on the Respondent a discretion inregard to ttTe cancellation or suspension of a licence or certificate issuedunder the Regulation. This action of the Director-General was the sequel toan inquiry into an alleged incident of dropping teargas from a helicopter oraircraft over the Kanatte cemetery on 28.04.93 during the fugeral processionof the late Mr. Lalith Athulathmudali. The Petitioner and the student pilothad been questioned during the inquiry and their statements-were recordedon 1.5.93. The inquiry team reported the following findings against thePetitioner:-
Contravention of Air Navigation Regulation (ANR) '137, that is, flyingover a public gathering below safe altitude without proper authority;
Contravention of (ANR) 138, that is, flying over populous areas belowsafe altitude without proper authority,
Non-compliance with air traffic control instructions whilst operating in acontrolled zone (ANR 139,114). On receipt of the report the Director-Generalby letter dated 14.05.93 asked the Petitioner to show cause as to why his
commercial pilot's licence and the flight instructor ratings should not besuspended or cancelled as there is "prima facie evidence' to show that theaircraft piloted by him on 28.04.93 had contravened (i) ANR 137, (ii) ANR138, (iii) ANR 114, 139. The Petitioner by his letter dated 24.05.1993 deniedevery allegation.
The use of the expression °prima facie evidence" shows it is not conclusiveevidence which could not be rebutted.
Despite the categorical denial the Director-General failed to hold anyinquiry. Once the Petitioner denied the charges, justice plainly required aproper inquiry at which he could have given evidence and called witnessesto support his position. It was essential that a fair opportunity should havebeen afforded to the Petitioner to be heard in his defence. There has beena failure of a fundamental principle of justice, namely, that a man's defencemust always be fairly heard. Procedural fairness and regularity are of theindispensable essence of liberty.
Per Kulatunga, J.
An irreducible minimum of the requirements of natural justice are :
the right to be heard by an unbiassed tribunal.
the right to have notice of charges of misconduct, and
the right to be heard in answer to those charges.
Cases referred to:
Shaughnessy v. United States (1953) 345 US 206.
Ridge v. Baldwin (1964) AC 40, 132
Fountaine v. Chesterton (unreported – cited in case No. 4)
John v. Rees (1969) 2 WLR 1294, 1332
Jayatilleke v. Kaleel (1994) 1 Sri LR 319, 394
Stevenson v. United Road Transport Union (1976) 3 All ER 29, 41
Labouchere v. EarI of Wharneliffe (1879) 13 Ch. D. 346, 351
Fisher v. Keape (1878) X1 Ch. D 353, 360.
APPEAL from judgment of Court of Appeal,
N. Sinnathamby with R. Balasubramaniam for Petitioner-Appellant.Mohan Peiris S.S.C. for Respondent -Respondent.
22 September, 1995.
G.P.S. DE SILVA, C.J.
The Petitioner is a professionally qualified commercial pilot. Heholds a commercial pilot's licence issued by the Director General ofCivil Aviation (the Respondent) under the provisions of the Air NavigationAct; He is an airplanes single and multi-engine instrument pilot and aninstructor. He was employed as a training/co-ordinator/flight instructorby the Asian Aviation Centre (Pvt) Ltd., whose training centre is basedat the Colombo Airport, Ratmalana.
The Director General of Civil Aviation by his letter dated 14.06.93(exhibit D) suspended the Petitioner's pilots licence for one year from1 st June 1993 in terms of the Air Navigation Regulations (ANR) 259(3);his instructor rating was also suspended for one year from 1st June1993 as he had "violated relevant ANR in the presence of a student onboard the flight". It is right to add that the Respondent in an affidavitfiled in the Court of Appeal has stated that the reference to ANR 259(3)was a mistake and the correct reference is to ANR 259 (1). It is to beobserved that ANR 259(1) confers on the Respondent a discretion inregard to the cancellation or suspension of a licence or certificate issuedunder the Regulations.
The Petitioner moved the Court of Appeal by way of a writ ofcertiorari to quash the decision of the Respondent contained in theaforesaid letter dated 14.06.93 (exhibit D). His application wasunsuccessful and hence the present appeal to this court. The Court ofAppeal granted leave to appeal to this Court on four questions of lawbut at the hearing before us we invited Counsel to address us on thefollowing question of lawwhich was one of the matters upon which theCourt of Appeal had granted leave to appeal to this court; "Did therespondent fail to comply with rules of natural justice, in'particular theprinciple of audi alteram partem?"
The facts which gave rise to the Petitioner's complaint may be brieflystated thusThe Secretary to the Minister of State for Defence by hisletter dated 30.04.93 directed the Respondent tb inquire into an allegedincident of dropping teargas from a helicopter or aircraft over the Kanattecemetery on 28.04.93 during the funeral procession of the late Mr. LalithAthulathmudali. An "inquiry team” was accordingly appointed toascertain, inter alia, whether the flight contravened any flight regulationsand whether tear gas was dropped by the aircraft.
The "inquiry team" questioned the Petitioner and the “student pilot"and recorded their statements on 01.05.93. The "inquiry team"submitted its report to the Respondent on 04.05.93.The "inquiry team"reached, inter alia, the following findings against the Petitioner: (i)contravention of Air Navigation Regulation (ANR) 137, that is, flyingover a public gathering below safe altitude without proper authority; (ii)contravention of ANR 138, that is, flying over populous areas belowsafe altitude without proper authority; (iii) non-compliance with air trafficcontrol instructions whilst operating in a controlled zone (ANR 139,114).
Upon receipt of the report, the Respondent by letter dated 14.05.93(exhibit B) asked therPetitioner to show cause as to why his commercialpilot's licence and the flight instructor ratings should not be suspendedor cancelled as there is “prima facie evidence" to show that the aircraftpiloted by him on 28.04.93 had contravened (i) ANR 137; (ii) ANR 138;
ANR 114,139. It is a matter of significance that the Respondent inhis "show cause letter" to the Petitioner uses the expression "primafacie evidence". In other words, it is not conclusive evidence butevidence which could be rebutted by other evidence to the contrary.
To the “show cause letter" sent by the respondent, the petitionerreplied by his fetter dated 24th May 1993 (exhibit C). The Petitioner'sreply is of critical importance to the issue arising for decision in thisappeal and is set out below, almost in its entirety
"With regard to the alleged contravention of the Air NavigationRegulations 137,138,114,139 as set out in your letter, I wouldmost sincerely state that I did not contravene any of the aboveregulations nor did I ever intend to contravene them. Upto date I
have had no allegations whatsoever from my superiors, that Ihave committed any wrong in the course of performing myprofessional functions.
With regard to alleged violation of regulation 137,1 did maintainan Air Traffic Control cleared altitude of 1000 feet during my saidflight and as such I am confident that I did not violate the saidRegulation. My aircraft arrived over Katunayake VOR atapproximately, 0950 hrs, U.T.C. for the purpose of training mystudent, M. Chandrasiri, and after the completion of the trainingsortie, on my return to Ratmalana Airport in the normal course ofnavigation to arrive at Ratmalana, clearance was given byRatmalana Tower to maintain an altitude of 1000 feet, and callAirfield in sight, with which I complied. In these circumstances Iearnestly state that I did not intend to violate the said Regulation,and did not in fact violate the same.
As to Regulation 138, I wish to state that in view of stress ofweather, extremely unfavourable weather conditions had settledover the coastal region of the city, which rendered a flight throughsuch area unsafe. In any event, I did not fly below safe altitudesince I was maintaining an Air Traffic Control cleared altitude of1000 feet, as mentioned above, which is a safe altitude for theCessna 152, that is capable of gliding away from such area incase of propulsion failure. (Attached please find copy of METARissued for Ratmalana).
With regard to allegation of non compliance with AirTraffic Controlclearance, I would sincerely state that the said allegation isfactually incorrect for the following reasons:
ColomboTower Cleared me to Ratmalana at 1000 feet, and followa coastal route, which I did, on arrival of 10 Nautical Miles southof Katunayake, I was requested to contact Ratmalana which Ialso did. Upon contact, RatmalanaTower cleared me to Ratmalanaat 1000 feet, but did not inform me of any restrictions such as tomaintain a coastal route. Therefore, I chose a direct route fromthat point onwards at my discretion which has been the normalprocedure adopted by all the pilots, which the AirTraffic Controllersare aware of, unless otherwise advised by them.
I have always acted with utmost responsibility without anyintention to commit any violation of any regulation in the courseof the performance of my duties, in all the above circumstancesI kindly request you to consider the above matter mostsympathetically and exonerate me from all the allegations made,which would otherwise adversely affect my career, which I loveso much."
It is very clear that the Petitioner has specifically denied theallegations of the Respondent relating to the contravention of AirNavigation Regulations. Notwithstanding the categorical denial of thecharges by the Petitioner, the respondent failed to hold an inquiry:instead, the Respondent by his letter dated 14.06.93 (exhibit D) ad-dressed to the Petitioner proceeded to suspend his pilot's licence forone year and also suspended his instructor rating for one year. ThePetitioner's employer, Asian Aviation Centre (Pvt.) Ltd., has informed.the Petitioner that his services have been suspended in view of theallegations made against him by the Respondent.
Once the Petitioner denied the charges, justice plainly required the.Respondent to hold a proper inquiry at which the Petitioner could havegiven evidence and called witnesses in support of his position whichhe had indicated in his reply to the "show cause* letter. In my view, itwas essential that a fair opportunity should have been afforded to thePetitioner to be heard in his defence, inasmuch as he had in no uncertainterms denied all the charges made against him. There were manyimportant disputed questions of fact upon which the Respondent hadto satisfy himself before he could properly exercise the discretion vestedin him and suspend the petitioner's licence; it is the licence upon whichthe petitioner's livelihood rested. The question whether the Petitionerhad complied with Air Traffic Control Instructions and whether he haddeviated from the prescribed route Ipomed large in the area ofcontroversy. Mr. Sinnatamby for the petitioner submitted that it wasnot possible to reach a correct finding on this issue without perusing atranscript of the A.T.C. tapes recorded at the. Ratmalana Tower. Withthis submissioo, I entirely agree. It is relevant to note that the petitioner'sposition is that on arrival at 10 nautical miles south of Katunayake, hewas directed by Katunayake to contact Ratmalana and this he did.According to the Petitioner, Ratmalana "did not inform him of any
restrictions such as to maintain a coastal route". Even the "inquiryteam" does not appear to have had before it the transcript of the A.T.Ctapes recorded at the ftatmalana Tower.
Having regard to the matters that were in dispute between theparties, it was very necessary for the Respondent to have held aninquiry and to have had the evidence of at least two essential witnesses,namely the Air Traffic Controllers at Katunayake and Ratmalanarecorded. The position taken up by the Petitioner could only have beenproperly considered and evaluated in the light of the evidence of thesetwo witnesses. The fact that ANR 259(1) vests a 'discretion' in theRespondent coupled with the fact that the "show cause letter" speaksof"prirria fac/e" evidence makes the need for a formal inquiry all thegreater. An equally important fact is that the matters in dispute wereof a technical nature. Admittedly, no inquiry was held after the Petitionerdenied the charges preferred against him.
Mr. Mohan Peiris for the Respondent strenuously contended beforeus that there was no need whatsoever for a formal inquiry. The "inquiryteam" had probed all aspects that need to be considered and hadquestioned the Respondent and the student pilot on all relevant matters.With these submissions, I find myself unable to agree. The inquiryconducted by the "inquiry team" was at best an inquiry of a preliminarynature. Irf my view, the Respondent cannot possibly rely on thestatement of the Petitioner and his student pilot recorded onlst May1993 as constituting compliance with the rules of natural justice. Thereis no material on record to show that the Petitioner was informed atthat stage of the precise nature of the allegations against him. He hadno opportunity whatever of calling evidence in support of his position.As far as the Petitioner was concerned, the inquiry concluded in amatter of a few hours on the 1st of May itself. It was not even thefinding of the Court of Appeal that a formal inquiry was unnecessary inthe facts and circumstances of this case.
On the other hand, the Court of Appeal ultimately arrived at thefollowing finding in favour of the Respondent:-
"Upon a consideration of the respective claims of the Petitioner
and the Respondent in regard to the violation of the rules in regard
to compliance with air traffic control instructions, I am of the viewthat the Director took an honest and reasonable decision uponthe material before him and he has not misdirected himself eitheron the facts or on the law."
In reaching this finding the Court of Appeal was in error, for it hasoverlooked the fact that no inquiry was held despite the Petitioner'sdenial of the charges preferred against him. This crucial fact vitiatesthe decision of the Respondent and the Court of Appeal appears tohave proceeded on the assumption that an inquiry was held.
On a consideration of the matters set out above, I am satisfied thatthere has been a failure of a fundamental principle of justice, namely,that "a man's defence must always be fairly heard." (AdministrativeLaw by Wade 6th Edn. at page 472). As stated by Jackson, J. inShaughnessy v. United Stated, "Procedural fairness and regularityare of the indispensable essence of liberty." I accordingly hold that thedecision of the Respondent which was communicated to the Petitionerby letter dated 14.06.93 (exhibit D) is void.
For these reasons, the appeal is allowed, the judgment of the Courtof Appeal is set aside, and I direct that an order in the nature of a Writof Certiorari do issue to quash the decision made by the Respondentand communicated to the Petitioner by letter dated 14.06.93 (exhibitD). The Petitioner is entitled to costs of appeal fixed at a sum of Rs.2500/
WIJETUNGA, J. -1 agree.
KULATUNGA, J. – I agree with the judgment of my Lord The ChiefJustice.
I do not agree with the submission of learned Counsel for theRespondent that there was no need whatever for a formal inquiry. Noneof the decisions cited in support of that submission has application tothis case. In Ridge v. BaldwinLord Hodson summed up thus:
"No one, j think, disputes that three features of natural justice standout – (1) the right to be heard by an unbiassed tribunal (2) the right tohave notice of charges of misconduct; and (3) the right to be heard inanswer to those charges".
In Fountains v. Chesterton cited in John v. Rees(4) Megarry, J.referring to the above dicta of Lord Hodson said
I do not think I shall go far wrong if I regardthese three
features as constituting in all ordinary circumstances an irreducibleminimum of the requirements of natural justice
In Jayatillake v. Kaleel(5) this Court observed:
"there are certain procedural safeguards which are
recognised for ensuring fair hearings e.g. the accused should besupplied with a fair statement of the charges. Stevenson v. UnitedRoadTransport Union he should be informed of the exact natureof the charge Labouchere v. Earl ofWharneliffe(7), he should begiven an opportunity of defending or palliating his conduct Fisherv. Keann. The opportunity should be fair, adequate and sufficient.Thus, the right to be heard will be illusory unless there is timeand opportunity for the case to be met – Paul Jackson 'NaturalJustice'p.63".
In the instant case, there has been a clear breach of the rules ofnatural justice. Hence the Appellant is entitled to the relief sought.
IZADEEN V. DIRECTOR -GENERAL OF CIVIL AVIATION