1989 PLP 1026 (CLC)

AJMAL MIAN, C.J. The petitioner has sought the declaration that the order of cancellation dated 26‑1‑1987 of his licence as a civil pilot is without lawful authority as it is in violation of the Rules.

2. The brief facts leading to the filing of the above petition are that the petitioner was holding licence of a civil pilot and was employed with F.I.A. It appears that on 4‑2‑1986 he was the captain of P.I.A. Flight No.PK‑300 Boeing 747 which was operating from Karachi to Islamabad. It appears that when the plane reached Islamabad Airport, it landed without opening the wheels, though no accident had occurred. After that it appears that the petitioner was issued a show‑cause notice dated 18‑9‑1986 by respondent No.l, wherein in para. 2 it was alleged that the petitioner had flouted the Civil Aviation Rules. 1978 (hereinafter referred to as the Rules), referred to in the above para. It may be advantageous to reproduce para. 2 of the above show‑cause notice, which reads as follows:‑ (2) The following acts/omissions on your part caused /contributed to the above accident (a) You failed to fully comply with the landing procedure provided for in the Operations Manual contrary to rule 251(9) of the Civil Aviation Rules, 1978. (b) You failed to ensure that the flight check system is carried out in detail, contrary to rule 272(4) of the said Rules. (c) You failed to comply with the relevant S.O.P. for B‑747. (d) You adopted non‑specific procedure by pulling circuit breakers which disabled the warning system contrary to the instruction laid down in the Operations Manual. The petitioner submitted his reply to the above show‑cause notice on 1‑10‑1986 in which. though in the end it was stated that there was no violation of any Rules, but there was no specific denial of the allegations contained in the above quoted para. 2 of the show cause notice. On the other hand at page 1 of the reply, the following averments were made:‑ In my opinion the circumstances in which the accident took place is shrouded in an inexplicable atmosphere in that the entire operating crew, by and large, were labouring under a mental state rendering them oblivious of normal functioning demanded by the landing phase of the aircraft operation. The only possible reason which could precipitate such a common mental state, could be an external malicious act which had the effect of temporarily incapacitating our minds in order to achieve some ulterior objectives. In such unique situation, it was appropriate for the Investigation Board to have given a thought to such a possibility which could not have been ruled out. After that the impugned order dated 26‑1‑1987 was passed whereby the AITP Licence No.33 of the petitioner was cancelled. The petitioner being aggrieved by the above order has filed the present writ petition.

3. In support of the above petition Mr. Khawaja M. Hussain Darabu. learned counsel for the petitioner has vehemently urged as follows: ‑ (i) That under Rule 311 of the Rules, the petitioner was entitled to two notices and as admittedly only show‑cause notice was issued, the impugned order is in violation of law, and hence without lawful authority (ii) That the petitioner s licence could not have been terminated, in view of section 7(2)(d) of the Civil .Aviation Ordinance, 1960, without having the investigation conducted, and since the petitioner way not furnished with the copy of the enquiry report, no action could have been taken. On the other hand. Mr. A Sayeed. learned Deputy Attorney General has contended as under:‑ (i) That under Rule 312 of the Rules the petitioner was provide two alternate Adequate remedies in the form of review before the respondent and an appeal before the Federal Government which the petitioner failed to avail of and, therefore, the petition should be dismissed on that ground, particularly keeping in view that the matter involves technical disputed question of fact. (ii) That under the Rule 311 there is no requirement that there should he two notices and what is required is that the petitioner should hay a been informed as to the allegations against him. (iii) That there is no statutory requirement that the copy of the investigation report is to be furnished to the person involved in the incident and in the present case factually the petitioner did not ask for it.

4. Adverting to the first submission of the learned counsel for the petitioner that under Rule 311 of the Rules, the petitioner was entitled to two notices and as admittedly only one show‑cause notice was issued the impugned order is in violation of law, and hence without lawful authority, it may be observed that learned counsel for the petitioner has relied upon clause (2) of Rule 311, which provides that a notice under sub‑rule (1) shall contain full particular of the facts or circumstances that constituted the ground or grounds for the variation, suspension or cancellation of the licence or certificate, as the case may be, whereas clause (3) provides that before taking action under this rule to vary, suspend or cancel a licence or certificate, the Director‑General shall give notice in writing to the holder of the licence or certificate, of the facts and circumstances that in the opinion of the Director‑General, warrant consideration being given to the variation, suspension or cancellation of the licence or certificate under the rule, and give to the holder of the licence or certificate an opportunity to show cause why the licence or certificate should not be varied, suspended or cancelled under the above rule. It has, therefore, been urged by him that under above clauses (2) and (3) of Rule 311 the requirement is of two notices, one containing the facts which should be followed by a show‑cause notice. On the other hand, Mr. Qadir Sayeed learned Deputy Attorney‑General appearing for the respondents has submitted that there is no such requirement under the rules. In the instant case there seems to be no dispute as to the factual aspect that the landing of the plane at the Islamabad Airport on the day of the incident was not normal. It landed without opening the wheels and, therefore, it cannot be denied that there was possibility of the aeroplane being crashed The above facts have not even been denied by the petitioner. Keeping in view the above factual aspect, in our view, the show‑cause notice which was issued to the petitioner substantially complied with A the requirement of Rule

311. The petitioner in his reply to the Show‑Cause Notice has not been able to point out any plausible reason which could have constituted a reason beyond his control in order to immune him from the liability.

5. As regards the filing of the review petition and the appeal provided under rule 312, we may observe that it is not in every case the petitioner should avail of alternate remedy but if he cant demonstrate that the impugned order is patently without jurisdiction, he is entitled to maintain a petition directly, if we would have agreed with the petitioner s submission the above rule would not have been a ground for refusal to grant the relief if the petitioner would have been otherwise entitled to it.

6. As regards the non‑compliance of section 7(2)(d) of the Ordinance, we may observe that it is riot the case of the petitioner that there was no investigation conducted or that he was not examined by the Board which had conducted the investigation. There is no[ Rule in the Rules entitling the petitioner to have a copy of the C enquiry report. On the other hand Rule :334 of the Rules gives al discretion to the Director‑General either to make the enquiry report public or to withhold it. Additionally the petitioner did not ask for al copy. The contents of his reply to show‑cause notice indicate that he had the knowledge of the findings of the Investigation Board.

7. However, we have noticed on fact that the cancellation order does not specify the period for which it was to operate. In our view respondent No.l should have specified a reasonable period during which the cancellation order was to operate. A person should not be denied the means of his livelihood unless it is found that he is no longer competent to discharge his duties for all time to come or that he has attained the age of retirement. We may observe that nearly three years period has expired since the date of suspension of the petitioner s licence and about 2 years from the date of cancellation, in our view that in case the petitioner makes an application for the renewal of his licence, the respondents would consider the same sympathetically. With the above observations, the petition is dismissed with no order as to costs. A . A . /S‑291/ K Petition dismissed.