Kerala High Court
Dr. Nebu John Varghese vs P.K. Babu on 14 December, 1999
Equivalent citations: 2000CRILJ1903
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT AR. Lakshmanan, J.
1. The petitioner herein was a passenger in K.S.R.T.C. Super Fast, No. KL-15/3184, TS 120, bound to Trivandrum from Thrissur on 26-11-1999 at 7.30 p.m. It is a night service bus. The petitioner, to his utter dismay and disbelief, noticed the respondent-driver of the bus, P.K. Babu smoking cigarette while driving nearly one hour after the start of the journey. The petitioner, however, consoled himself thinking that it may be the first and the last. However, he was dumbfounded to see the driver lighting cigarettes one after another and smoking. He further states that taking cue from the driver who is the captain of the bus two other passengers also started smoking in the bus while the bus was in motion. According to the petitioner, by the time this smoke-filled bus reached Trivandrum, the driver had smoked atleast ten cigarettes. The petitioner has written a letter to this Court dated 27-11-1999 notwithstanding the above incident, on the basis of which the action was initiated as directed by the Honourable the Chief Justice for contempt against the driver of the bus under Rule 7 of the Contempt of Courts (High Court) Rules issued under the Contempt of Courts Act, 1971. Pursuant to the direction issued by this Court, both the petitioner and the driver appeared before us on 14-12-1999. The petitioner was examined. He deposed in terms of the allegations contained in his petition.
2. The driver of the bus - P.K. Babu - on questioning by us has admitted the charge and has tendered an unconditional apology after admitting that he has committed contempt. He deposed as follows :-
I have perused the complaint/petition preferred by Dr. Nebu John Varghese alleging that I have smoked in the bus, of which I was the driver, while on duty. The number of the bus is TS-120 plying between Palakkad and Trivandrum. The incident alleged occurred on 26-11-1999. My duty commenced from Palakkad and the bus reached Trichur depot at about 6 p.m. It is a fact that I smoked 3 to 4 cigarettes while driving the vehicle. I do not want to engage any lawyer and I will not repeat the mistake in future. I may be pardoned.
3. On a consideration of the attendant facts and circumstances, we are not inclined to view this incident as a solitary one isolated from the rest of the cases of blatant violation of the directions contained in the judgment of this Court banning smoking in public place. We are constrained to observe that the judgment of this Court has been observed more in its breach than on its compliance. Few persons have also issued statements about the ban order. The police taking cue from such remarks have displayed a sense of complete complacency and indifference in enforcing the judgment of this Court which, in our opinion, amounts to abdication of their duty as custodians of law and order responsible for maintenance of rule of law. Therefore, more than the respondent in this petition, it is the police and law enforcing agency who have flouted the judgment of this Court. But for their total indifference to the judgment of this Court banning smoking in public place, the respondent herein would not have ventured to indulge in smoking while driving the vehicle thereby blatantly violating the judgment of this Court besides causing a threat to the lives of several innocent passengers travelling in the bus. On the whole, we are of the opinion, that the action of the authorities in not enforcing the ban order is a challenge to the very rule of law itself and orderly life which they are expected to maintain.
4. Now, revert to the facts of the present case, the respondent P.K. Babu filed an affidavit stating that on 26-11-1999 he was operating the bus and since the bus service was during night hours, he lighted cigarettes when the bus reached different halt stations for the purpose of avoiding sleeping and uneasiness and to get concentration in driving the vehicle. It is also submitted that altogether he had lighted 3 to 4 cigarettes for the entire journey from Palakkad to Trivandrum. He further submitted that there is no wilful disobedience from his part and he has not wilfully violated the judgment passed by this Court and he has not intended to cause difficulties to the public and that he may be pardoned. He further submitted that the above act was done by him due to the unawareness of the legal implications of the judgment passed by this Court prohibiting smoking. In paragraphs 5 and 6, he has stated thus :-
I am tendering unconditional apology before this Hon'ble Court, and I also undertake that I will not commit this mistake in future. I may be pardoned for the inconvenience caused to the petitioner herein, the other passengers. I may also be excused for the inconvenience caused to this Hon'ble Court.
I humbly prayed that the unconditional apology may be accepted and I may be parsdoned and further proceedings pursuant to the complaint may kindly be dropped.
All the facts stated above are true and correct.
5-6. We are of the opinion that the action on the part of the driver in smoking cigarette while he was actually on the wheels cannot at all be tolerated. A public servant, who is on duty, has to observe certain norms and discipline in his conduct. By smoking cigarettes, he has not only violated the ban order passed by this Court, but also caused a lot of inconvenience to passengers. We are not satisfied with the reasons adduced by the driver in justification of his illegal conduct while on duty.
7. Taking into consideration the gravity of the offence committed by the respondent herein, we are of the opinion that the matter has to be viewed very seriously. Section 12 of the Contempt of Courts Act says that a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine, which may extend to two thousand rupees, or with both; provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. As we are not satisfied with the explanation offered by the respondent-driver, we impose a fine of Rs. 1000/- (Rupees one thousand only), which shall be paid by the employer of the respondent, viz., Kerala State Road Transport Corporation, who was represented by the counsel for the K.S.R.T.C. The fine amount shall be paid by the Corporation to the Secretary, Kerala High Court Legal Services Authority before 5.00 p.m. tomorrow (15-12-1999) initially and subsequently adjusted towards the monthly pay and other emoluments payable to the respondent for January, 2000. Though the offence committed by the respondent is grave in nature deserving imprisonment for a period in Jail, we punish him with imprisonment till the rising of the Court for the day.
8. We hope that this verdict will serve as an eye opener to all and particularly the law enforcing agency of the State who are responsible for enforcing the ban order passed by this Court.
9. It is also pertinent to notice here that the Division Bench judgment of ours was also fully endorsed by another Division Bench comprising of P.K. Balasubramanyan and K.A. Mohammad Shafi, JJ. who passed an order on a revision filed by one smoker challenging the validity of the order which was issued by the District Collector under Section 133A of the Criminal Procedure Code. The learned Judges have observed that one had no fundamental right to smoke in public place and any technical objection under Section 133A could not be allowed to prevail over the object sought to be achieved by the order of the District Magistrate and what was sought to be achieved by the order is preventing a person from smoking in public, causing impairment of health to others. The Bench further proceed to say that when a laudable object was sought to be achieved, public interest had to prevail, even assuming that there was some technical flaw in the order issued by the District Magistrate.
The Original Petition is disposed of as above.