State Consumer Disputes Redressal Commission
Ashok Kumar Parjapat vs Director, Haryana State Roadways on 12 April, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 55 of 2021 Date of Institution : 11.08.2021 Date of Decision : 12.04.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through its concerned/Responsible (Manager, Bus Driver and Regional Officer of Tobacco). [2] Financial Commissioner, Health Department Haryana, Haryana, New Secretariat, Opposite Fire Station, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present:- Sh.Ashok Kumar Prajapat, appellant in person. Ms. Arti Panwar, Assistant District Attorney on behalf of respondent No.1. Sh.Sachin Indora, Law Officer of respondent no.2 alongwith Dr. Gulshan Cherwal on behalf of Health Department. =============================================================== Appeal No. : 98 of 2021 Date of Institution : 16.11.2021 Date of Decision : 12.04.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through its concerned/Responsible (Manager, Bus Driver and Regional Officer of Tobacco at Kaithal and Jind. (in-fact Kurukshetra). [2] Financial Commissioner, Health Department Haryana, Haryana, New Secretariat, Opposite Fire Brigade Office, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present:- Sh.Ashok Kumar Prajapat, appellant in person. Ms. Arti Panwar, Assistant District Attorney on behalf of respondent No.1. Sh.Sachin Indora, Law Officer of respondent no.2 alongwith Dr. Gulshan Cherwal on behalf of Health Department. ============================================================= Appeal No. : 99 of 2021 Date of Institution : 16.11.2021 Date of Decision : 12.04.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through its concerned/Responsible (Manager, Bus Driver and Regional Officer of Tobacco at Kurukshetra) ( in fact at Jind & Bhiwani). [2] Financial Commissioner, Health Department Haryana, Haryana, New Secretariat, Opposite Fire Brigade Office, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present:- Sh.Ashok Kumar Prajapat, appellant in person. Ms. Arti Panwar, Assistant District Attorney on behalf of respondent No.1. Sh.Sachin Indora, Law Officer of respondent no.2 alongwith Dr. Gulshan Cherwal on behalf of Health Department. ============================================================= Appeal No. : 100 of 2021 Date of Institution : 16.11.2021 Date of Decision : 12.04.2022 Ashok Kumar Prajapat, Resident of Village Mohalla, District Hisar, Haryana - 125 042. ......Appellant/Complainant V e r s u s [1] Director General, Haryana State Transport, 30 Bays Building, Sector 17, Chandigarh - 160017, through Director (Chief General Manager, Driver-Conductor & Area Officer of Tobacco at Jind & Bhiwani). [2] Finance Commissioner, Health Department, Haryana New Secretariat, Opposite Fire Brigade Office, Sector 17, Chandigarh - 160017. .....Respondents/opposite parties Present: Sh. Ashok Kumar Prajapat, appellant in person. Ms. Arti Panwar, Assistant District Attorney on behalf of respondent No.1. Sh.Sachin Indora, Law Officer of respondent no.2 alongwith Dr. Gulshan Cherwal on behalf of Health Department. ============================================================= BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER PER RAJESH K. ARYA, MEMBER These appeals have arisen out of the impugned orders passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now known as District Commission), whereby the consumer complaints filed by the complainant (appellant herein) have been dismissed on merits at the preliminary stage. Details of the said consumer complaints are given below:-
S.No. CC No. Date of order District Forum Allowed/Dismissed Appeal No.
1.
253/2021 04.06.2021 DF-II Dismissed 55/2021
2. 668/2021 20.10.2021 DF-II Dismissed 98/2021
3. 669/2021 20.10.2021 DF-II Dismissed 99/2021
4. 670/2021 20.10.2021 DF-II Dismissed 100/2021
2. The grievance raised by the appellant before the District Commission, was that while travelling in the buses of Haryana State Transport, he found that the driver of the bus was smoking, owing to which, he was not feeling comfortable and requested the said driver to stop smoking as it is banned in public places and transport. On his protest, the driver stopped smoking and the conductor assured that he would not allow the driver to smoke in the bus in future. The matter was taken with the higher authorities, who after conducting an enquiry, imposed a fine of Rs.200/- only upon the driver. As such, consumer complaints were filed by him for payment of compensation and also to penalize the driver of the said bus, who was found smoking during plying the same (bus).
3. However, since all the consumer complaints, referred to above, filed by the appellant were dismissed by the District Commission, hence these appeals have been filed by the appellant.
4. As common questions of facts and law have been emerged in above captioned appeals arising out of the orders passed by District Commission, and the facts thereof are analogous to each other to a great extent-therefore, this Commission would like to take them together and decide with a common order.
5. We have heard the arguments of the contesting parties, and have also gone through the entire record of the cases and written arguments also very carefully.
6. After giving our thoughtful consideration to the contentions and pleadings of the parties; as well as findings available on the record, this Commission is of the considered view that all the consumer complaints filed by the appellant, are required to be allowed, for the reasons to be recorded hereinafter.
7. When a specific query was raised by the Bench to Learned Assistant District Attorney, who appeared on behalf of respondent No.1, that what action against the said driver was taken by the department, so that he may not repeat such a heinous act of passive smoking in the bus, she argued that after conducting enquiry in the matter, the said driver was imposed with a fine of Rs.200/- by the Department and no other action was taken. In our opinion, imposing a petty fine of Rs.200/- upon a person and that too, a driver of a bus, is not enough. The Department ought to have taken severe and stringent action against the said driver, who violated rules and regulations and made mockery thereof and the system also. It seems that the disrespect for social and moral values is no issue for the driver. What is more startling is that the Haryana Transport Department is not devising any mechanism to stop such absurd action occurring in the buses by their own drivers and conductors. Such ill practices, among our own society, should be stopped. Therefore, the observation made in the impugned order by the District Commission that imposition of any further cost or fine upon the person/driver for the same fault/act, would amount to double jeopardy, is contra legem. In our concerted opinion, such a defaulter should be awarded austere punishment by the Department.
8. Not only above, Dr. Gulshan Cherwal appeared on behalf of respondent No.2 - Health Department and he also failed to give any satisfactory answer to the query raised by the Bench with regard to passive smoking in the buses. However, he admitted that such smoking in buses is very hazardous for the passengers travelling in the bus. However, an objection was raised with regard to the appellant/complainant not a consumer qua respondent No.2. In this regard, it may be stated here that the service availed of by the appellant/complainant were against consideration paid in terms of bus fare to sovereign and self-government Government of Haryana and both the respondents/opposite parties being the Departments of the said Government, are very much inter-linked with each other and comes under one umbrella, insofar as the ban on use of tobacco products and smoking in public places including public transport etc., is concerned and further because of smoking in the said bus, his fundamental right under Article 21 of Constitution of India has been infringed, as observed by Hon'ble Supreme Court of India in Murli S. Deora Vs. Union of India and Ors. case (supra). Thus, the appellant/complainant is very much a consumer as defined under Section 2(1)(d)(ii) of Consumer Protection Act, 1986 and the objection raised in this regard, being devoid of any substance, is rejected. Therefore, the appellant/complainant is very much a consumer qua the respondents/ opposite parties. The objections raised, thus, being not sustainable in the eyes of law, stands rejected.
9. It may be stated here this is not the first complaint with regard to smoking in buses of Haryana Roadways but earlier also number of such like complaints have been entertained and decided by the Consumer Fora which had been filed by the appellant only, yet, it appears that still the respondents have preferred not to purge the said practice. At the same time, the respondents being Competent Authorities have failed to take necessary steps to ensure that there is no smoking by their staff or by the general public, at the public places; in the buses/bus stands, as a result whereof, the appellant was caused a lot of inconvenience, harassment and agony. It is ironical that this person (Ashok Kumar Parjapat) has taken a cause, which is of common public interest and he has to come to this Commission again and again with the same grievance of smoking in buses and the Department is not doing anything despite express instructions of the Government of Haryana not to smoke in public places and government vehicles including buses. Even our Hon'ble Supreme Court of India vide order dated 02.11.2001 passed in the case of Murli S. Deora Vs. Union of India and Ors., Writ Petition (Civil) NNo.316 of 1999, clearly put a bar on smoking in public places, public conveyances, including railways etc.. The said order of Hon'ble Apex Court reads thus:-
"Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then - why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously - 'yes'. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.
The statement of objects and reason of (The) Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia, provides, "Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis; certain diseases of the heart and arteries; cancer of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc., are also reported to be among the ill effects of cigarette smoking." Similarly, the statement of objects and reasons of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, pro-vides, "Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs. 13,500 crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry".
In this view of the matter, when this petition under Article 32 of the Constitution of India came for orders on 31st August, 2001, we have passed order for implementing 1975 Act. At that time of hearing, learned Attorney General as well as counsel for the parties submitted that considering harmful effect of smoking, smoking in public places is required to be prohibited. On this submission, we sought response of the Central Government. As no affidavit was filed during the stipulated time by the Central Government, on 28th September, 2001, we were required to adjourn the matter. Today also, when the matter came up for hearing no response is filed on behalf of the Central Government. However, learned Attorney General with all emphasis at his command submitted that appropriate order banning smoking in public places be passed. Learned counsel for the petitioner also submitted to the aforesaid effect. Counsel appearing for other respondents also supported the same.
In the petition, it is pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential carcinogens, carbon monoxide, irritants, asphyxiates and smoke particles which are the cause of many diseases including the cancer. It is alleged that three million people die every year as a result of illness related to the use of tobacco products of which one million people belong to developing countries like India. The World Health Organisation is stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to this organisation, in the last half century in the developing countries alone smoking has killed more than sixty million people. Tobacco smoking also adds to the air pollution. Besides cancer, tobacco smoking is responsible for various other fatal diseases to the mankind.
It is further submitted that statutory provisions are being made for prohibiting smoking in public places and the Bill introduced in the Parliament is pending consideration before a Select Committee. The State of Rajasthan has claimed to have passed Act No. 14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service vehicles for that State. It is stated that in Delhi also there is prohibition of smoking in public places.
Learned Attorney General for India submits and all the counsel appear-ing for the other parties agree that considering the adverse effect of smoking in public places, it would be in the interests of the citizens to prohibit the smoking in public places till the statutory provision is made and implemented by the legislative enactment. The persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smokers.
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely :
1. Auditoriums
2. Hospital Buidings
3. Health Institutions
4. Educational Institutions
5. Libraries
6. Court Buildings
7. Public Office
8. Public Conveyances, including Railways.
Learned Attorney General for India assured the court that Union of India shall take necessary effective steps to give wide publicity to this order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.
We further direct the Registrar General to intimate the State Governments Union Territories as well as the Commissioners of Police as mentioned in our orders dated 31st August, 2001 and 28th September, 2001 of this Court with directions for submission of their compliance report in this Court within five weeks from today. Union of India shall also file its response at the earliest.
List after six weeks."
10. Thus, the Hon'ble Apex Court in its wisdom after realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, directed and prohibited smoking in public places and issued directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely auditoriums, Hospital Buildings, Health Institutions, Educational Institutions, Libraries, Court Buildings, Public Offices and Public Conveyances including Railways.
11. It may also be stated here that under similar circumstances, this Commission vide order dated 16.09.2021, in a bunch of appeals (bearing No. 30, 31, 56, 57, 75, 76 & 77 of 2020) filed by the appellant/complainant (Sh. Ashok Kumar Parjapat) held in Paras 10 to "10. The appellant claims to be a whistleblower and at the same time, if the drivers and conductors are not ready to eradicate their habit of smoking in the buses, despite orders having been passed by this Commission to their competent authorities to get the said practice stopped and if, on account of that reason, the appellant is repeatedly filing the consumer complaints, in the capacity of consumer, on accrual of fresh cause of action, then the District Commission fell into a grave error in dismissing the consumer complaints, holding that he is repeatedly filing consumer complaints or that he is in a habit of filing the same. Simply put, whistle blowing is uncovering information or activity that is deemed illegal or unethical or we can say a person who informs on someone engaged in illegal activities. The respondents have performed their duties capriciously, as a result whereof there has been no change in the system. The respondents (Department) acted like a silent and moot spectator and are allowing such like things to happen. The appellant being a whistleblower can be said to be one of the important pillars of the country, who uncovers such like practices, other illegal activities etc. These acts of misconduct can range from minor issues to more severe. Regardless of their severity, raising concerns about these activities plays an important role in bringing people to justice and preventing further human and corporate disasters. As such, the appellant needs to be suitably compensated.
12........It may be stated here that it is a known fact that tobacco is one of the biggest health threats, the world has ever faced. It kills more than millions of people every year around the county and majority of deaths are due to the result of direct tobacco use and remaining are the result of non-smokers being exposed to second-hand smoke. Cigarette/bidi smoking harms nearly every organ of the body; causes many diseases and reduces the health of smokers in general. Smoking is dangerous, not only for the person holding the cigarette, but also for the people who share their environment.
13. Secondhand smoke or passive smoking is a serious health risk for both those who smoke and those who do not. The people who are regularly around environmental tobacco also known as secondhand smoke have an increased risk of cancer because tobacco products and smoke have many chemicals that damage DNA. Further, the secondhand smoke may also increase the risk of breast cancer, nasal sinus cavity cancer and nasopharyngeal cancer in adults and the risk of leukemia and brain tumors in children. Secondhand smoke is associated with disease and premature death in nonsmoking adults and children. Exposure to secondhand smoke irritates the airways and have immediate harmful effects on a person's heart and blood vessels, which increases the risk of heart disease by 25% to 30% and of stroke by 20% to 30%. We may further add here that secondhand smoke is especially dangerous for unborn babies as smoking during pregnancy increases the risk of infant mortality, premature delivery, and babies with low birth weight. Smoking around infants and children has also been linked to sudden death syndrome and to a rise in respiratory illnesses, including an increased risk of developing asthma and an increase in the symptoms of asthma in children who already have the disease. Further the negative effects of smoking in public carry over into other people's lives with a tangible, measurable, and sometimes permanent impact.
15. A Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986, urged the member States of WHO to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco. This Resolution was reiterated by the WHO in its 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990. Impressed by the above said Resolution of the WHO, the legislature have enacted The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short the COTPA, 2003), which came into force w.e.f. 18.05.2003, with the object to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. It's Section 4 completely prohibits smoking in a public place, relevant part of which is reproduced hereunder:-
"4. Prohibition of smoking in a public place.-No person shall smoke in any public place: Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made."........"
12. Summing up all, the only way to protect our friends and families from secondhand smoke is to keep the environment around them smoke free. Most secondhand smoke is invisible and odourless, so no matter how careful you think you're being, people around you still breathe in the harmful poisons. The ill-effects of second-hand smoke can be equally detrimental to the health of a person who happens to be present near the smoker, particularly in young children, adolescents and women. Passive smoking involves inhaling toxic components and various carcinogens and also contagious viruses, which are present in secondhand smoke. Therefore, in our concerted view, the view held by the District Commission that the Consumer Commissions have little role to pay in eradicating such social evils, is not acceptable. The very purpose of setting up of Consumer Fora is to provide better protection of the interests of consumers. Thus, in this view of the matter, it is held that the orders impugned, passed by the District Commission, in this regard, being perverse, needs to be reversed and accordingly are set aside.
13. For the reasons recorded above, all appeals bearing Nos.55, 98, 99 and 100 of 2021 filed by the appellant/complainant are partly accepted and impugned orders are set aside. The opposite parties/respondents, in each case (four appeals), are jointly and severally directed to pay Rs.5,000/- each, in lump-sum, as compensation and cost of litigation, to the complainant/appellant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amount, in each case (four appeals), shall carry penal interest @9% p.a. from the date of filing of the respective consumer complaints before the District Commission, till realization. It is made clear that Rs.5,000/- aforesaid has to be paid to the appellant/complainant in each case (four appeals).
14. The respondents/opposite parties, jointly and severally, in all the aforesaid four appeals are also directed to pay the amount of Rs.20,000/-, each, to the PGIMER, Chandigarh, which shall further be deposited in the Poor Patient Welfare Fund (PPWF) maintained by PGIMER, Chandigarh for treatment of cancer patients. It is made clear that Rs.20,000/- aforesaid has to be paid to the PGIMER, Chandigarh, in each case (four appeals), which shall be used by the PGIMER for treatment and care of cancer patients.
15. Director General, Haryana State Transport is directed to confirm within 30 days, from the date of receipt of certified copy of this order, the steps taken to stop smoking at public places, state buses, bus stands in Haryana, in compliance to the Supreme Court directions in Murli S. Deora Vs. Union of India and Ors. case (supra), The Cigarettes and Other Tobacco Products Act 2003 and guidelines for implementation thereof.
16. Certified copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected files.
17. The files be consigned to Record Room, after completion.
Pronounced 12.04.2022.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad