Sayed Mohammed Ali Hussaini Vs. the State of Andhra Pradesh and Others - Court Judgment

Excerpt:
(i) constitution - maintainability of petition - article 226 of constitution of india - writ petition filed by principal of institution against two persons for mismanagement of institution - petitioner not impleaded both persons as parties willfully and deliberately - petitioner not approaching with clean hands - held, petition not maintainable on ground of non joinder of necessary parties. (ii) locus standi - article 226 of constitution of india - writ petition filed by petitioner for shifting of premises of institution - request of petitioner without any authority and justification - held, petitioner has no locus standi to seek shifting of educational institution to some other premises and petition not sustainable. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - knowing fully well that even though the above affected persons were necessary parties, he had not made them parties deliberately and wilfully. further, should the statutory authorities feel that the management has failed to take appropriate care with regard to the premises in which the educational institution is being run, then it is for that statutory authority to look into the matter and take appropriate action.order1. when the review petition came up, the learned counsel for the writ petitioner, mr. mirza munawwar ah baig, mr. s. satyanarayana prasad, who filed the writ appeal by seeking leave of the court and also the learned government pleader for education, have represented that the writ petition itself can be heard and disposed of on merits. as such, we have taken up the writ petition itself.2. this is a glaring case of abuse of process of this court by invoking art. 226 of the constitution of india. the sole complaint is against two persons, namely, syed ghouse mohiuddin quadri and dr. syed tajuddin quadri, who are the sons of late syed shah qadar mohiuddin quadri saheb. the said syed shah qader mohiuddin quadri saheb was the founder of the institution in question, namely, a.k.m. oriental college at kachiguda, hyderabad. the same was founded in the year 1966 and was endowed and it became a wakf property governed by the provisions of wakf act, 1954. the said founder and endower died during the year 1967 leaving behind him two sons, namely, syed ghouse mohiuddin quadri and dr. syed tajuddin quadri who constitute the management. it is the allegation of the writ petitioner who is the principal, employed by the said management, that there was gross mismanagement on the part of the said management comprising the said two individuals, namely, syed ghouse mohiuddin quadri and dr. syed tajuddin quadri. it is alleged that they had not only mismanaged the institution, but had also harassed the staff, both teaching and non-teaching, including the writ petitioner, that they did not take care of basic amenities, like electricity, water and that the premises where the educational institution is being run is quite unsafe, particularly, for lady students coming for evening session. it is also his complaint that his salary even though due and payable to him was unjustly withheld particularly for the period from 1-9-1991 onwards. having made such an accusation of very serious nature, including that of misappropriation, the writ petitioner had wilfully and deliberately not impleaded the above two persons as parties to the writ petition, obviously for getting adjudication and obtaining orders condemning them behind their back. such an attitude of a party approaching this court under art. 226 of the constitution of india should be highly deprecated and that can be the sole ground for dismissal of the writ petition for non-joinder of necessary parties. when the party seeks an equitable relief from this court and particularly, under article 226 of the constitution of india, the said party should come with clean hands. we have to say emphatically that the writ petitioner has not approached this court with lean hands. knowing fully well that even though the above affected persons were necessary parties, he had not made them parties deliberately and wilfully. this writ petition is liable to be dismissed on the sole ground of non-joinder of necessary parlies.3. that apart, even on merits, there is absolutely no cause for ventilating grievance of the writ petitioner in the writ petition in the manner it is framed. if there is any mismanagement, there is ample power in the statutory authorities, be it under the a.p. education act or wakf act, 1954 to enquire into the matter and take appropriate action. it is not the case of the writ petitioner that there is negligence on the part of the said authorities in concluding the disciplinary proceedings which have been initiated against the above two persons constituting the management.4. in fact, it is the case of the writ petitioner that pursuant to the complaint made, an enquiry officer was appointed and he had conducted enquiry and submitted enquiry report and because of the orders passed by this court staying the said proceedings, further action is kept in abeyance. as such, the allegation with regard to the mismanagement cannot be the subject-matter in these proceedings.5. from the two reliefs which are sought for in this writ petition, namely, (1) to shift the educational institution from the present premises at kachiguda and (2) to pay the salaries for the period from 1-9-1991 onwards to the petitioner, it has to be held that in so far as the first relief is concerned, the writ petitioner is nobody and has got absolutely no locus standi to seek for the shifting of the educational institution to some other premises. it is none of the concern of the writ petitioner to seek for such a shifting. he is after all, a principal under the management and it is for the management to look into such bigger aspects. further, should the statutory authorities feel that the management has failed to take appropriate care with regard to the premises in which the educational institution is being run, then it is for that statutory authority to look into the matter and take appropriate action. the writ petitioner cannot claim to be more loyal than the king. in fact, he has over stepped his authority in seeking shifting of the educational institution to some other premises and it is an act of indiscipline on his part to invoke such an action. it seems that he is emboldened by an authorisation given to him by the director of higher education through his proceedings in rc. no.259/dc5-l/89 dated 7-3-1989, which were to the effect of drawing salary and paying to himself and also to other staff members in view of the dispute with regard to the management which is pending adjudication under section 11 of a.p. (telengana area) public societies registration act, 1357 fasli, by that reason there was no authority or delegation to the writ petitioner to seek transfer of the premises. his request in that regard was wholly without any authority and the same is without any justification. we cannot countenance the argument in favour of the writ petitioner on that issue.6. coming to the second issue, namely, claim of salaries and complaint with regard to the same, we are now apprised of the real situation by mr. d. sudharshana reddy, learned government pleader for education, to the effect that disciplinary proceedings have been initiated against the writ petitioner for misconduct and enumerated some charges, which are placed before us. it is stated that a shpw cause notice was issued to the writ petitioner, and that the petitioner had also filed his reply. it is also admitted by mr. mirza munawwar ah baig, the learned counsel for the petitioner. if that be so, the desciplinary authority concerned, namely, regional joint director of higher education, hyderabad, shall conduct an enquiry and conclude the said proceedings positively within a period of one month from the date of receipt of this order. for avoiding delay, we direct the writ petitioner and also dr. syed tajuddin quadri, to be present before the said regional joint director, hyderabad on 1st september, 1992 and participate in the enquiry which shall be held day to day.7. in the circumstances, no relief can be granted as sought for by the writ petitioner except giving a direction which we have issued to the regional joint director, hyderabad mentioned supra.8. in as much as the regional joint director is not a party to the writ petition, the registry is directed to communicate immediately copy of this order to the said regional joint director, higher education, whose office said to be situated at nampally, opposite to latha theatre, gandhi bhavan road.9. accordingly, the writ petition is dismissed subject to the above observations and directions. no costs.10. petition dismissed.

Judgment:
ORDER

1. When the Review Petition came up, the learned counsel for the Writ Petitioner, Mr. Mirza Munawwar AH Baig, Mr. S. Satyanarayana Prasad, who filed the Writ Appeal by seeking leave of the Court and also the learned Government Pleader for Education, have represented that the Writ Petition itself can be heard and disposed of on merits. As such, we have taken up the Writ Petition itself.

2. This is a glaring case of abuse of process of this Court by invoking Art. 226 of the Constitution of India. The sole complaint is against two persons, namely, Syed Ghouse Mohiuddin Quadri and Dr. Syed Tajuddin Quadri, who are the sons of Late Syed Shah Qadar Mohiuddin Quadri Saheb. The said Syed Shah Qader Mohiuddin Quadri Saheb was the founder of the institution in question, namely, A.K.M. Oriental College at Kachiguda, Hyderabad. The same was founded in the year 1966 and was endowed and it became a Wakf property governed by the provisions of Wakf Act, 1954. The said founder and endower died during the year 1967 leaving behind him two sons, namely, Syed Ghouse Mohiuddin Quadri and Dr. Syed Tajuddin Quadri who constitute the management. It is the allegation of the Writ Petitioner who is the Principal, employed by the said management, that there was gross mismanagement on the part of the said management comprising the said two individuals, namely, Syed Ghouse Mohiuddin Quadri and Dr. Syed Tajuddin Quadri. It is alleged that they had not only mismanaged the institution, but had also harassed the staff, both teaching and non-teaching, including the Writ Petitioner, that they did not take care of basic amenities, like electricity, water and that the Premises where the Educational Institution is being run is quite unsafe, particularly, for lady students coming for evening session. It is also his complaint that his salary even though due and payable to him was unjustly withheld particularly for the period from 1-9-1991 onwards. Having made such an accusation of very serious nature, including that of misappropriation, the Writ Petitioner had wilfully and deliberately not impleaded the above two persons as parties to the Writ Petition, obviously for getting adjudication and obtaining orders condemning them behind their back. Such an attitude of a party approaching this Court under Art. 226 of the Constitution of India should be highly deprecated and that can be the sole ground for dismissal of the Writ Petition for non-joinder of necessary parties. When the party seeks an equitable relief from this Court and particularly, under Article 226 of the Constitution of India, the said party should come with clean hands. We have to say emphatically that the Writ Petitioner has not approached this Court with lean hands. Knowing fully well that even though the above affected persons were necessary parties, he had not made them parties deliberately and wilfully. This Writ Petition is liable to be dismissed on the sole ground of non-joinder of necessary parlies.

3. That apart, even on merits, there is absolutely no cause for ventilating grievance of the Writ Petitioner in the Writ Petition in the manner it is framed. If there is any mismanagement, there is ample power in the Statutory Authorities, be it under the A.P. Education Act or Wakf Act, 1954 to enquire into the matter and take appropriate action. It is not the case of the Writ Petitioner that there is negligence on the part of the said Authorities in concluding the disciplinary proceedings which have been initiated against the above two persons constituting the management.

4. In fact, it is the case of the Writ Petitioner that pursuant to the complaint made, an Enquiry Officer was appointed and he had conducted enquiry and submitted Enquiry Report and because of the orders passed by this Court staying the said proceedings, further action is kept in abeyance. As such, the allegation with regard to the mismanagement cannot be the subject-matter in these proceedings.

5. From the two reliefs which are sought for in this Writ Petition, namely, (1) to shift the Educational Institution from the present premises at Kachiguda and (2) to pay the salaries for the period from 1-9-1991 onwards to the petitioner, it has to be held that in so far as the first relief is concerned, the Writ Petitioner is nobody and has got absolutely no locus standi to seek for the shifting of the Educational Institution to some other premises. It is none of the concern of the Writ petitioner to seek for such a shifting. He is after all, a Principal under the management and it is for the management to look into such bigger aspects. Further, should the statutory Authorities feel that the management has failed to take appropriate care with regard to the premises in which the Educational Institution is being run, then it is for that Statutory authority to look into the matter and take appropriate action. The Writ Petitioner cannot claim to be more loyal than the King. In fact, he has over stepped his authority in seeking shifting of the Educational Institution to some other premises and it is an act of indiscipline on his part to invoke such an action. It seems that he is emboldened by an authorisation given to him by the Director of Higher Education through his proceedings in Rc. No.259/DC5-l/89 dated 7-3-1989, which were to the effect of drawing salary and paying to himself and also to other staff members in view of the dispute with regard to the management which is pending adjudication under Section 11 of A.P. (Telengana Area) Public Societies Registration Act, 1357 Fasli, By that reason there was no authority or delegation to the Writ Petitioner to seek transfer of the premises. His request in that regard was wholly without any authority and the same is without any justification. We cannot countenance the argument in favour of the Writ Petitioner on that issue.

6. Coming to the second issue, namely, claim of salaries and complaint with regard to the same, we are now apprised of the real situation by Mr. D. Sudharshana Reddy, learned Government Pleader for Education, to the effect that disciplinary proceedings have been initiated against the Writ petitioner for misconduct and enumerated some charges, which are placed before us. It is stated that a shpw cause notice was issued to the Writ Petitioner, and that the petitioner had also filed his reply. It is also admitted by Mr. Mirza Munawwar AH Baig, the learned counsel for the petitioner. If that be so, the desciplinary authority concerned, namely, Regional Joint Director of Higher Education, Hyderabad, shall conduct an enquiry and conclude the said proceedings positively within a period of one month from the date of receipt of this order. For avoiding delay, we direct the Writ Petitioner and also Dr. Syed Tajuddin Quadri, to be present before the said Regional Joint Director, Hyderabad on 1st September, 1992 and participate in the enquiry which shall be held day to day.

7. In the circumstances, no relief can be granted as sought for by the Writ Petitioner except giving a direction which we have issued to the Regional Joint Director, Hyderabad mentioned supra.

8. In as much as the Regional Joint Director is not a party to the Writ Petition, the Registry is directed to communicate immediately copy of this order to the said Regional Joint Director, Higher Education, whose office said to be situated at Nampally, opposite to Latha Theatre, Gandhi Bhavan Road.

9. Accordingly, the Writ Petition is dismissed subject to the above observations and directions. No costs.

10. Petition dismissed.