By S A Ishaqui
Hyderabad, Nov 8 :The Andhra Pradesh High Court on Thursday declared that the appointment of Madhavan commission by the BCCI to conduct inquiry into match fixing allegations against the former skipper of Indian cricket team and Lok Sabha member Mohammed
Azharuddin as illegal.
Full text of the judgment follows ----
HONOURABLE SRI JUSTICE
ASHUTOSH MOHUNTA
AND
HONOURABLE SRI JUSTICE
G. KRISHNA MOHAN REDDY
C.C.C.A.No.
408 OF 2003
DATED
8th November,
2012
BETWEEN
Mohammed Azharuddin
…..Appellant
And
The
Board of Control for Cricket in India
Through
its Secretary, having its office at
Brabourne Statidum, Fort Area,
Mumbai, Maharashtra
And
ors
….Respondents.
HONOURABLE
SRI JUSTICE ASHUTOSH MOHUNTA
AND
HONOURABLE SRI JUSTICE
G. KRISHNA MOHAN REDDY
C.C.C.A.No.
408 OF 2003
JUDGMENT:
1. Mohammed Azharuddin,
the appellant herein, was highly reputed cricket player. It is well known to
all the cricket loving public as well as general public that MohammedAzharuddin was
an outstanding cricketer (player as well as Captain of Indian Team) who held an
excellent record in both Test and One-day International (ODI) limited overs game
cricket matches.
2. In
and around 2000, there had been media reports making allegations of under
performance, match fixing betting, accepting gifts etc., against several
Cricket Players including foreign players. Taking innumerable
reports that had come in both print and electronic media making allegations as
stated supra against several Cricket players, the then Secretary, Ministry of
Culture, Youth Affairs and Sports, Government of India, took cognizance of
those reports and asked the Central Bureau of Investigation (for short ‘the
CBI’) to collect and evaluate various news items and information so published
in that regard and thereafter, conduct an enquiry into those allegations which
was done. On
the request of the Ministry of Culture Youth Affairs and Sports Union of India,
the BCCI (first respondent herein) thereafter initiated preliminary enquiry appointing
the second respondent as its Commissioner in regard thereto. Ultimately, at the
culmination of the enquiry and submitting report, The BCCI/first respondent
passed its order dated 05.12.2000, imposing punishment against the appellant,
which inter alia reads
to the following effect:
“ORDER
OF THE DISCIPLINARY COMMITTEEE OF BOARD OF CONTROL FOR CRICKET IN INIDA PASSED
AT THE MEETING HELD ON 5TH DECEMBER
2000 AT CHENNAI:
Mr. Mohd. Azharuddin:
The
CBI has submitted a Report titled “Report on Cricket Match Fixing & Related
Mal Practices” in October, 2000. The Board of Control for Crikcet in
India (BCCI) had referred the matter to its Commissioner, Mr.K.Madhavan to
make an appropriate enquiry. During Mr. Madhavan’s further
enquiry he gave opportunities to Mr.Azharuddin to
give his explanations to him which he did in the form of a signed statement.
Subsequently Mr.Madhavan submitted
his report.
Mr.Mohd. Azharuddin was
given a notice to appear before the Disciplinary Committee of the Board on
28.11.2000 at Hotel Taj Mahal, Mansingh Road, New
Delhi. At the said hearing, on 28.11.2000, Mr.Azharuddin haded over
a letter dt.
28.11.2000 addressed to the Chairman of the Disciplinary Committee. Dr.A.C.Muthaiah,
the contents of the said letter is reproduced below:
‘Kindly
refer to your letter dated 24.11.2000. I wish to say that I fully cooperated
with the enquiry conducted by Shri Madhavan,
commissioner appointed by the BCCI. He recorded my statement in minute details.
I had specifically denied the allegations about Cricket Match Fixing and allied
matters in their totality. I had no connection with any person outside the
cricket fraternity.
As
far as my knowledge goes, no cricket player indulged in match fixing.
I
am under great strain because in addition to the enquiry by the BCCI, separate
enquiries/investigations by the Income Tax, Directorate of Enforcement have
been launched against me without any basis.
I
have served the BCCI and my country with distinction. I am confident that
having regard to my excellent and outstanding performance as a captain and as a
player, BCCI would do full justice to me.’
The
submissions made by Mr.Azharuddin as
above was given due consideration. It was put to Mr.Azharuddin whether
he is aware that if he is found guilty in the proceedings before the
Disciplinary Committee then an appropriate action could be taken against him
for which he
had answered in the affirmative.
Thereafter,
the proceedings were recorded and signed by all the members of the Disciplinary
Committee and also by Mr.Azharuddin and
point-3 of the proceedings of the Disciplinary Committee Meeting held on 28th November
2000 is reproduced below:
‘Clause-3. On
being asked whether he had anything further to add by way of explanations
regarding the allegations as mentioned in the aforesaid reports., he stated
that he had brought with him a letter dated November 28,2000, addressed to the
President, BCCI. He handed it over to the Committee. Copy thereof is enclosed
as Annexure to these proceedings. He stated that he had mentioned in the said
letter what he wants to submit before the Committee and has nothing further to
add except that he innocent he is hopeful that the Committee and BCCI would do
full justice to him’.
The
Disciplinary Committee has carefully considered the facts and the findings of
the Report of the Commissioner arrived at on a consideration of the Report of
the CBI as well as the statements/submissions made by Mr.Azharuddi before
the Commissioner and also the statements/submissions made by him at the hearing
on 28.11.2000 before the Disciplinary Committee. The Commissioner’s Report has
correctly dealt with these aspects and has held that the explanations given by Mr.Azharuddin are
unacceptable to him for the reasons given in his report.
The
Disciplinary Committee has considered the entire matter and the explanations
and the oral submissions made by Mr.Azharuddin and
are unable to accept the same. After having given anxious consideration to the
entire matter and on the basis of the statements/submissions made by Mr.Azharuddin before
the Disciplinary Committee, Report of the Commissioner which also considered
the Report of the CBI, the Disciplinary Committee is also of the opinion that Mr.Azharuddin is
guilty as found by the Commissioner.
After
due deliberation and keeping in mind the interest of the future of the Indian
Cricket, the Members of the Disciplinary Committee present have unanimously
taken the decision as follows:
i) He
had close contacts and nexus with bookies/punters like M.K.Gupta,
Ajay Gupta, Gyan Gupta and Ameesh Gupta
etc., and was involved in match fixing.
ii) He
is guilty of unbecoming conduct and misconduct as a national level player in maintaining
such frequent contacts with bookies/punters.
iii) In
his case, the misconduct is aggravated, as he was the Captain of the Indian
Team for long and let down the country and the cricket loving public in a
despicable manner.
The
Disciplinary Committee is of the considered opinion that Mr.Azharuddin has
conducted himself in a manner which is prejudicial to the interests of the game
of cricket, more particularly as a Captain of the Indian Team.
In
taking its decision the Disciplinary Committee has also kept in mind the
contributions made by Mr.Azharuddin to
the game of cricket.
After
due deliberation and keeping in mind the interest of the future of the Indian
Cricket the Members of the Disciplinary Committee present have unanimously
taken the decision as follows:
“ Mr.Mohd. Azharuddin be
debarred from playing any cricket matches conducted or authorized by ICC/BCCI
or affiliated associations and also debarred from holding any position in
ICC/BCCI or any of its affiliated associations, for life commencing from 5th December,
2000. He will also be not eligible for any Benefit Matches allotted/conducted
by the BCCI or its affiliated members and BCCI’s contribution
to his Benevolent Fund accrued as of today, will
be forfeited with effect from 5th December,
2000.’
Sd/
K.M.
Ram Prasad Sd/ Dr.A.C.Muthaiah
Member-Disciplinary
Committee Chairman-Disciplinary Committee
Dated 5th December, 2000
Chennai.”
3. Aggrieved
by the aforesaid order inflicting the punishment upon him, Mohammed Azharuddin/appellant
preferred O.S.No.10 of 2001 on the file of the learned II Additional Chief
Judge, City
Civil Court, Hyderabad.
4. For
the sake of convenience, the parties herein are referred to as arrayed in the
suit.
5. The
suit was instituted by the plaintiff inter alia seeking
the following reliefs:
a) to declare a portion
of Rule 38(ii) of the Rules and Regulations of the Board of Control for Cricket
in India (for short ‘the Board’) after it severance to the extent which
precludes and prohibits the plaintiff from calling into question the action
taken by the Committee as a result of an inquiry under the Rule, in any court
of law as bad and illegal;
b) to declare the appointment
of the defendant 2 and the report drawn up by him as null and void, ultra vires and contrary
to the established procedure;
c) to declare the
proceedings of defendant 1/Board dated 05.12.2000 inflicting thereunder punishment
and imposition of life ban on the plaintiff, which was duly communicated by the
Secretary through his letter dated 11.12.2000, as null and void being contrary
to the Rules and Regulations of the Board and violative of
the principles of natural justice;
d) to declare that the
plaintiff be permitted to play cricket during his life time for the Indian
National Team and such other teams and shall be entitled to all retirement
benefits as an international cricketer is entitled to in India and to permit
him to hold any such position as may be available or as may be considered in
the Board or the ICC; and
e) to issue
a perpetual and permanent injunction restraining the defendants in any way
either interfering or restricting the cricketing career of the plaintiff
directly or indirectly.
6.(a) It
is averred in the plaint that the plaintiff is a law-abiding citizen. Owing to
excellent performance in cricket, he was selected to represent Indian National
Team in Cricket Test match series against England in
the year 1984-85. On
his debut itself, he created a world record by scoring three centuries in a row
in three tests (a record which is still holding the field). He had also held
many other records under his cap. It is further averred that considering his
excellent performance, he was selected as the Captain of the Indian National
Team in which capacity he represented the country in several test and one day
international cricket matches, the details of which, though mentioned in detail
in the plaint, are not really necessary for us to adjudicate the controversies
involved in this appeal.
6.(b) At
the outset, it is pertinent to notice as to the cause for the institution of
the subject suit before the Court below which was in view of the innumerable
reports that had come in both the print and electronic media making allegations
of under performance, match fixing, betting, accepting gifts, etc. against
several Cricket players, which the Secretary, Ministry of Culture, Youth
Affairs and Sports, Government of India, took cognizance of leading
to take cognizance and ask the CBI to collect and evaluate various news items
and information so published in that regard and thereafter, conduct an enquiry
into those allegations. Ultimately, at the culmination of the enquiry, the
punishment in question was inflicted upon the plaintiff, which was inter alia assailed
before the Court below under the subject suit.
6.(c). It
is pleaded that the defendant 1 being the Board is a society registered at
Madras (Chennai) on 28.11.1940 under the provisions of the Societies
Registration Act, 1860 which
is required to be administered/governed in accordance with its memorandum and
Rules and Regulations as last amended at the Special General Meeting held on
15.08.1994 at Udaipur.
Any action on the part of the Board which is not in consonance with its
memorandum and Rules and Regulations is illegal. It is also specifically
pleaded that the relationship between the plaintiff and defendant 1/Board is in
the nature of a service contract and that the principles and procedure laid
down by the Supreme Court with regard to initiation, conduct, conclusion,
issuance of show cause notices, charge memos and imposition of punishment in
disciplinary proceedings, etc. also govern and apply to the disciplinary proceedings
of the Board.
6.(d) It
is further pleaded that defendant 3 for the Board appointed the defendant 2, a
practicing Advocate and its
client, who in fact was not qualified to conduct the enquiry was appointed as
the Commissioner in gross violation of its Rules and Regulations inasmuch as
they do not stipulate any specific provision to do so whereby such action on
the part of the Board being
in flagrant violation of its own Rules and Regulations is illegal, arbitrary
and ex
facie sheer
consequence of the biased attitude of the defendant 3 against the plaintiff.
The Board did not disclose its intention of appointing a Commissioner as no
resolution was passed to that effect. Apart from that the disciplinary
committee with three members alone was competent to conduct such proceedings as
clearly envisaged under Rule 38 of the Rules and Regulations of the Board. It
is claimed that the preliminary enquiry ( for short ‘PE’) initiated
on the request of the Ministry of Culture Youth Affairs and Sports was merely
an internal enquiry which was conducted by the CBI initially to satisfy itself
and see as to whether any cognizable offence for the registration of a regular
case (for short, ‘RC’) was made out or not whereby the PE report works out to
be just
aprima facie personal
opinion of the CBI which could not be the basis for inflicting the punishment
etc. It is also claimed that as the PE was an exercise, which was conducted by
the CBI prior to the registration of RC, it cannot be said to be a one conducted
under the provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.),
by reason of which, statements if any recorded during the PE can, at best, be
termed as previous statements on which no reliance can legally be placed.
6.(e) It
is further pleaded that the Investigating Officer CBI forwarded its PE report
to the Ministry of Culture Youth Affairs and Sports, Government of India, who
forwarded it to the Board. It is emphasised that the contents of the report do
not disclose commission of any offence under the provisions of the Indian Penal
Code (IPC) or Public
Gambling Act.
6.(f) It
is also claimed that the defendants did not supply copies of the statements
allegedly given by various witnesses before the CBI during the PE but directed
the plaintiff to appear before the defendant 2 at Chennai. However, in order to
co-operate with the enquiry, the plaintiff agreed to and appeared before the
defendant 2 at Hyderabad and
denied the baseless allegations levelled against him both in the media and in
the PE.
It is alleged that the enquiry conducted by the defendant 2 in any case was not
transparent, fair and independent, as he did not call or examine any witness
who gave statement against him in his presence, apart from which at the end even
before the plaintiff could make his presence before him on
the summons sent by him, he announced the date of submission of his report to
the Board, which indicates that the enquiry was a sham and mere formality which
was done just with the motive of seeing that the plaintiff should be punished. In
addition to that the defendant 2 placed reliance upon the PE report and the
statements which were in fact not recorded before him only for the purpose of
finding or holding the plaintiff as guilty, illegally and in violation of the
principles of natural justice or established procedure prescribed under law in
regard thereto. On the other hand, likewise quite
illegally only two members of the disciplinary committee of the Board solely
relied upon the PE report which was mechanically endorsed by the defendant 2
and issued the proceedings dated 5.12.2000 debarring the plaintiff from playing
cricket matches conducted or authorised by itself or the ICC or its affiliated
associations with effect from 05.12.2000 and also holding any post in those
Bodies in post haste without consulting or referring to the third member of the
disciplinary committee which is borne out by the fact that he did not sign the
proceedings. That apart the Board also forfeited the benevolent fund to be
arranged to the plaintiff.
6.(g). It
is claimed that Rule 38(ii) of the Rules and Regulations of the Board which
prohibited the plaintiff to initiate legal proceedings against the Board
questioning the action taken by it against him is per
se illegal
and not binding on the plaintiff as it has no legal force and is opposed to the
public policy.
6.(h). It
is finally pleaded that no appeal is provided against the report of the
defendant 2 and order dated 05.12.2000. Unless the impugned report and order
are set aside declaring them as illegal, null and void and ultra vires,
the plaintiff will suffer irreparable loss and injury. He
claims that he has no efficacious alternative remedy than instituting the
present suit in order to seek justice.
7.
(a) The
Defendant 1/the Board, filed its written statement specifically denying all the
material averments made which inter alia reads
to the following effect:
7.(b). It
is stated that the suit filed by the plaintiff is not maintainable either in
law or on the facts of the case for want of misjoinder and/or
non-joinder of parties. The Court below has no territorial jurisdiction to
entertain and try the suit as no part of the cause of action has arisen within
its jurisdiction. It is further pleaded that the entire suit is based on
vexatious, wrongful and unsustainable contentions by reason of which it is
liable to be rejected in limine with
exemplary costs. It
is further claimed that the suit is also liable to be dismissed on the ground
of improper valuation and improper payment of court fee.
7.(c). It
is claimed further that the Board is an autonomous and independent body
registered in accordance with the provisions of Tamil Nadu Societies
Registration Act, 1860 and its actions are guided by its own constitution. It
is claimed that the Board can initiate domestic enquiry in accordance with its
Rules and Regulations subject to the compliance of the principles of natural
justice, equity and fair play, but the findings and/or decisions of the
domestic body cannot be superseded by a Court of law through a judicial
scrutiny.
7.(d). It
is specifically denied that the relationship between the plaintiff and
defendant 1 is in the nature of a service contract. It is specifically pleaded
that there is a contractual obligation between cricket players and the Board whereas the
players by virtue of the provisions of Rule 10 of its Rules and Regulations
would fall within the jurisdiction of the Board. The Rules and Regulations of
the Board are not violative of
any public policy and not prima facie illegal. They are exhaustive in nature
and provide each and every modality with regard to initiation, conduct,
conclusion, imposition of punishment, etc., in the matter of disciplinary
proceedings initiated by the Board to which the plaintiff had submitted
himself. The plaintiff having accepted the Rules and Regulations of the Board
is estopped from
making any effort to wriggle out of the proceedings. It is specifically denied
that though the defendant 2 got no qualification was appointed as the
Commissioner illegally beyond the ambit of and in flagrant violation of its
rules and regulations asserting that in fact his appointment was proper and
legal. It is also specifically claimed that the enquiry was a sham and mere
formality intended to implicate the plaintiff and impose punishment upon them. It
is also pleaded that even though the enquiry does not disclose the commission
of any offence under the provisions of IPC or any other statute, still as the
facts clearly disclose the commission of misconduct by the plaintiff, the
domestic body like the defendant 1 is statutorily entitled to take appropriate
disciplinary action within the framework of its own Rules and Regulations.
7.(e) It
is also specifically denied that the plaintiff was not supplied with the copies
of the statements of the witnesses examined during the enquiry conducted by the
CBI and that the report of the CBI is baseless and incorrect. It is claimed
that on the specific request of the plaintiff, he was supplied with a full copy
of the report of the CBI, the receipt of which was duly acknowledged by the
plaintiff following which only the plaintiff appeared before the defendant 2
during the enquiry and submitted 27 pages statements which are on record. It is
claimed that every statement made by the plaintiff was recorded in the presence
of defendant 2 and was signed by him. It is also claimed that though the
plaintiff was given opportunity to examine any witness or witnesses with a view
to avoid recording of corroborating evidence against him, he wilfully had
chosen not to call for any evidence being addressed or any witness being
examined. It is stated that the plaintiff was initially asked to appear before the defendant 2
at New
Delhi but
at the behest of the plaintiff and to afford complete and reasonable
opportunity, the domestic enquiry was conducted at Hyderabad which
is the place of residence of the plaintiff.
7.(f). It
is also claimed that the plaintiff expressed his satisfaction and gratitude for
the courtesy extended to him during the course of entire enquiry. It is
therefore denied that the enquiry proceedings are void ab initio or
illegal or violative in
the eye of law while pleading that it has been sufficiently established that
the plaintiff was guilty of gross misconduct. It is therefore pleaded that the
whole and sole motive on the part of the plaintiff in making false allegations
in the plaint is to mislead the Court suppressing the material facts.
7.(g). It
is claimed further that the CBI report was duly considered with open mind and
independently. The ultimate decision was arrived at only after due
consideration of all aspects that came to light which substantially proved that
the plaintiff was guilty of gross misconduct. It is further claimed that the
decision was taken and the punishment was imposed upon the plaintiff in
accordance with the provisions of the Rules and Regulations of the Board legally
and validly. It
is specifically denied that there was non-application of mind or that there was
mechanical or erroneous conclusion or that the plaintiff was subjected to harsh
punishment. While
denying that the decision of the defendant 3 was marked by mala fide intentions,
it is claimed that it is totally immaterial whether the third Member of the
disciplinary committee was present during the course of hearing or not. It is
claimed that the plaintiff has no cause of action to file the suit. According
to him it is misconceived, illegal, wrongful and based on utter false and
misleading pleadings to entertain it.
7.(h). It
is further claimed that the defendant 2 submitted his report dated 05.12.2000
to the first defendant / Board at Chennai. On
the other hand CBI report was made and published at New Delhi; Infact except
the mere hearing afforded to the plaintiff at Hyderabad, no event whatsoever
bearing on the subject matter of the suit took place within the jurisdiction of
the Court below; by reason of which also the suit is not maintainable on the
ground of lack of territorial jurisdiction. It
is therefore prayed ultimately that the suit is liable to be dismissed.
8. The
Defendant 2 and 3 filed separate written
statements which confer with the written statement of the defendant No.1 which
need not be reproduced once again. It is suffice to refer to some important
aspects which the defendant No.2 dealt with directly.
He claimed that no relief could be claimed against him as he just conducted the
enquiry and submitted the report thereon pursuant to his appointment as the
Commissioner in regard thereto. He pleaded that Rule 38(ii) of the Rules and
Regulations of the Board were amended on 29.09.2000 in accordance with which,
only indeed, he conducted the disciplinary proceedings thereafter. With regards
to his eligibility he claims that at the time of his retirement in the year 1992 he was
the Joint Director of CBI, he has got vast experience in doing investigation
and prosecution of cases and also conducting as well as monitoring large number
of departmental enquiries/disciplinary proceedings. Therefore he denies that he
lacked experience in conducting the disciplinary proceedings. It is
specifically claimed by him that the statements of the plaintiff were recorded
in detail affording him proper and necessary opportunity which
is reflected in the correspondence that took place between the plaintiff and
himself, viz. Letters dated 08.11.2000, 10.11.2000, 13.11.2000, 14.11.2000,
15.11.2000, 17.11.2000 etc. His claim is that the plaintiff did question during
the entire enquiry his appointment or jurisdiction to conduct the enquiry;
on the other hand the plaintiff himself sent a fax message dated 17.11.2000 on
his own volition to him expressing his gratitude for the courtesy extended to
him during the enquiry; It is pleaded thereby that only with a view to
prejudice the Court below he
has made false pleas in the plaint. It
is claimed that the CBI which need not record the statements of the witnesses
in the presence of plaintiff supplied those statements to the plaintiff in toto as required
by law. It
is therefore denied that the plaintiff was not given full and complete
opportunity to make use of those statements for the cross examination of
witnesses at the time of enquiry. On the other hand the defendant 2 is
objective in preparing his report.
9. On
the basis of these pleadings, the Court below framed the following issues for
adjudication:
“1. Whether
the appointment of second defendant as Commissioner under the proceedings dated
29.08.2000 is valid?
2. Whether
the first defendant had inherent power to appoint Commissioner for conducting
enquiry?
3. Whether
the second defendant is incompetent and unqualified for being appointed as
Commissioner by the first defendant?
4. Whether
the enquiry conducted by defendant No.2 is not legal and valid on the several
grounds alleged in the plaint?
5. Whether
the allegation of match fixing against plaintiff is not proved?
6. Whether
the first defendant had not followed the procedure prescribed by its bye-laws
and the principles of natural justice and, if so, its order dated 05.12.2000 is
not valid?
7. Whether
this Court has no territorial jurisdiction?
8. Whether
the plaintiff is entitled for the declarations prayed for?
9. To
what relief?”
10. In
support of the claim of the plaintiff, he got examined himself as P.W.1 and got
marked Exs.A.1 to A.3. On behalf of the defendants, one witness was examined as
D.W.1 and got marked Exs.B.1 to B.22.
11. On
a consideration and evaluation of both oral and documentary evidence adduced,
the Court below recorded the findings in respect of all the Issues in favour of
the defendants and ultimately dismissed the suit by its judgment and decree
dated 27.08.2003, whereas assailing that judgment and decree the plaintiff
preferred the present appeal under Section 96 of the Code of Civil Procedure,
1908.
12. Heard
the learned counsel on either side at length. They have drawn our
attention to various case law relied upon by them in support of their
contentions, and perused the voluminous material placed on record.
13. Learned
Counsel for the parties have elaborately advanced arguments inconsonance with
the pleadings made respectively placing reliance upon catena of decisions in
support of their respective claims.
14. As
can be seen from the contentions or arguments urged before us by the learned
counsel on either side at great length, the points that arise for our
consideration and decision in the appeal are as follows:
1) Whether
the Court below has territorial jurisdiction to try the suit
?
2) Whether
the suit is maintainable
(a) by virtue
of rule 38(1) of the Rules and regulations of the Board which prohibit to file
the suit and
(b) by virtue
of non joinder of necessary parties?
3) Whether
the Board got power to appoint the defendant 2 as the Commissioner by the order
dated on 29.08.2000 to conduct the enquiry with regards to any acts of
indiscipline and misconduct of the plaintiff and submit report, in view of Rule
38 of the Rules and Regulations of the Board and hence the appointment is
valid?
4) Whether
the defendant 2 as the Commissioner was competent and qualified to conduct the
enquiry against the plaintiff effectively in the light of the fact that he was
advising the Board as an Advocate on legal issues?
5) Whether
the defendant 2 had followed the rule of principles of natural justice during
the course of entire enquiry?
6) Whether
the defendant 2 had made any independent enquiry to prove the allegations of
match fixing by affording an opportunity to the plaintiff to cross-examine the
concerned witnesses whose statements were relied upon while drawing up his
report dated 24.11.2000?
7) Whether
the impugned order dated 05.12.2000 of the Board passed by only two members
instead of three members of the disciplinary Committee as mandated by Rule 18
of the Rules and Regulations is legal and valid, more particularly in the light
of letter dated 04.12.2000 addressed by the third Member of it to the Board
seeking to fix fresh date for convening the meeting?
8) What
are the effects of the report dated 24.11.2000 of the defendant 2 and the impugned
order dated 05.12.2000 of the Board?
9) Whether
the judgment and decree passed by the Court below are liable to be set aside
consequently?
10) Whether
the plaintiff is entitled to the reliefs prayed
for in the suit?
11) If
so, to what relief?
POINT No.1:
15. It
is the specific plea of the plaintiff in the plaint that the cause of action
arose within the territorial jurisdiction of the Court below in as much as the
defendant 2 had conducted the enquiry proceedings at Hyderabad and that
necessary communications with regards to the subject enquiry including the
service of the impugned order dated 05.12.2000 were sent to his Hyderabad
address, where he was a permanent resident. Therefore, it is the contention of
learned counsel for the plaintiff that the Court below got territorial
jurisdiction to try the suit.
16. The
defendants while claiming at one stage that the Court below got no territorial
jurisdiction have claimed at another stage that the enquiry was conducted at Hyderabadwhich
is the place of permanent resident of the plaintiff. This
makes at categorical that the cause of action to file the suit arose at Hyderabad.
Section 20 CPC which is relevant here enjoins.
17. Thus
by virtue of this provision the Court below got jurisdiction to entertain the
suit as within its local jurisdiction the plaintiff used
to reside and also the enquiry was conducted which would give necessary cause
of action.
POINT No.2:
18. Rule
42 of the Rules and Regulations of the Board is relevant here, it reads to the
following effect:
“42. Suit
by or against the Board:
The
Board shall sue or be sued in the name of the Secretary.”
This Rule appears to be quite
contradictory to the prohibition enshrined in Rule 38(ii) which is to the effect
that the action, if any, taken by the Committee as a result of an enquiry shall
not be called into question in any court of law. Here Section 9 CPC is also
relevant as this provision in fact gives right to the plaintiff to file the
suit. This
section enjoins – the Courts shall subject to the provisions herein contained
have jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred. So by virtue of this
provision everybody will have a right to file suit of civil nature for
readdressing his grievance unless there is a statutory bar to do so.
19. Definitely
this suit filed to redress the grievances of the plaintiff as enunciated is
purely civil in nature. Rule 38(2) will not have any statutory enforcement
independently.
20. In GANGA BAI Vs. VIJAY KUMAR [supra], the Supreme Court, inter alia while dealing with the basic distinction
between the right of suit and right of appeal also dealt with the right of suit
exclusively. This decision in fact clarifies categorically the question raised
in the present context. When every body will have an inherent right to file a
suit to redress his grievance against another or others unless prohibited by
law any provision made against the spirit of that concept cannot be held to be
valid.
On the other hand any precedents laid by the constitutional Courts operate as
law as interpreted which will have statutory force. It is quite unconstitutional to prevent a person
from exercising such right
though infringed quite arbitrarily. In fact the Apex Court held :
“15. It is thus clear that
the appeal filed by Defendants 2 and 3 in the High Court was directed
originally not against any part of the preliminary decree but against a mere
finding recorded by the trial ourt that the partition was not genuine. The main
controversy before us centres round the question
whether that appeal was maintainable. On this question the position seems to us
well established. There is a basic
distinction between the right of suit and the right of appeal. There is an inherent
right in every person to bring a suit of a civil nature and unless the suit is
barred by statute one may, at one’s peril, bring a suit of one’s choice. It is
no answer to a suit, howsoever frivolous to claim, that the law confers no such
right to sue. A suit for its
maintainability requires no authority of law and it is enough that no statute
bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal
inheres in no one and therefore an appeal for its maintainability must have the
clear authority of law. That explains why the right of appeal is described as a
creature of statute.
[Emphasis is ours]
It is comprehensible
from this decision that there is a basic distinction between the right of suit
and the right of appeal and that a suit is maintainable if there is no
statutory bar to do so. Significantly in the present case, Rule 42 clearly
posits that the Board can be sued in the name of its Secretary which is quite
contradictory to the Rule 38(ii) which enjoins that any action taken by the
Committee as a result of an enquiry shall not be called into question in any
Court of law. When there are contradictory provisions on the subject withinthe rules that which is in accordance with
law laid or interpreted statutorily will prevail and will be enforced. The embargo
contained in Rule 38(ii) which runs contrary to the other rule, is clearly
illegal and arbitrary and hence invalid thereby.
21. In fact the Supreme Court
in ZEE TELEFILMS LTD. Vs. UNION OF INDIA [supra] clearly clarified the
status of the board for the purpose of initiating action against the board when
the board involved in violating the right
of a cricket player who was found by the rules and regulations of the board.
Under similar questions raised, in fact the Supreme Court observed and held:
“23. The facts established in
this case show the following:
1. The Board is not
created by a statute.
2. No part of the share
capital of the Board is held by the Government.
3. Practically no
financial assistance is given by the Government to meet the whole or entire
expenditure of the Board.
4. The Board does enjoy
a monopoly status in the field of cricket but such status is not
State-conferred or State-protected.
5. There is no existence
of a deep and pervasive State control. The control if any is only regulatory in
nature as applicable to other similar bodies. This control is not specifically
exercised under any special statute applicable to the Board. All functions of
the Board are not public functions nor are they closely related to governmental functions.
6. The Board is not created
by transfer of a government-owned corporation. It is an autonomous body.
………
31. Be that as it may, it
cannot be denied that the Board does discharge some duties like the selection
of an Indian cricket team, controlling the activities of the players and others
involved in the game of cricket. These activities can be said to be akin to
public duties or State functions and if there is any violation of any
constitutional or statutory obligation or rights of other citizens, the
aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean
that the violator of such right would go scot-free merely because it or he is
not a State. Under the Indian jurisprudence there is always a just remedy for
the violation of a right of a citizen. Though the remedy under
Article 32 is not available, an aggrieved party can always seek a remedy under
the ordinary course of law or by way of a writ petition under Article 226 of
the Constitution, which is much wider than Article 32.
………
203. It is not disputed that
the Union of India has not recognised any other national
sports body for regulating the game of cricket in India. It is the categorical
stand of the Union of India that only by such recognition granted by the Union of India, is the team
selected by the Board the Indian cricket team which it could not do in the
absence thereof. We cannot accept the submission of Mr Venugopal to the effect that even
while playing abroad, the Board sends its own team. It is evident from the
records which fact has also been noticed by the Delhi High Court in its
judgment in Rahul Mehra [(2004) 114 DLT 323 (DB)] that the Board fields its
team as the Indian team and not as Board Eleven, which without having any
authority from the Union of India, it will not be able to do. The stand that
the cricket team selected by the Board only represents it and not the country
is incorrect. Having regard to the Rules of the ICC, its own Rules as also
various documents placed before this Court by the Union of India, the conduct
of both the Board and the Union of India clearly goes to show that sub silentio both the parties had
been acting on the premise that the Board is recognised as the onlyrecognised national federation for
the purpose of regulating the game of cricket in India.”
[Emphasis is ours]
Thus it is held by the
Supreme Court that although the Board is an autonomous body, it cannot be
denied the fact that the Board does discharge some duties akin to public duties
or State functions, namely, the selection of an Indian cricket team,
controlling the activities of the players and others involved in the game of
cricket; if there is any violation of any constitutional or statutory
obligation or rights, the aggrieved party can always seek a remedy under the
ordinary course of law and the violator of such right would not go scot-free
merely because it is not a State. Though the plaintiff was
bound by the rules and regulations of the Board that does not mean that the
Board could act quite arbitrarily infringing his fundamental rights. By virtue of Article 21
of the Constitution, he is guaranteed life and liberty. This entitles him to
live with dignity and fight any injustice that may be done to
him. Punishing him without any basis is definitely curtailment of his life
and liberty guaranteed under the said Article and quite arbitrary. Though the Board
got enormous powers as contemplated by its rules and regulations that should be
subject to fair play and fundamental rights of the players selected by it. In a democratic country
every system in vogue therein should be conducted within the process of
democracy. In the light of this law
laid down by the Supreme Court, it cannot be said that the Board being an
autonomous body, its actions cannot be subject to challenge before a Court of
law.
22. With regard to the
contention of learned counsel for the defendants that the suit is not maintainable
against the Board as the relationship between the plaintiff
and the Board is a contract of service by reason
of which also the plaintiff is not entitled to question any rules or
regulations framed by the Board and, at best, the plaintiff can lay a suit for
damages in such cases if he is so advised in INDIAN AIRLINES CORPN.
Vs. SUKHDEO RAI [supra] the Supreme Court held thus:
“12. The regulations
contain the terms and conditions which govern the relationship between the
Corporation and its employees. Though made under the power conferred by the
statute, they merely embody the terms and conditions of service in the
Corporation but do not constitute a statutory restriction as to the kind of
contracts which the Corporation can make with its servants or the grounds on
which it can terminate them. That being so, and the Corporation having
undoubtedly the power to dismiss its employees, the dismissal of the respondent
was with jurisdiction, and although it was wrongful in the sense of its being
in breach of the terms and conditions which governed the relationship between
the Corporation and the respondent, it did subsist. The present case,
therefore, did not fall under any of the three well-recognized exceptions, and
therefore, the respondent was only entitled to damages and not to the
declaration that his dismissal was null and void.
[Emphasis is ours]
So in this the Supreme Court under
relevant circumstances particularly
non falling of the case under any of the three
well-recognized exceptions, held that the respondent-workman was only entitled
to seek damages instead of seeking a declaration as to his dismissal as null
and void. On facts, this decision has no application to the present case.
23. In
the present case, no statutory provision is placed before us whereby a suit is
not maintainable against the Board except a restriction contained in Rule 38
that the action of Committee shall not be assailed before a Court of law which
is clearly in consistent with Rule 42 which in unmistakable terms provides that
the Board can sue and be sued. In so far as non-joinder and mis-joinder
of parties to the suit is concerned, specific reliefs are
sought against the Board only, as rightly put it by the learned counsel for the
plaintiff, and therefore, the contention raised in that regard cannot be
countenanced.
24. The
learned counsel for the defendants also has argued that the suit is not
maintainable on the ground of mis-joinder
and non-joinder of parties. Refuting this contention, the learned counsel for
the plaintiff submitted that the reliefs in
the suit are only sought against the Board and therefore necessary and proper
parties are arraigned in the suit and there was no need to implead any
other parties for the purpose of maintaining the suit and that the suit as
framed and instituted is clearly maintainable.
25. In
the light of the facts and circumstances of cases discussed hereinabove and
keeping in mind the law laid down by the Supreme Court referred to supra on
the point, we hold that the suit is maintainable. We accordingly answer the
Point No.2 in favour of the plaintiff and against the defendants.
POINT No. 3:
26. It
is the case of the plaintiff that Rule 38 at the relevant point of time did not ipso
facto envisage
appointment of a Commissioner by the Board for conducting an enquiry into the
allegations of any act of indiscipline or misconduct of any player and that the
Board has no power to appoint the defendant 2 as the Commissioner on 29.08.2000
which is contrary to its Rules and Regulations. In the light of this specific
plea, the learned counsel for the plaintiff has strenuously argued that the
appointment of defendant 2 as the Commissioner on 29.08.2000 by the Board is
illegal, invalid and void ab initio having
been done in complete disobedience to its own Rules and Regulations. The
learned counsel thus asserted that the Board got no power whatsoever to appoint
the defendant 2 for that post to conduct the enquiry against the plaintiff and
thus it is illegal and invalid.
27. The
learned counsel has further argued that the so-called amendment carried out to
the Rule 38 which came into force on and from 29.09.2000 cannot have any
application to the present case as the defendant 2 was appointed as the
Commissioner under the Rule on 29.08.2000 by which time the un-amended Rule 38
was holding the field under which such appointment cannot be made. The learned
counsel also took us, in this regard, through the plaint averments to show that
such a specific plea was taken at the threshold itself and contended that
despite taking that plea, the Court below erred in rejecting the plea.
28. As
against this, it is the submission of learned counsel for the
defendants that as Rule 38 was duly amended which came into force on 29.09.2000
and that only thereafter the defendant 2 as the Commissioner had, in fact,
initiated the enquiry proceedings the appointment was ratified and valid which
aspect was rightly considered and upheld by the Court below which does not
require any interference in this appeal.
29. In
the backdrop of these respective arguments on the point, at the threshold it is
necessary for us to go through circumspectly Rule 38 which stood as on
29.08.2000, it reads as under:
“38. MISCONDUCT
AND PROCEDURE TO DEAL WITH:
(i) The
President shall take cognizance of any act of indiscipline or misconduct of any
player representing India on
any tour or in any Test Match, official or unofficial, inIndia or
elsewhere or in any match controlled and/or played under the auspices of the
Board and shall
act in the manner hereinafter specified.
(ii) The
President shall frame or direct the Secretary to frame charge or charges
against the player who is guilty of indiscipline or misconduct.
Such charge or charges shall be communicated to the player concerned by the
Secretary and the offending player shall be called upon to give in writing such
explanation as he may have to render.The President shall constitute a
Committee of three persons of whom the President shall be one. The explanation
from offending player shall be placed before such Committee. If after receipt
of the explanation from the offending player, Committee is satisfied that no
steps are necessary to be taken, the Committee may not take any action. If
the Committee is of the opinion that the explanation submitted by the offending
player is not satisfactory, the Committee shall convene a meeting and shall
give reasonable notice of the date, place and time of the meeting to the
offending player to attend in person before the Committee with such evidence as
he may have to lead before it. The Committee shall at such meeting hear
the offending player, and the evidence he may lead or produce and thereafter
take such action as the Committee may in its discretion deem ft. In
conducting the enquiry against the offence player, the Committee shall follow
the rules of Natural Justice. If an offending player refuses or
neglects to render an explanation or fails to appear before the Committee after
due notice to him, the Committee shall be entitled to proceedex-parte.
At a meeting of the Committee the offending player shall not be entitled to be
represented by a lawyer. The decision of the Committee shall be final and
binding on the offending player and the Board. The action, if any, taken by the
Committee as a result of an enquiry shall not be called into question in any
court of law. The Secretary shall at the next Annual General Meeting of the
Board place before the Board the proceedings of the Committee and its decision
for the purpose of being recorded only.
(iii) (a) If
any Member, or an Associate Member or any office-bearer or any Vice President
of the Board refuses or neglects to comply with provisions of the rules or
shall be guilty of such conduct as the Board may consider likely to endanger
the harmony or affect the reputation, stability or interest of the Board such
member or office-bearer or Vice-President shall be liable to expulsion by
a resolution taken at a General Meeting of the Board specially convened for the
purpose, provided that the resolution for expulsion is carried by a majority of
3/4th of
the votes of the members present and voting.
(b)
An office-bearer or a Vice-President of the Board shall be expelled from their
office in case 3/4th of
majority present and voting at a special General Meeting convened for the
purpose consider that such office-bearer or Vice-President has forfeited the
confidence of the Board.
(c)
A Member or an Associate Member or office-bearer or Vice-President expelled under
these rules shall forfeit all rights, privileges and benefits.
(d) A
member or an Associate Member expelled under this rule may on application made two
years after expulsion be readmitted by the Board provided that a General
Meeting 3/4th of
the Members present and voting, vote for readmission of such member.”
[Emphasis
is ours]
Admittedly, the rule as extracted above
was in force as on 29.08.2000 however, it is said that thereafter this rule
underwent amendment which came into force on and from 29.09.2000.
30. A
bare perusal of the rule makes it plain that if there is any act or
indiscipline or misconduct of any player, the President is empowered to take
cognizance thereof and shall act in the manner so specified in the rule only.
In such an event, the rule thereafter ordains that the President shall either
frame charges against such player in that behalf or direct the Secretary to do
so which shall be communicated to such player by the Secretary.
In such cases, the offending player is called upon to offer his explanation
answering those charges framed against him. After the receipt of the
explanation from the offending player, the President shall constitute a
Committee consisting of three persons including himself being
one among the three members of the Committee and the explanation shall be
placed before such Committee for its decision. If the Committee is satisfied
therewith, no action is to be proposed against the offending player. However,
if the Committee is not content with the explanation, a meeting shall be
convened by the Committee and reasonable notice of date, place and time of the
meeting shall be afforded to the offending player enabling him to attend in
person before it becoming necessary evidence, if any, he may have desired to lead
and place before it. Thereafter, the offending player shall be heard by the
Committee which shall also allow him to adduce or produce further evidence
before it. In doing so, the Committee shall also observe the rule of principles
of natural justice. It is also envisaged therein that the decision of the
Committee shall be final and binding on the offending player as well as the
Board.
31. It
is clearly contemplated that if the adherence of the provisions of the said
rule is violated while complying with those by any Member or an Associate
Member or any office bearer or any Vice-President of the Board, they shall be
held to be guilty of such conduct which may be considered by the Board as is
likely to endanger its harmony or affect its reputation, stability and
interest, thereby such guilty member is liable to expulsion by way of a
resolution to be taken at a General Meeting of the Board by 3/4th of
the votes of the members present at the time of voting. However, despite
contemplating imposition of this stringent punishment upon the guilty expelled
member, under clause (d) of sub-rule (iii) of Rule 38, it is specifically
provided that an expelled member, on his application two years after such
expulsion, may be re-admitted by the Board if 3/4th of
the Members present at the time of voting, voted for the re-admission of such
member at a General Meeting.
32. No
where in the entire Rule
38 of the Rules and Regulations of the Board the appointment of a Commissioner
to enquire into an alleged act of indiscipline or misconduct of a player is
envisaged. On the other hand, the Committee, as discussed hereinabove,
consisting of three members alone shall enquire into such charges by strictly
following the rule of principles of natural justice whereas the violation of
the rule in complying with the procedure contemplated therein also entail
severe punishment, namely, their expulsion from their office. This clearly
indicates the strict nature of obligation placed on the Committee when it is
discharging its duties in conducting the proceedings before it.
33. While
such is the tone and tenor of the rule, in the present case, the specific
averment of the plaintiff is that the defendant 2 was appointed on 29.08.2000
by the Board purportedly under Rule 38 as a Commissioner in gross violation of
its Rules and Regulations as it does not empower it to do so. The plaintiff as
P.W.1 also deposed to the same effect. Not only this evidence but also the
evidence of D.W.1 the Executive Secretary at the relevant point of time
deposing on behalf of the Board manifestly discloses to the said effect.
Reference in this regard may be made to para 9
of the chief-examination of D.W.1 which supports this observation, it reads as
follows:
“9. Independent
of the same, the 1st Defendant,
being concerned with the serious allegations made with regard to betting,
match-fixing and other related malpractice had resolved to cause an inquiry to
be conducted and in
pursuance of the same referred the matter to the 2nd Defendant
on 29.08.2000 for conducting an enquiry into the various said allegations.”
[Emphasis
is ours]
It is however relevant
to notice the averments of the defendant 2 raised at para 2(iii)
in his written statement which reads as under:
“iii. .........
The plaintiff while questioning the appointment of this Defendant and the
actions of this Defendant, has challenged the
provisions of the Rule 38(ii) relating to holding of disciplinary proceedings
as before amendment of the said Rules on 29.09.2000. This Defendant conducted
the disciplinary proceedings only after 29.09.2000.
.........”
[Emphasis is ours]
The Defendant 2, in fact, in the preface
of his report dated 24.11.2000 submitted to the Board, on this aspect, noted
thus:
“As
I have been appointed as Commissioner by the Board of Control for Cricket in
India (BCCI) vide their letter dated August 29, 2000 to conduct follow up
enquiries in such cases, BCCI made available to me a copy of the report on
2nd November,
2000.”
[Emphasis
is ours]
Even the averment of defendant
3 in this regard is to the similar effect. It is also useful to look at para 8
of his written statement in this context which reads as follows:
“8. .........It
is submitted that Rue 38 of the Rules and Regulations of BCCI, which
was amended on 29.09.2000 specifically
provide for reference of any complaint relating to indiscipline, misconduct or
violation of any of the Rules and Regulations by any player, umpire, etc. to a
Commissioner for making a preliminary enquiry. .........”
[Emphasis is ours]
Whereas admittedly the Board appointed the
defendant 2 as the Commissioner on 29.08.2000 and that the rule was
amended. It
is crystal clear that by the date of appointment of defendant as the
Commissioner by the Board on 29.08.2000 the unamended Rule
was holding the field which reflected that the Board exercised its power in
making such appointment purportedly under Rule 38 thereof. Fortunately
or unfortunately, Rule 38 as stood as on that day did not confer power on the
Board to appoint the Commissioner. Perhaps that was one of the reasons why
the Board thought it fit to amend the Rules and Regulations on 29.09.2000 i.e.
immediately one month after the appointment of the defendant 2 as the
Commissioner under its unamended Rules
and Regulations. It may be true that the amended Rules and Regulations confer
power on the Board to do so. This so-called amendment will not come to the aid
of the Board to contend that the effect of the amendment of its Rules and
Regulations would have impact and application on the acts made and done by it
prior thereto. Such contention, in any event, does not stand to reason and
cannot be countenanced. It is rather startling to take note of the fact that
for the utter violation committed in appointing the defendant 2 as the
Commissioner quite contrary to its own Rule, the Board failed to initiate
action, namely, expulsion of the violator/violators of its Rules and
Regulations from the office as specifically contemplated under Rule 38(iii)(a)
as on 29.08.2000. In the light of this inaction on the part of the Board, its
continued action against the plaintiff does not at all inspire the confidence
of this Court in so far as its submission of fairness, transparency and the
avowed object of conducting the enquiryis concerned.
34. In
support of his contentions on the point, the learned counsel for the plaintiff
seeks to place reliance upon a Judgment of the Supreme Court in STATE OF U.P. V. NEERAJ
AWASTHI [(2006) 1 SCC 667] wherein it was inter alia held thus:
“75. The fact that all appointments have been made without
following the procedure, or services of some persons appointed have
been regularised in the past, in our opinion, cannot be said to be a
normal mode which must receive the seal of the court. Past practice is not always
the best practice. If illegality has been
committed in the past, it is beyond comprehension as to how such illegality can
be allowed to perpetuate. The State and the Board were bound to take steps in accordance
with law. Even in this behalf Article 14 of the Constitution will have no
application. Article 14 has a positive concept. No equality can be claimed in
illegality is now well settled. ………”
[Emphasis is ours]
It is clear from the
above that if an illegality is committed, the protections enumerated under the
Constitution of India will have also no application.
35. In STATE OF KARNATAKA Vs. KGSD
CANTEEN EMPLOYEES' WELFARE ASSN. [(2006) 1 SCC 567] the Supreme Court inter alia held thus:
“44. In any view, in our
democratic polity, an authority howsoever high it may be cannot act in breach
of an existing statute or the rules which hold the field.”
[Emphasis is ours]
It is thus clear that an
authority howsoever high it may be cannot be allowed to act in complete breach
of an existing statute or the rule.
36. Thereby, as the Board in
the present case, in absolute breach of its own Rules and Regulations illegally
and arbitrarily appointed the defendant 2 as the Commissioner to conduct the
enquiry against the plaintiff the consequential action flown therefrom in toto is nullity in the eye of
law and no consequential protection is available to the board in that behalf.
37. Having
due regard to the discussion made hereinto when in the light of the facts and
circumstances of the case, the
Rules and Regulations of the Board that were in force as on 29.08.2000 did not
posit any appointment of a Commissioner whereby the Board got no power to make
the appointment of the defendant 2 as the Commissioner to conduct the enquiry
with regard to any act of indiscipline and misconduct of the plaintiff and
submit a report to it in accordance with the Rule 38, the appointment of
defendant 2 as the Commissioner on 29.08.2000 in unabashed violation of its
Rules and Regulations is illegal, invalid, ultra vires and
nullity in the eyes of law. The subsequent framing of the charges and
conducting of the enquiry cannot have the power of ratifying the illegality so
committed. The Board could have issued another appointment order consequent to
the amendment of the rule to avoid the illegality flown from the appointment on
28.8.2000 and the consequences of it. We accordingly answer the Point Nos.2 and
3 in favour of the plaintiff and against the defendants.
POINT NO.4:
38. It
is contended by the plaintiff that the defendant 2 while serving as the Joint
Director in the CBI availed voluntary retirement from his service and started
practicing as an Advocate and was advising the Board in its legal matters; by
reason of which there was a relationship of Advocate and client in between them
and therefore he was not qualified and competent to be appointed as the
Commissioner to conduct the enquiry against the plaintiff on the grounds of
bias, prejudice and unfairness in arriving
at the ultimate conclusions. The learned counsel also has stated that the Board
did not even prepare any panel for making the appointment of Commissioners and
that no resolution had in fact also been passed by the Board in that context.
In support of his contentions, he drew our attention to the cross-examination
made to D.W.1 to show that the defendant was, in fact, advising the Board as
the Advocate at the relevant point of time, which reads as under:
“I
did not meet Mr.Madhavan any
time. D-2
was advising BCCI after became an Advocate. D-3
was the President of D-1 at that time. I am not aware whether D-3 invited D-2
for his service. It is true that D-2 was appointed as Enquiry Officer on
29.08.2000 (29th August,
2000). It
is correct that under the said appointment D-2 conducted the enquiry. .........”
[Emphasis
is ours]
From the cross-examination of D.W.1, it is
proved that the defendant 2, being an Advocate at the relevant point of time,
was advising the Board in its legal aspects.
39. That
apart, it is clearly urged before us that the defendant 2 was not qualified and
competent to be appointed as the Commissioner inasmuch as he had no experience
and was not well acquainted with the procedure laid and hence not adept and
unsustainable for conducting the subject enquiries in as much as he had never
been a Judge nor had undergone any training in that regard; and that he did not
know the rudimentaries or
the basics of the sport of cricket. On these grounds coupled with the fact that
his appointment itself is invalid being in stark violation of the Rules and
Regulations of the Board, the consequential impugned order dated 05.12.2000 is
summarily liable to be set aside.
40. Apropos the contention
that the defendant 2 was not adept and unsuitable to be appointed as the
Commissioner to conduct the subject enquiry, it is submitted that the defendant
2 was, indeed, the Joint Director of CBI that he had vast experience in
conducting investigations and in prosecuting and monitoring various cases
including large number of departmental enquiries/disciplinary proceedings; and
that in view of this high-profile and professional background, it is illegal
and unfair to term the defendant 2 to be not
adept and unsuitable for being appointed as the Commissioner, which issue was fairly
considered and upheld by the Court below which does not warrant any
interference from this Court. Reference is also made to para 8 of the written
statement filed by the defendant 2 which reflects that he was well acquainted
with the conducting of enquiries of this nature.
41. It is true that in the
light of the nature of findings recorded by us hereinabove on the Point Nos.1
to 3, it is usually not necessary for this Court to adjudicate and decide the
other points and straight away the appeal can be disposed of. However, we deal
with the other points formulated by us also on merits keeping in mind the
lengthy arguments put forth before us by the learned counsel on either side
which thereby required to be decided on merits.
42. In KUMAON MANDAL VIKAS
NIGAM LTD. Vs. GIRJA SHANKAR PANT [(2001) 1 SCC 182], the Supreme Court
explained as to what procedure should normally be followed in a disciplinary
enquiry and held as under:
“22. The sixty-five page
report has been sent to the Managing Director of the Nigam against the petitioner
recording therein that the charges against him stand proved — what is the
basis? Was the enquiry officer
justified in coming to such a conclusion on the basis of the charge-sheet only? The answer cannot
possibly be in the affirmative; if the records have been considered, the
immediate necessity would be to consider as to who is the person who has
produced the same and the next issue could be as regards the nature of the
records — unfortunately there is not a whisper in the rather longish report in
that regard. Where is the presenting
officer? Where is the notice fixing the date of hearing? Where is the list of
witnesses? What has happened to the defence witnesses? All these
questions arise but unfortunately no answer is to be found in the rather longish
report. But if one does not have it — can it be termed to be in consonance with
the concept of justice or the same tantamounts to a total miscarriage
of justice. The High Court answers
it as miscarriage of justice and we do lend our concurrence therewith. ………”
[Empahsis is ours]
43. In STATE OF UTTARANCHAL Vs. KHARAK
SINGH [(2008) 8 SCC 236], the Supreme Court
considering its earlier judgments deduced the following principles as to the
procedure to be adopted in the departmental enquiries:
“15. From the above
decisions, the following principles would emerge:
(i) The enquiries must be
conducted bona fide and care must be taken to see that the enquiries do not
become empty formalities.
(ii) If an officer is a
witness to any of the incidents which is the subject-matter of the enquiry or
if the enquiry was initiated on a report of an officer, then in all fairness he
should not be the enquiry officer. If the said position becomes known after the
appointment of the enquiry officer, during the enquiry, steps should be taken
to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the
employer/department should take steps first to lead evidence against the
workman/delinquent charged and give an opportunity to him to cross-examine the
witnesses of the employer. Only thereafter, the workman/ delinquent be asked
whether he wants to lead any evidence and asked to give any explanation about
the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is
incumbent on the part of the disciplinary/punishing authority to supply a copy
of the enquiry report and all connected materials relied on by the enquiry
officer to enable him to offer his views, if any.”
44. As can be seen from the
report dated 24.11.2000 submitted by the defendant 2 to the Board, the above
said principles laid down by the Supreme Court had not been succinctly
followed by him while drawing up his report, which clearly suggests that he was
not well acquainted with the fundamental principles and procedure to be
followed in conducting a departmental enquiry. This failure on the part of the
defendant 2 as the Commissioner to conduct the enquiry against the plaintiff
strictly as per the prescribed statutory procedure obviously supports the
argument of learned counsel for the plaintiff that the defendant 2 was not
competent and qualified to be appointed as the Commissioner to conduct the
subject enquiry against the plaintiff. It is also not forthcoming from the
record as to what inspired the Board to appoint the defendant 2 as the
Commissioner in the light of the above noted incompetency and lacking requisite
qualification for conducting the subject enquiry as per the statutory norms.
45. This apart, the
defendant 2 being an Advocate was advising the Board on its legal aspect,
should not have been appointed as the Commissioner as such action on the part
of the Board ex facie shows that the defendant
2 would ordinarily be obliged to draw up his final report in favour of the Board in the
light of their inter se relationship as Advocate
and client. Therefore, the Board failed, on this ground, to keep this basic
principle in mind while appointing him as such being its legal adviser at the
relevant point of time. However, the learned counsel for the defendants sought
to defend the appointment of defendant 2 as the Commissioner on the ground that
an Advocate could be appointed as the Commissioner to conduct enquiries,
placing reliance on a judgment of the Supreme Court in THANJAVUR TEXTILES LTD.
Vs. B. PURUSHOTHAM [1999) 3 SCC 316]wherein it was held:
“13. Once it was conceded in
the High Court by the learned Senior Counsel who appeared for the workmen that
an advocate could be appointed as an enquiry officer, the advocate would, in
our opinion, have all the normal powers of an enquiry officer including the
power to give findings as to the misconduct of the employees. We are unable to make
a distinction between the powers of an enquiry officer who is an employee of
the Company and an outsider. If the Manager was entitled to appoint an enquiry
officer, in either case, the appointee in his capacity as an enquiry officer,
would have the same powers. We accordingly hold that the advocate in this case
could have given findings as to misconduct and the Division Bench of the High
Court was wrong in thinking that the advocate being an outsider would not
have the power to give findings as to the misconduct of the employees.”
That was a case where
the delinquent employees clearly conceded before the High Court their got no
objection for the appointment of the Advocate as an Enquiry Officer. In the
present case, neither a consent was given by the
plaintiff nor was sought by the Board for the appointment of the defendant 2 as
the Commissioner to conduct the subject enquiry against the plaintiff. In the
light of this factual scenario, that decision given on different set of the
facts cannot have any application to the present case the facts of which are
quite distinct and different.
46. Further, in this regard,
the learned counsel for the plaintiff has drawn the attention of this Court to
a Division Bench of the Delhi High Court in MANJIT AHLUWALIA Vs.
UNION OF INDIA [53 (1994) DLT 571 (DB)]. Therein, His Lordship D.P.Wadhwa, J (as His Lordship
then was) speaking for the Bench held thus:
“14. Since the appointment of
Inquiry Officer itself was void ab initio, his holding
disciplinary proceedings are of no effect and these could not be acted upon by
the disciplinary authority in imposing the impugned punishment on the
petitioner. It cannot be argued that
the disciplinary authority independently applied its mind to the charges and it
will not validate an order which is bad at the very start. The decision which is
void ab initio could not be validated by the disciplinary authority.
[Emphasis is ours]
47. In the light of the law
laid down by the Supreme Court on the point referred to hereinabove and keeping
in mind the facts and circumstances of the case, we are of the considered opinion
that the Board should not have appointed the defendant 2 as the Commissioner,
he being its legal adviser at the relevant point of time, and not
adept and unsuitable for being appointed as he was not well acquainted with the
conducting of disciplinary enquiries which is reflected from a bare perusal of
his report dated 24.11.2000; and also unsuitable on the ground that there
was every likelihood and possibility of deciding the matter with bias,
prejudice and unfairness against the plaintiff. We accordingly answer the Point
No.4 in favour of the plaintiff and against the defendants.
POINT Nos. 5 AND 6:
48. It
is also urged that the principles of natural justice had been utterly violated
while conducting the enquiry proceedings and therefore on this premise also,
the proceedings arisen from such an illegal enquiry cannot be relied upon and
are liable to be brushed aside. It is also argued that the plaintiff was not
afforded an opportunity to cross-examine the witnesses whose statements were
said to have been recorded by the CBI during its preliminary enquiry but were,
in fact, relied upon by the defendant 2 while drawing up his report dated
24.11.2000 and therefore placing reliance on such evidence is clearly hit by
the relevant provisions of Evidence Act, 1872.
49. Against
the allegations of match fixing, it is submitted that those allegations were
not proved against the plaintiff in the preliminary enquiry conducted by the
CBI which is reflected in its report dated 31.10.2000 forwarded to the Board.
That apart, the enquiry conducted by the defendant 2 did not disclose any
further information than what the CBI did gather evidence on the point for the
simple reason that the defendant 2 had not made any independent enquiry in that
regard but merely recorded the statements of the plaintiff, perused the
preliminary enquiry of the CBI erroneously placed reliance on such report and
finally submitted his report to the Board which report has no legal basis and
is nullity in the eyes of law. It is also stated that the Board, without
looking into these basic aspects, was roller blind in accepting and placing
complete reliance on the report dated 24.10.2000 in a very casual and
mechanical manner and came to the conclusion that the plaintiff was guilty of match
fixing without any material evidence before it and without following the
principles of natural justice and not even affording an opportunity of
cross-examining the witnesses whose statements are said to have been recorded
by the CBI and which were simply relied upon by defendant 2. Stating so, the
learned counsel posed a question to himself that when the CBI failed to gather
any concrete evidence during its marathon preliminary enquiry and in fact said
so in its report to the effect that there was no evidence against the plaintiff
with regard to match fixing, it is incomprehensible and inexplicable as to how
the Committee/the Board came to a conclusion that the plaintiff is found guilty
of the allegation of match fixing in the light of the fact that defendant 2 did
not conduct any independent enquiry, examine and record any evidence from any
other independent witnesses, save and except the mere statement of the
plaintiff alone, which is only the record available before the Committee for
arriving at an erroneous conclusions, which are liable to be set aside being
recorded based on no evidence at all. The learned counsel thus submitted that
in the absence of any independent enquiry by defendant 2 with regard to the
allegation of match fixing against the plaintiff, his client cannot be held to
be guilty of such an allegation without any concrete evidence brought on
record.
50. In
so far as the violation of principles of natural justice is concerned, it is seriously contended that
the plaintiff having participated in the entire enquiry proceedings conducted
by the defendant 2 did not raise any objection whatsoever and thus at this
stage violation of any principles of natural justice or any statutory procedure
during the enquiry conducted against him cannot be raised.
51. It is also put forth
before this Court on behalf of the defendants that the CBI in its report dated
31.10.2000 came to the conclusion against the plaintiff that he had contacts
with bookies and big time punters and had fixed matches/performances and
therefore was found guilty of the charges levelled against him; and that the
defendant 2 upon conducting a full-fledged enquiry against the plaintiff and
placing reliance on the report of the CBI, submitted his report to the Board
indicting the plaintiff basing on which the impugned order dated 05.12.2000
came to be issued. It was thus contended that the allegations of match fixing
against the plaintiff have been proved beyond doubt in the enquiry took up by
defendant 2.
52. It is pertinent to have
a glance at the report dated 24.11.2000 submitted by the defendant 2 to the
Board with regard to the so-called enquiry conducted against the plaintiff. In
a prelude to the report, the defendant 2 stated thus:
“It is necessary to
explain the difference between a Preliminary Enquiry (PE) and a Regular Case
(RC) Registered by CBI. A case becomes an RC when an FIR is registered by
the CBI under Section 154 of the Code of Criminal Procedure, 1973. In such a
case, CBI would conduct a statutory investigation under Chapter XII of the Code
of the Criminal Procedure, 1973. In such an investigation CBI has powers of
conducting searches and arrests. An RC, namely an FIR, would be registered by
the CBI only if the complaint received by the CBI discloses the suspected
commission of cognizable offence by anyone. As against this, if the
complaint is received by the CBI does notprima facie disclose the possible
commission of any cognizable offence, CBI would register only a PE in which
enquiries are conducted on the basis of the general police powers vested in the
CBI. Such enquiries are not
conducted under the provisions of the CrPC 1973. In a PE, CBI has no
power of arrest and generally has no power of search also.
On completion of the
enquiry CBI submitted its report of 162 pages to Government of India on 31st October, 2000 which was
released to the media and the public by the Government of India on 1st November, 2000.”
[Emphasis is ours]
53. From a perusal of the
above excerpted paragraph, it is clear that the CBI conducted only the PE in
the matter. That clearly demonstrates that there was no complaint given before
the CBI disclosing the commission of a cognizable offence in the matter. The PE
was conducted not under the provisions of the Code of Criminal Procedure, 1973
(Cr.P.C).By
virtue of Section 154 Cr.PC the
Police can register a cognizable offence on receiving a complaint which puts
the criminal law into motion followed by conducting necessary investigation as
contemplated by the latter provisions (in the Cr.PC). In
any case by virtue of Section 161 Cr.PC coupled
with Section 162 Cr.PC any
statement made to a Police Officer, during the course of investigation of a
cognizable offence, is not admissible except for the purpose of disproving the
veracity of the maker of it subject to his examination before a criminal court
of law as contemplated therein. Those
statements, which can be taken cognizance of, cannot form part of substantive
evidence to prove any criminal charge as the case may be. That
apart it is not shown as to under what authority the Board could refer the
matter to the CBI for conducting preliminary enquiry or investigation and file
report. It
is an Agency to conduct necessary investigation into any criminal charge as
directed either by the Central Government or a State Government as the case may
be. By
virtue of Section 156(3) Cr.PC,
the CBI
Court who
got jurisdiction can refer a complaint filed before it to the CBI for
conducting necessary investigation and report with regards to a criminal charge
subject to its competency to take cognizance of it. Thereby
it appears that the reference of the matter to the CBI for conducting necessary
preliminary enquiry or investigation in the matter is without any
authority. Even
otherwise the preliminary enquiry report of the CBI cannot be a basis to take
action against the plaintiff as the nomenclature of it (preliminary enquiry) itself indicates that
it is subject to the final enquiry to be conducted on showing sufficient
material to do so. Therefore
the report of the CBI could not be a basis for the defendant 2 to give his
report to the Board against the plaintiff. Utmost
he could have taken into consideration the CBI record as aid to go on with the
final enquiry proceedings before him. He
ought to have examined the witnesses concerned and recorded their statements
giving opportunity to the plaintiff to cross examine him subject to his
authority to do so. If
on that basis he came to the conclusion that the charges leveled against
the plaintiff were proved he could have sent his report to the Board against
the plaintiff accordingly. These basic and
fundamental procedures were not followed by the defendant 2 while placing
reliance on the statements recorded by CBI. This failure on the part of
defendant 2 is fatal to the case of the defendants. Therefore the consequential
report dated 24.11.2000 is a nullity in the eyes of law and cannot be
countenanced and acted upon.
54. In CHAMPAKLAL CHIMANLAL
SHAH Vs. UNION OF INDIA [(1964) 5 SCR 190] the Supreme Court
categorically explained the distinction between ‘preliminary enquiry’ and
‘regular departmental enquiry’ and held as under:
“13. Generally therefore a
preliminary enquiry is usually held to determine whether a prima facie case for
a formal departmental enquiry is made out, and it is very necessary that the
two should not be confused. Even where government does not intend to take action by way of
punishment against a temporary servant on a report of bad work or misconduct a
preliminary enquiry is usually held to satisfy government that there is reason
to dispense with the services of a temporary employee or to revert him to his
substantive post, for as we have said already government does not usually take
action of this kind without any reason. Therefore when a
preliminary enquiry of this nature is held in the case of a temporary employee
or a government servant holding a higher rank temporarily it must not be
confused with the regular departmental enquiry (which usually follows such a
preliminary enquiry) when the government decides to frame charges and get a
departmental enquiry made in order that one of the three major punishments
already indicated may be inflicted on the government servant. Therefore, so far as the
preliminary enquiry is concerned there is no question of its being governed by
Article 311(2) for that enquiry is really for the satisfaction of government to
decide whether punitive action should be taken or action should be taken under
the contract or the rules in the case of a temporary government servant or a
servant holding higher rank temporarily to which he has no right. In short a preliminary
enquiry is for the purpose of collection of facts in regard to the conduct and
work of a government servant in which he may or may not be associated so that
the authority concerned may decide whether or not to subject the servant
concerned to the enquiry necessary under Article 311 for inflicting one of the
three major punishments mentioned therein. Such a preliminary enquiry may even
be held ex parte, for it is merely for the satisfaction of government, though
usually for the sake of fairness, explanation is taken from the servant
concerned even as such an enquiry. But at that stage he has no right to be heard for the enquiry is
merely for the satisfaction of the government and it is only when the
government decides to hold a regular departmental enquiry for the purpose of
inflicting one of the three major punishments that the government servant gets
the protection of Article 311 and all the rights that that protection implies
as already indicated above. There must therefore be
no confusion between the two enquiries and it is only when the government
proceeds to hold a departmental enquiry for the purpose of inflicting on the
government servant one of the three major punishments indicated in Article 311
that the government servant is entitled to the protection of that Article. ………”
55. As long back as in the
year 1964 itself the Supreme Court had occasion to distinguish between ‘preliminary
enquiry’ and ‘regular departmental enquiry’ and stated the stark differences in
between the two enquiries. A careful reading of the judgment makes it abundantly obvious that
generally a preliminary enquiry is initiated only for the purpose of collection
of facts in respect of a particular aspect/issue and such preliminary enquiry
may even be held ex parte as no punishment is
inflicted on the ultimate result of such enquiry. On the other hand, a regular
departmental enquiry is usually proposed to be held with a view to impose
punishment upon the delinquent persons if the allegations levelled against them
are proved ultimately in such an enquiry. Therefore, in conducting regular
departmental enquiry, the constitutional protections shall be afforded to the
delinquent persons.
56. The learned counsel for
the plaintiff seeks to place reliance on a Judgment of the Supreme Court in STATE OF MADHYA PRADESH Vs.
CHINTAMAN SADASHIVA WAISHAMPAYAN [AIR 1961 SC 1623] wherein the Constitution
Bench dealing with the principles of natural justice held as under:
“10. ……… The only general
statement that can be safely made in this connection is that the departmental
enquiries should observe rules of natural justice, and that if they are fairly
and properly conducted the decisions reached by the enquiry officers on the
merits are not open to be challenged on the ground that the procedure followed
was not exactly in accordance with that which is observed in courts of law. As Venkatarama Aiyar, J. has observed in Union of India v. T.R.Varma [AIR 1957 SC 882]
“stating it broadly and without intending it to be exhaustive it may be
observed that rules of natural justice require that a party should have the
opportunity of adducing all relevant evidence on which he relies, that the
evidence of the opponent should be taken in his presence, and that he should be given
the opportunity of cross-examining the witnesses examined by that party, and
that no materials should be relied on against him without his being given an opportunity
of explaining them”. It is hardly
necessary toemphasise that the right to cross-examine the witnesses who give evidence
against him is a very valuable right, and if it appears that effective exercise
of this right has been prevented by the enquiry officer by not giving to the
officer relevant documents to which he is entitled, that inevitably would be
that the enquiry had not been held in accordance with rules of natural justice. That is the view taken
by the High Court, and in the present appeal which has been brought to this
Court under Article 136 we see no justification for interfering with it. In
this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India [AIR 1958
SC 300] where this Court has emphasised the importance of giving
an opportunity to the public officer defend himself by cross-examining the
witnesses produced against him.’
[Emphasis is ours]
That apart way back in
the year 1961, the Constitution Bench of the Supreme Court had occasion to
concisely lay down the manner and method as to how the rule of principles of
natural justice be followed while conducting departmental enquiry. It is
clearly stated that the observance of rules of natural justice is necessary
while conducting departmental enquiries and if such enquiries are fairly and
properly conducted, the decisions thereon cannot be subjected to challenge on
the premise that exact procedure, as is observed in Courts of law, is not
adhered to. Further, the delinquent shall be given an opportunity of
cross-examining the witnesses and no material should be taken into
consideration against him without affording him an opportunity of explaining
the same.
57. The learned counsel also
has drawn the attention of this Court on that aspect to a Judgment of this
Court in MEENGLAS TEA ESTATE Vs. WORKMEN [1963 SC
1719]. Therein, the Supreme
Court emphasized the purport of the principles of natural justice and pithily
held thus:
“4. The Tribunal held that
the enquiry was vitiated because it was not held accordance with the principles
of natural justice. It is contended that this conclusion was erroneous. But we
have no doubt about its correctness. The enquiry consisted of
putting questions to each workman in turn. No witness was examined in support
of the charge before the workman was questioned. It is an elementary principle
that a person who is required to answer a charge must know not only the
accusation but also the testimony by which the accusation is supported. He must
be given a fair chance to hear the evidence in support of the charge and to put
such relevant questions by way of cross-examination as he desires. Then he must be given a
chance to rebut the evidence led against him. This is the barest requirement of
an enquiry of this character and this requirement must be substantially
fulfilled before the result of the enquiry can be accepted. A departure from this
requirement in effect throws the burden upon the person charged to repel the
charge without first making it out against him. In the present case
neither was any witness examined nor was any statement made by any witness
tendered in evidence. The enquiry, such as it was, made by Mr.Marshall or Mr.Nichols who were not only in the
position of judges but also of prosecutors and witnesses. There was no opportunity
to the persons charged to cross-examine them and indeed they drew upon their
own knowledge of the incident and instead cross-examined the persons charged. ………”
[Emphasis is ours]
58. The learned counsel for
the plaintiff also invited our attention to a Judgment of the Supreme Court in THE MANAGING DIRECTOR,
U.P.WAREHOUSING CORPN. Vs. VIJAY NARAYAN VAJPAYEE [1980 SC 840] wherein the Supreme
Court held as under:
“14. ……… The rules of natural
justice in the circumstances of the case, required that the respondent should
be given a reasonable opportunity to deny his guilt, to defend himself and to
establish his innocence which means and includes an opportunity to
cross-examine the witnesses relied upon by the appellant Corporation and an
opportunity to lead evidence in defence of the charge as also a
show-cause notice for the proposed punishment. Such an opportunity was denied
to the respondent in the instant case. Admittedly, the
respondent was not allowed to lead evidence in defence. Further, he was not
allowed to cross-examine certain persons whose statements were not recorded by
the Enquiry Officer (opposite party 1) in the presence of the respondent. There
was controversy on this point. But it was clear to the High Court from the
report of enquiry by the opposite party 1 that he relied upon the reports of
some persons and the statements of some other persons who were not examined by
him. A regular departmental enquiry takes place only after the charge-sheet is
drawn up and served upon the delinquent and the latter’s explanation is
obtained. In the present case, no
such enquiry was held and the order of dismissal was passed summarily after
perusing the respondents’ explanation. The rules of natural justice in this
case, werehonoured in total breach. The impugned order of dismissal was thus bad in
law and had been rightly set aside by the High Court.”
[Emphasis is ours]
Some more decisions of
the Supreme Court as well as the High Courts in the country were also brought
to our notice on this aspect holding to the same effect and therefore they need
not be referred to here as there can be no dispute as to the law laid down by
the Supreme Court. We therefore feel that it is not necessary to dilate further
on this issue.
59. The learned counsel for
the defendants, on the other hand has drawn the attention of this Court to a
Judgment of the Supreme Court in DEBOTOSH PAL CHOUDHURY
Vs. PUNJAB NATIONAL BANK [supra] and reiterated his
arguments that the need for compliance of the principles of natural justice
would depend upon the facts and circumstances of each case. Therein, the Supreme
Court held thus:
“7. So far as Regulation
6(18) of the Regulations is concerned, it provides that
“the inquiring authority
may, after the completion of the production of evidence, hear the presenting
officer, if any appointed, and the officer/employee, or permit them to file
written briefs of their respective cases within 15 days of the date of
completion of the production of evidence, if they so desire”.
(emphasis supplied)
On 22-9-1988 the
petitioner while concluding his defence, stated that he did not intend to say anything further provided
no written brief was filed by the presenting officer, which if done, should be
brought to his notice to enable him to submit the counter-statement, if
necessary. The enquiry officer then gave two days’ time to the presenting
officer as well as to the petitioner to file written briefs, if any. No written
brief was filed by the presenting officer and hence the question of filing a
written brief by the petitioner did not arise at all and thus there is no
violation of Regulation 6(18). However, the records disclose that a written
brief was, in fact, filed by the petitioner within the time given by the enquiry
officer. Having participated
fully in the enquiry and on the sitting held on 22-9-1988 having confirmed that
he did not intend to say anything further, it would not be appropriate for the
petitioner to contend that he had not been given any reasonable opportunity to
put forth his case.”
60. There is no quarrel as
to the law laid down by the Supreme Court in the decisions relied on by the
learned counsel on either side. We also agree with the submission of the
learned counsel for the defendants that the application of the principles of
natural justice would vary from case to case and depends upon the facts and
circumstances of each case. However, we are in a hurry to sound a caveat that
under any circumstances, the principles of natural justice cannot be violated
so as to meet the ends of justice although strict rules of evidence and
procedure would not apply to departmental proceedings unlike in criminal
trials.
61. As can be seen from the
records, it is apparent that the plaintiff was not allowed to lead evidence in defence and was also not allowed
to cross-examine witnesses whose statements were recorded by the CBI but were
simply relied on by the defendant 2 as the Commissioner while drawing up his
report dated 24.10.2000. Ex facie, there is a dispute on the allegations made against the plaintiff.
It is therefore forthcoming from the record that the report of enquiry
submitted by the defendant 2 was merely based on the statements of some other
persons who were not examined by him. Usually, a regular departmental enquiry
takes place only after charge-sheet is drawn up and served upon the delinquent
and the latter’s explanation is called for. In contrast, in the present case,
no enquiry of such kind and nature was held and the enquiry report was submitted
thereon simply recording the statements of the plaintiff and placing reliance
upon the statements recorded by the CBI in its preliminary enquiry. Basing on
such enquiry report dated 24.11.2000 of the defendant 2, the impugned order
dated 05.12.2000 was passed summarily without duly following the rule of
principles of natural justice. This aspect was not considered by the Court
below in the proper perspective and erroneously recorded the findings in favour of the defendants.
62. In view of the elaborate
discussion made hereinabove and keeping in mind the law laid down by the
Supreme Court in a series of decisions on the point including the Constitution
Bench Judgment in STATE OF MADHYA PRADESH
Vs. CHINTAMAN SADASHIVA WAISHAMPAYAN [supra], we are therefore of the firm view that no
independent enquiry was made by the defendant 2 to find out as to whether the
plaintiff was really guilty of the charges of match fixing and that no
opportunity of cross-examining the witnesses whose statements were relied upon
by him was afforded to him and thereby the rule of principles of natural
justice was violated throughout the enquiry proceedings conducted by defendant
2 as a Commissioner while conducting the subject enquiry. We accordingly
answer the Point Nos.5 and 6 in favour of the plaintiff and against the defendants.
POINT NO.7:
63. The
learned counsel for the plaintiff pointed out that the impugned order dated
05.12.2000 is also in utter violation of Rule 38 of the Rules and Regulations
in as much as it was passed by a Committee of two Members but not by a
Committee of three Members as specifically envisaged therein. The learned
counsel for the plaintiff further drew the attention of this Court to the
letter dated 04.12.2000 addressed by the third Member, namely, Sri Kamal Morarka,
to the President of the Board, who is one of the Members of the so-called
Committee, whereby he sought some more time to go through the report of the CBI
as well as the report of defendant 2. The learned counsel for the plaintiff
therefore has contended that notwithstanding the said letter, the other two
Members went ahead in conducting the Meeting on 05.12.2000 and passed the
impugned order on that day itself in the absence of the third Member for the
reasons best known to it which are not ex
facie apparent
in the impugned order and therefore the impugned order dated 05.12.2000 is
illegal, invalid and ultra vires and
cannot be countenanced.
64. The
learned counsel for the defendants on the other hand has contended that a meeting
was convened on 28.11.2000 by all the three Members and the meeting held on
05.12.2000 was convened within the frame work of the Rules and Regulations of
the Board and it was totally immaterial whether the third Member of the
Committee was present during the course of hearing or not. The learned counsel
for the defendants therefore justified the action of the Committee in passing
the impugned order dated 05.12.2000.
65. It
is pertinent to notice a portion of Rule 38 of the Rules and Regulations which
deals with the quorum of the Committee to deal with the so-called subject
enquiry, it reads as under:
“38. MISCONDUCT
AND PROCEDURE TO DEAL WITH:
………
(ii) ……… The
President shall constitute a Committee of three persons of whom the President
shall be one. The explanation from offending player
shall be placed before such Committee. If after receipt of the explanation from
the offending player, Committee is satisfied that no steps are necessary to be
taken, the Committee may not take any action. If the Committee is of the
opinion that the explanation submitted by the offending player is not
satisfactory, the Committee shall convene a meeting and shall give reasonable
notice of the date, place and time of the meeting to the offending player to
attend in person before the Committee with such evidence as he may have to lead
before it. The Committee shall at such meeting hear the offending player, and
the evidence he may lead or produce and thereafter take such action as the
Committee may in its discretion deem ft.
In conducting the enquiry against the offending player, the Committee shall
follow the rules of Natural Justice. ………
[Emphasis
is ours]
A careful reading of this part of the Rule
manifestly reflects that throughout the phrase ‘the Committee’ is used. Obviously
‘the Committee’ consisted of three Members including the President of the
Board. That
being the purport of its own Rules and Regulations, the Committee could not be
permitted to convene a meeting in the absence of any of it’sMembers. If
for any reason, such a meeting was convened in contravention of the Rule, the
result of such meeting being not in consonance with that Rule should not be
permitted to be acted upon being illegal and a nullity in the eyes of law. The
Court below failed to consider the controversy on this point in the right
perspective. It is therefore clear that the impugned order dated 05.12.2000
given based on the illegal report dated 24.11.2000 of the defendant 2 having
been passed by the Committee consisting only two Members is illegal, invalid,
arbitrary and nullity in the eyes of law.
66. The
learned counsel for the plaintiff has further placed reliance on a Judgment of
the Supreme Court in MARATHWADA UNIVERSITY
Vs. SESHRAO BALWANT RAO CHAVAN [(1989) 3 SCC 132] in support of the said
contention. Therein, the Supreme Court held:
“20. Counsel for the
appellant argued that the express power of the Vice-Chancellor to regulate the
work and conduct of officers of the University implies as well, the power to
take disciplinary action against officers. We are unable to agree with this
contention. Firstly, the power to regulate the work and conduct of officers
cannot include the power to take disciplinary action for their removal.
Secondly, the Act confers power to appoint officers on the Executive Council
and it generally includes the power to remove. This power is located under
Section 24(1)(xxix) of the Act. It is, therefore, futile
to contend that the Vice-Chancellor can exercise that power which is conferred
on the Executive Council. It is a settled principle that when the Act
prescribes a particular body to exercise a power, it must be exercised only by
that body. It cannot be exercised by others unless it is delegated. The law must also
provide for such delegation. Halsbury’s Laws of England (Vol. I, 4th end., para 32) summarises these principles as
follows :
“32. Sub-delegation of powers.— In accordance with the
maxim delegatus non potest delegare, a statutory power must
be exercised only by the body or officer in whom it has been confided, unless
sub-delegation of the power is authorised by express words or
necessary implication. There is a strong presumption against construing a grant of
legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the
same may be said of any power to the exercise of which the designated body
should address its own
mind.” [Emphasis is ours]
From this Judgment, it
is palpable that while making a reference to Halsbury’s Laws of England the Supreme
Court succinctly held that when the Act prescribed a particular body to exercise a power, it
must be exercised only by that body and that it could not be exercised by
others unless it was delegated.
67. In the present case,
where as the Rule 38 clearly postulates that the Committee shall consist of
three Members and that Committee shall conduct the enquiry and convene the
meetings therefore, no material is placed before us to show that there was a
delegation of the power of the Committee to the two Members out of the three
Members to do so. In the absence of it, the action of the Committee consisting
of two Members in passing the impugned order dated 05.12.2000 is against the
Rules and Regulations of the Board and therefore cannot be countenanced more
particularly in the light of the request made by the third Member to provide
him some more time to go through the CBI report as well as the report submitted
by defendant 2. In this regard, it is useful to go through the letter dated
04.12.2000 addressed by the third Member,
namely, Sri Kamal Morarka to
the President of the Board, which reads as follows:
“I
am in receipt of your notice dated today for the meeting of the Disciplinary
committee tomorrow at Chennai.
I
am unable to reach Chennai tomorrow as I have to travel to Delhi and
Rajasthan. Kindly
fix a fresh date for the meeting convenient to all the three members.
You
will kindly appreciate that a decision taken by two members of the Board would
not inspire confidence and should be avoided.
I
know there is tremendous media pressure on you. However, we
must also keep in view that the Government ordered the CBI enquiry in April
2000 CBI took six months to make out the report quite different from the
expectations inasmuch as they themselves have said there is no evidence of
match fixing. The
report was given toMr.K.Madhavan for
analysis which he has submitted only around 24th to
26th November
2000. As
a member of the committee, I got Mr.Madhavan’s report
only on 27thNovember 2000.
Since
the CBI report runs into 162 pages, Mr.Madhavan’s report
with enclosures runs into approx. 250 pages, I
do not understand how a three man committee is supposed to expeditiously act on
such a voluminous document unless of course we have a pre-determined mind and
want to act in haste.
I
do not think an institution should act in haste. Nothing
will be lost if the matter is given some more consideration especially in view
of the fact that the concerned players are already under suspension.”
[Emphasis
is ours]
A reading of the letter
reflects that the third Member sought a fresh date for convening the meeting;
that, in fact, the CBI took six months to conclude its preliminary enquiry and
came to a conclusion that there was no evidence of match fixing. The third
Member expressed his opinion in the letter as to how a three man committee was
supposed to expeditiously act on such a voluminous document unless of course
there was a pre-determined mind on the enquiry and to act in haste in that
direction. He concluded his letter by stating that nothing would be lost if the
matter was given some more consideration as the players were already under
suspension.
68. In
spite of this specific request from the third Member to defer the meeting and
fix a fresh date therefor in
order to enable him to give some more time to go through the voluminous reports
of the CBI as well as the defendant 2, the other two Members went ahead with
the meeting and passed the impugned order in a mechanical and casual manner not
only in the absence of the third Member but also ignoring his specific request
for deferring the meeting and fixing a fresh date therefore in that behalf.
No reasons are forthcoming from the record as to how the Committee consisting
of two Members convene the meeting in the absence of the third Member despite
his request to defer the same. This stubborn attitude on the part of the two
members of the Committee suggests us to draw an inference against the
defendants and in favour of the plaintiff. These aspects were not gone into by
the Court below thoroughly due to which erroneous
findings were recorded by it. If these facts and circumstances of the case are
tested on the anvil and touchstone of the law laid down by the Supreme Court in MARATHWADA UNIVERSITY
Vs. SESHRAO BALWANT RAO CHAVAN, the sequitur is that the impugned
order dated 05.12.2000 passed by an incompetent Committee in rigorous violation
of the Rules and Regulations of the Board cannot be countenanced being illegal,
invalid and arbitrary.
69. Having due regard to the
discussion made supra and bearing in mind the
law laid down by the Supreme Court on this point, we are of the considered view
that the impugned order dated 05.12.2000 is illegal, invalid and arbitrary and
therefore no adverse consequences would flow therefrom against the plaintiff.
We accordingly answer Point No.7 infavour of the plaintiff and
against the defendants.
POINT NO.8:
70. The
learned counsel for the plaintiff has argued that as the appointment of
defendant 2 is illegal, invalid and ultra vires of
the Rules and Regulations of the Board, the entire enquiry proceedings
conducted by the defendant 2 and the report dated 24.11.2000 arisen thereform are
vitiated by illegality and the same are nullity in the eyes of law which cannot
be acted upon in any manner and the same are liable to be set aside. The
learned counsel for the plaintiff also has contended that the impugned order
dated 05.12.2000, having been passed merely placing reliance on the illegal
enquiry report dated 24.11.2000, is also in utter violation of the Rule 38 in
as much as it was passed by the Committee consisting of two persons but not by
a Committee of three persons as specifically envisaged therein. The learned
counsel for the plaintiff thus asserted that the enquiry report dated
24.11.2000 of defendant 2 and the impugned order dated 05.12.2000 passed by the
incompetent Committee consisting
of two Members are illegal, arbitrary, invalid and nullity in the eyes of law
and the cannot be acted upon and thereby no adverse consequence would flow therefrom against
the plaintiff. The learned counsel has also attacked the impugned order dated
05.12.2000 imposing the punishment as detailed therein on the ground that there
was no valid and legal basis for doing so in the light of the other submissions
and that the same is liable to be set aside on this score also.
71. The
learned counsel for the defendants has pointed out that after the receipt of
the report dated 24.11.2000, the Committee consisting of three Members, in
fact, convened a meeting on 28.11.2000 and afforded a full and complete
opportunity to the plaintiff to put forth his case before it and thereafter
only, the Committee consisting of two Members passed the impugned order dated
05.12.2000 which again is in accordance with the amended Rules and Regulations
of the Board and therefore no violation of any prescribed procedure can be
complained of; and that both the report dated 24.11.2000 and the impugned order
dated 05.12.2000 are legal and valid, which aspect was considered and upheld by
the Court below and therefore the same finding does not warrant interference
from this Court in this appeal.
72. At
the cost of repetition, we may state here that we have already recorded
findings supra on
Point Nos.2 to 7 in favour of the plaintiff inter alia holding
that the Board got no power to appoint defendant 2 as the Commissioner to
conduct the subject enquiry against the plaintiff under its unamended Rules
and Regulations which were in force on 29.08.2000; that the appointment of
defendant as the Commissioner is illegal, invalid and ultra vires of
the Rules and Regulations of the Board; that the defendant 2 as the
Commissioner was not adept and unsuitable to conduct the subject enquiry on the
ground that he was an Advocate who was advising the Board at the relevant point
of time that he lacked experience in conducting the kind and nature of subject
enquiry; that the defendant 2 violated the principles of natural justice during
the course of enquiry; that the defendant had not conducted any independent
enquiry to prove the allegation of match fixing against the plaintiff; and that
the impugned order dated 05.12.2000 is illegal, invalid and arbitrary having
been passed by an incompetent Committee consisting of two Members instead of three
Members.
73. In
the light of these findings recorded by us hereinabove which are in favour of
the plaintiff and against the defendants, the effect of the enquiry report
dated 24.11.2000 submitted by the defendant 2 and the impugned order dated 05.12.2000
passed by the Committee consisting of two Members can, under the above
circumstances, be said to be that they have no legal force in the eyes of law
being nullity, illegal and invalid.
74. In
this context, reference may be made to a Judgment of the Supreme Court in KIRAN SINGH Vs. CHAMAN PASWAN [AIR
1954 SC 340]. Therein, the Supreme
Court illuminatingly explained the effect of the proceedings which are nullity
in the eyes of law, it reads as follows:
“6. …… It is a fundamental
principle well established that a decree passed by a court without jurisdiction
is a nullity, and that its invalidity could be set up whenever and wherever it
is sought to be enforced or relied upon, even at the stage of execution and
even in collateral proceedings.
A defect of jurisdiction, whether it is pecuniary or territorial, or whether it
is in respect of the subject-matter of the action, strikes at the very
authority of the court to pass any decree, and such a defect cannot be cured
even by consent of parties. If the question now under consideration fell to be determined
only on the application of general principles governing the matter, there can
be no doubt that the District Court of Monghyr was coram non judice, and that its judgment
and decree would be nullities. The question is what is the effect
of Section 11 of the Suits Valuation Act on this position.”
[Emphasis is ours]
A perusal of this
Judgment inter alia clearly demonstrates
that the proceedings which are nullity in the eyes of law cannot be cured even
by the consent of parties. In the present case, the report dated 24.11.2000 of
the defendant 2 and the impugned order dated 05.12.2000 being nullity in the
eyes of law cannot be cured. Therefore no punishment can be inflicted upon the plaintiff
on the basis of such nullity proceedings.
75. The learned counsel for
the plaintiff has also drawn our attention to the judgment rendered by one of
us (AM,J) in THE HOSHIARPUR CENTRAL
Vs. PRESIDING OFFICER, LABOUR COURT [(2004) 138 PLR 878]. Therein, it was held
thus:
“8. ……… He had made entry
into the service of the petitioner through back door method. It has been held
by a Division Bench of this Court in Brij Bhushan’s case
[(1998-2) 119 PLR 838] that the prayer for reinstatement by a back door
appointee may be refused even though the termination of the service of such an
employee may have been brought about without compliance of the provisions
contained in Section 25-F or 25-G of the Act. In view of the dictum of the Divison Bench, I feel no hesitation in
holding that the respondent-workman has no right to reinstatement into service
of the petitioner.”
[Emphasis is ours]
Taking a cue from the
said judgment, the learned counsel for the plaintiff has contended that as the
initial appointment of defendant 2 as the Commissioner itself was not in
accordance with the Rules and Regulations of the Board, his subsequent actions
are tainted with illegality and are null and void in the eyes of law.
76. The learned counsel for
the plaintiff has also placed reliance on a Judgment
of the Supreme Court PRAMOD KUMAR Vs. U.P. SECONDARY EDUCATION SERVICES COMMISSION
[(2008) 7 SCC 153] to assert that an illegality cannot be regularized when the
statute or rules clearly expresses so. Therein, the Supreme Court held thus:
“18. If the essential
educational qualification for recruitment to a post is not satisfied,
ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is
contrary to the statute/statutory rules would be void in law. An illegality
cannot be regularised, particularly, when the statute in no unmistakable term says so. Only an irregularity can
be. [See Secy., State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1], National Fertilizers
Ltd. v. Somvir Singh [(2006) 5 SCC 493] and Post Master General, Kolkata v. Tutu Das (Dutta)(2007) 5 SCC 317.]”
[Emphasis is ours]
It is therefore clear
from this that the well established principle of law is that an appointment
made contrary to the statutory provisions or the rules and regulations would be
void in law and that such an illegality cannot be regularised, more particularly,
when such statute speaks of so in no unmistakable term.
77. Coming to the present
case, it is now established from the evidence on record that the appointment of
defendant 2 as the Commissioner was contrary to the Rules and Regulations of
the Board and is therefore without jurisdiction, illegal, invalid and ultra vires, and that the report
dated 24.11.2000 submitted by him is equally illegal and invalid and thus, the
impugned order dated 05.12.2000 passed by a Committee consisting of two Members
instead of a Committee consisting of three Members, basing on such illegal
report is similarly illegal, invalid and null and void in the eyes of law.
78. In view of the foregoing
discussion and placing reliance on the case law referred to hereinabove on this
point, we are of the considered view that both the enquiry report dated
24.11.2000 of defendant 2 and the impugned order dated 05.12.2000 of the Committee
consisting of two Members are, illegal, invalid and null and void in the eyes
of law and cannot, under any stretch of imagination, be countenanced and acted
upon. We answer Point No.8 accordingly in favour of the plaintiff and
against the defendants.
POINT NO.9:
79. The
learned counsel for the plaintiff has submitted that the plaintiff is entitled
to seek the reliefs as
specifically prayed for in the suit in the light of the submissions made
hereinabove on the other contentious points and therefore prayed that the
appeal is liable to be allowed by duly setting aside the impugned judgement and
decree dated 27.08.2003 passed by the Court below.
80. On
the contrary, the learned counsel for the defendants has volubly contended that
as the suit itself is not maintainable, the plaintiff is not legally entitled
to seek any relief from this Court as the Court below considered all the
aspects of the matter minutely and ultimately dismissed the suit. The learned
counsel for the defendants has therefore urged this Court to dismiss the appeal
affirming the Judgment and decree passed by the Court below.
81. In
the light of the above prayers sought for by the plaintiff and in view of the
contentions of the respective parties, we have given our anxious consideration
to the lengthy arguments put forth before us by the learned counsel on either.
We have also meticulously looked at the report dated 24.11.2000 of the
defendant 2 submitted to the Board and the order dated 05.12.2000 passed by the
Committee consisting of two Members of the Board. We
have also carefully gone through the voluminous material placed on record
including the impugned Judgment and decree passed by the Court below. We have
also dealt with the various points that have arisen for our consideration and
decision and, indeed, recorded our findings on each of such points after having
examined the matter elaborately vis-Ã -vis the evidence brought on record
coupled with more particularly the law laid down by the Supreme Court on the points.
It is therefore obvious that the Court below committed a grave error in
evaluating and appreciating the evidence and material brought on record and in
recording its findings on the Issues framed by it and thus erroneously
dismissed the suit filed by the plaintiff. In the light of this factual and
legal scenario obtaining in the matter, as discussed supra, we
have no hesitation in our mind to record a finding that the plaintiff is
entitled to all the reliefs as
prayed for in the suit and therefore, the suit as framed and instituted before
the Court below is liable to be allowed. We accordingly answer Point No.9 in
favour of the plaintiff and against the defendants.
POINT NO.10:
82. In
the result, the Judgment and decree dated 27.08.2003 passed by the learned II
Additional Chief Judge, City
Civil Court, Hyderabad,
in O.S.No.10 of 2001 is hereby set aside. Consequently, the order dated
05.12.2000 passed by the defendant 1 debarring the plaintiff from playing any
cricket matches conducted or authorized by ICC/BCCI or affiliated associations
and also debarring him from holding any position in ICC/BCCI or any of its
affiliated associations for life commencing from 5th December,
2000 are set aside. Apart from the above, the said order of Defendant 1-BCCI holding
that the plaintiff will not be eligible for any Benefit Matches
allotted/conducted by the BCCI or its affiliated members and, further directing
the forfeiture of BCCI’s contribution
to his Benevolent Fund accrued as on the date of the said order shall also
stand set aside.
The
appeal is accordingly allowed with costs.
-------------------------------------------
JUSTICE ASHUTOSH MOHUNTA
---------------------------------------------------
JUSTICE G. KRISHNA MOHAN REDDY
per HONOURABLE SRI JUSTICE
G.KRISHNA MOHAN REDDY
I respectfully agree with the findings arrived at by my learned
brother. In addition I add as
follows:
This case is one best example of a player wriggling out of the
serious allegations of match fixing, betting etc. made against him mainly
because of the inaction of the Board (BCCI) to take appropriate action as per
the procedure established by law. Making allegations
against anybody is one thing whereas proving those allegations, which requires
placement of necessary evidence which can be substantiated, is another thing.
Eventually the Board could not establish as to whether the player is guilty of
the allegations made against him. Non-proving of the
allegations does not amount to whether guilty or not guilty of the charges
whereas it only amounts to non-proving of the charges. However the ultimate
decision of the Board, which does not have the support of sound evidence, is
unwarranted. The circumstances of the
case tell about the highly callous and arbitrary action of the Board, callous
in the sense its omission or inaction to deal with such a serious matter of
national importance following established principles of law together with the
principles of natural justice and arbitrary in the sense it acted, as can be
inferred from the record, with the sole intention of punishing the plaintiff
having failed to follow the procedure established by law and not giving him an
opportunity to defend himself and thus misusing the unfettered powers vested in
it exhibiting as if that it’s decision whether rational or irrational should
not be challenged and should be implemented. It also might be that
the Board acted in posthaste under self-imposed compulsion in view of the
existence of various circumstances then. This monopolized, unreasonable and
whimsical attitude of the Board is highly deprecated. The sole motive of the
Board should be to promote the game carrying out its mission or purpose
honestly and meaningfully and also to punish such players who involve in such
grave activities which definitely destroy the spirit of the game. The Board has to dispel
any such criticisms that may be pointed out against it. Inaction of the Board
may cause more damage than a player who involves in such serious activities can
do to the game.
-------------------------------------------
JUSTICE ASHUTOSH MOHUNTA
---------------------------------------------------
JUSTICE G. KRISHNA MOHAN REDDY
DATED 8th November, 2012
MsnrO/YCR
