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TMI Blog2011 (9) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering the popularity of the game of cricket, these games were to be televised. Telecasting of these games was expected to fetch a good income to BCCI and the firm entrusted with the telecasting of these games, and therefore, the rights for telecasting were auctioned by first respondent through a bidding process for an appropriate price. 3. In April 2010, the first respondent received a complaint from a bidder alleging breach of confidentiality against the petitioner. The petitioner was therefore, suspended from his position on 25.4.2010. (a) He was served with a show cause notice dated 25.4.2010 inter-alia alleging/accusing him of (i) accepting multi-million dollar kickback while assigning the telecasting rights for IPL matches; (ii) attempting to rig the bids for the two new IPL teams-that were auctioned the previous month; (iii) having proxy stakes in IPL teams; (iv) entering into transactions with rank strangers against the mandate of the Governing Council of the IPL; (v) helping family members in benefiting from the IPL contracts. (b) Thereafter another show cause notice was issued to him on 6.5.2010 which alleged inter-alia that he was seeking to create a parallel cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called and he be reinstated, the three show cause notices be directed to be withdrawn, and the decision to refer the matter to the Disciplinary Committee be also directed to be recalled. Alternatively he prayed that the first respondent be directed to appoint a mutually acceptable and an independent person or panel to consider the replies of the Petitioner to the show cause notices, and to decide whether the allegations are required to be referred to the Disciplinary Committee or the matter should be closed. 7. The petitioner raised two issues in this petition. (i) The first ground of objection was that the Committee was not validly constituted. This was on the footing that the rules and regulations of the first respondent society are a matter of contract amongst its members, and the Committee should be constituted strictly in accordance with the particular rule. The above referred rule 1 (q) provides for a Disciplinary Committee consisting of the President and two other persons. Since the President had recused himself from the Committee, the Disciplinary Committee will have to either wait until the next President is elected so that the committee is reconstituted after including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of the High Court by its order dated 5.4.2011. This order is challenged in the third CC No. 11545/2011. Since all these petitions are basically arising out of the same controversy, they have been heard and are being decided together. 11. Shri Ram Jethmalani, learned Senior Counsel and Shri Vinod Bobde, learned Senior Advocate have appeared for the petitioner. Shri Aryama Sundaram, learned Senior Advocate has appeared for the first Respondent. Shri Ranjit Kumar, Senior Advocate has appeared for Shri N. Srinivasan, Secretary of first respondent. 12. As stated above, the objections of the petitioner to the constitution of the Committee are two fold. Firstly, the Committee was not validly constituted and secondly, it suffers from institutional bias. As far as the first objection is concerned, Shri Jethmalani submitted that under the above rule 1 (q), the Disciplinary Committee can consist only of the President and two other persons. A society is constituted as a matter of contract amongst the members who form the society. It is expected to function as per the rules and regulations of the society which constitute the terms of contract amongst its members. In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time he did not raise any objection to the other members of the Committee, namely Shri Arun Jaitely and Shri Chirayu Amin. In paragraph 3 (C) of this letter he stated as follows:- "C. It is submitted that it is not my endeavor to create any technical hurdle in the process and no hurdle shall be caused if an independent body constituting of other members of the Board is formed. It is submitted that there are only 14 members of the Governing Council and hence BCCI can choose and appoint independent persons to investigate into these allegations........" 16. In his Writ Petition No.1370 of 2010, the petitioner joined S/Shri Chirayu Amin and Arun Jaitely and Jyotiraditya Scindia as respondent no.4, 5 and 6. In para 4 of this Writ Petition, he stated as follows:- "4. Respondent Nos.3 (sic), 4 and 5 and 6 are members of the Disciplinary Committee of Respondent No.1 ("the Disciplinary Committee"). This Disciplinary Committee has been entrusted with the function of examining the allegations made against the Petitioner, in the three Show Cause Notices, issued to the Petitioner. The Petitioner is challenging the constitution, composition and continuation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. 19. As far as this aspect is concerned, the respondents maintain that they were kept in dark about the agreement/arrangement that the petitioner entered into with the concerned parties from whom he is alleged to have received kickbacks. In any case, the three members of the Committee were not present in the meeting of Governing Council of IPL held on 11.8.2009 when the disputed agreements were allegedly approved. And to take the argument at its best, they were present in the three subsequent meetings referred by the petitioner. These agreements were approved by the General Body on 2.9.2009. The further action was also approved in the Governing Council meeting of 25.6.2010 and Special General Meeting of 3.7.2010. The question is whether the participation by these members in these three meetings would disqualify them from being the members of the Disciplinary Committee. 20. In view of these objections to these three members of the committee, we asked Shri Jethmalani, whether he was objecting to these members because they were members of the Governing Council in which case some other members from the General Body could be asked to be members of the Committee. Shri Jethmalani, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon]. (1968) 3 WLR 694 at 707 We may mention that Shri Jethmalani drew our attention to the recent development in English Law in this behalf, where `real danger of bias' is no longer considered to be the test, but the relevant consideration is as to whether there was real possibility that the tribunal was biased. He referred to the judgments in the cases of R. Vs. Gough reported in (1993) 2 All ER 724, and Porter Versus Magill reported in (2002) 1 ALL ER 465. 22. Shri Jethmalani and Shri Bobde drew our attention to a judgment of House of Lords in Mclnnes Vs. Onslow Fane reported in (1978) 3 All ER 211 wherein three types of cases are discussed, viz. (i) application cases; (ii) inspection cases; and (iii) forfeiture cases. It was submitted that principles of natural justice have to be followed in any case in the category of forfeiture cases. In the present case the reputation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, J. noticed this difficulty and observed in Maclean's case1 (1929) 1 Ch. 602 thus : "In many cases the tribunal is necessarily entrusted with the duty of appearing to act as prosecutors as well as that of judges; for there is no one else to prosecute. For example, in a case where a council is charged with the duty of considering the conduct of any member whose conduct is disgraceful and of expelling him if found guilty of such an offence, it constantly occurs that the matter is brought to the attention of the council by a report of legal proceedings in the press. The member is summoned to appear before the council. The council's duty is to cause him to appear and to explain his conduct. It may be that in so acting the council are the prosecutors. In one sense they are; but if the regulations show that the council is bound to act as I have mentioned and to that extent to act as prosecutors, it seems to be clear that the council is not disqualified from taking the further steps which the rules require." Though it is advisable for a club to frame rules to avoid conflict of duties, if the rules sanction such a procedure, the party, who has bound himself by those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of necessity in the present case. 26. Shri Jethmalani drew out attention to a recent judgment of this Court in Justice P.D. Dinakaran Vs. Hon'ble Judges Inquiry Committee and ors reported in [2011 (6) SCALE 97], where this Court accepted the grievance of apparent bias against a Jurist Member of the Inquiry Committee and requested the Chairman of Rajya Sabha to nominate another jurist in his place in the inquiry against the petitioner. Shri Sundaram however, pointed out that the committee was constituted as a matter of Constitutional requirement where the benchmark required with respect to fairness will be quite high. In the present matter we are concerned with the question of likely unfairness on the part of members of a domestic tribunal of a society, and that context has to be kept in mind. 27. We have noted the submissions of the rival parties. The objection of Shri Jethmalani to the forming of the Disciplinary Committee was on the basis of rule 1 (q). When we read this rule we find that the rule states that the Board shall at every Annual General Meeting appoint a Committee consisting of three persons. The President shall be one of them and the function of the Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other........" 29. We may as well profitably refer to a judgment of this Court in the case of State of A.P. and another Vs. Dr. Rahimuddin Kamal reported in [AIR 1997 SC 947]. In that matter this Court was concerned with Rule 4(2) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1961, where the expression `shall' had been used in the Rules, making it obligatory upon the part of the Government, to examine the records, consult the Head of the Department and Vigilance Commission and then pass an appropriate order. In that case the order of removal from service was passed in accordance with law and after conducting appropriate inquiry but without consulting the Commission. The Court took the view that the expression `shall' had to be construed as `may' and non consultation with the Commission would not render the order illegal or ineffective. 30. In the instant case the petitioner himself had objected to the President being the member of the Committee. That being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s another matter that the first respondent society is a large body having large resources. If the members or the Managing Committee of a Society receive a complaint of any misconduct on the part of any of its office bearers, surely the subject is expected to be taken up in the General Body Meeting of the Society. These societies are expected to sort out the future course of action with respect to such allegations on their own on the basis of their internal disciplinary mechanism. Merely because all the members of a society have participated in the discussion concerning such allegation, the Society can't be expected to appoint an outsider to hold the disciplinary proceeding. It may not be financially possible as well for such small societies. That apart, only a prima facie opinion is formed in such meetings. Merely because a member has participated in such a meeting he cannot be accused of bias to disentitle him from being appointed on the Disciplinary Committee. 32. We have noted the submissions of the petitioner with respect to his apprehensions. However, as far as the propositions of law are concerned, we cannot take a different view in the present case from the law laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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