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2010 Supreme(Bom) 1307

2011 (2) ALL MR 714
High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. MOHIT S. SHAH & THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD
Lalit Kumar Modi
Versus
The Board of Control for Cricket in India & Others
WRIT PETITION NO. 1909 OF 2010
Decided on : 15-09-2010

Advocates appeared:
For the Petitioner:Ram Jethmalani, Mahesh Jethmalani, Aspi Chinoy, Virag Tulzapurkar, Praveen Samdani, Senior Advocates, Venkatesh Dhond, Ankur Chawla, Dhawal Mehta and Gaurav Gopal i/by M/s. Wadia Ghandy & Co., Advocates. For the Respondents:R1, C.A. Sundaram, Senior Advocate, Raman and Akhila Kaushik i/by Thakore Jariwala & Associates, R2 & R3, I.M. Chagla, Senior Advocate, H.N. Thakore and Jyoti Ghag i/by M/s. Thakore Jariwala & Associates, R4,
T.N. Subhramanium, Senior Advocate, Vikram Sathye and Yahya Ghogari & Associates, Advocates.

Headnote:Constitution of India - Article 226-Disciplinary enquiry-Against Commissioner of BCCI-Bias-Exclusion of members of committee prayed-Petitioner contended, committee members rescinded contract executed by him held it to be unauthorised and disqualified in ground of bias-Contract rescinded in commercial interest-Rescission totally unrelated to disciplinary enquiry-No material to support allegation of bias-Exclusion refused.-The members of the Governing Council of BCCI or others connected with BCCI cannot be said to have been disqualified on the ground of bias. The decision of BCCI in its commercial interest to rescind the contract with WSG(I) could be the subject-matter of litigation and BCCI may naturally be interested in supporting such a decision. That would not mean that all members of the Governing Council of BCCI would per se be disqualified to hold an enquiry against the petitioner. Even when a public authority holds an enquiry against its officer or employee, the Disciplinary Authority would arrive at some finding in preliminary enquiry. On the basis of such a preliminary enquiry, the Disciplinary Authority would issue a charge-sheet to the delinquent officer. Thereafter, the disciplinary authority would conduct an enquiry itself or through an enquiry officer, and arrive at a finding on whether the delinquent is guilty of the alleged misconduct, after observing the principles of natural justice. Similarly, the Disciplinary Committee will hold an enquiry into the alleged irregularities committed by the petitioner, and a report will be placed before BCCI. Merely because the Governing Council of BCCI has rescinded the contract with WSG(I) albeit on the ground of fraud, it would not mean that BCCI will not be in a position to hold an enquiry against the petitioner in an impartial manner. As held by the Apex Court, there has to be some material on record to support the allegation of bias or apprehension of basis. In fact, in the recent decisions relied upon by Mr. Sundaram, the test adopted is a real danger of basis and not merely an apprehension of bias.

       The allegations of bias made by the petitioner against the members of the Disciplinary Committee of BCCI are not such that they cannot be examined in proceedings which the petitioner may institute, if at all the findings of the Disciplinary Committee and, subsequently, the final decision of BCCI go against the petitioner.

       

JUDGMENT:

(Mohit S. Shah, C.J.)

By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 11th August, 2010 of the Disciplinary Committee of the Board of Control for Cricket in India (for short, 'BCCI'), rejecting the petitioner's request for recusal of certain members of the Disciplinary Committee.

2. Initially, the Disciplinary Committee constituted under Article 32(iv) of the Memorandum, Rules and Regulations of BCCI comprised the following honorary members:-

(1) President of BCCI, Mr. Shashank Manohar,

(2) Vice President of BCCI, Mr. Chirayu Amin (respondent No.2), and

(3) Mr. Arun Jaitley (respondent No.3), a member of Governing Council of BCCI.,

3. The Honorary Secretary of BCCI issued notices dated 26th April, 6th May and 31st May, 2010 to the petitioner in respect of the petitioner's conduct as the Commissioner of the Indian Premier League (IPL). The petitioner replied to the said show-cause notices. The petitioner, by his letter dated 26th May, 2010 to the President, BCCI, Mr. Shashank Manohar, made the following requests:-

"(a) The Hon'ble President of BCCI may consider excluding / recusing himself from the decision making process relating to the Show Cause Notice dated 26.4.2010.

(b) The Hon'ble Honorary Secretary, Mr. N. Srinivasan may also be excluded from any further proceedings in relation to the notice dated 26.4.2010."

In the said letter, the petitioner also requested for appointment of a body comprising of independent persons for adjudicating as well as determining whether the cause shown by him is sufficient or not. His case for comprising the Disciplinary Committee of 'independent persons' was that several decisions taken by him were approved by the Governing Council of IPL and BCCI and, therefore, persons representing affiliated members of BCCI may not be associated with the adjudication of the said Show Cause Notices.

4. The President, BCCI, decided to recuse himself from the Disciplinary Committee, and thereupon, the Governing Council re-constituted the Disciplinary Committee as under:-

(1) Mr. Arun Jaitley, Vice President, BCCI, and President, Delhi Cricket Association (respondent No.3 herein);

(2) Mr. Chirayu Amin, Vice President of BCCI and President, Baroda Cricket Association (respondent No.2 herein); and

(3) Mr. Jyotiraditya Scindia, President, Madhya Pradesh Cricket Association (respondent No. 4 herein).

5. Thereafter, the petitioner served another letter on BCCI and members of the newly constituted Disciplinary Committee on 6th July, 2010, in which he raised objections with regard to some members of the Disciplinary Committee, particularly with regard to respondent No.2, Mr. Chirayu Amin. The petitioner also filed a Writ Petition in this Court against BCCI, its President, Secretary and Members of the Disciplinary Committee for various reliefs. In this Writ Petition, his allegations against respondent No.2, Mr. Chirayu Amin, were reiterated. With regard to present respondent Nos. 3 and 4 (Mr. Arun Jaitley and Mr. Jyotiraditya Scindia), who were respondent Nos. 5 and 6 in the said Writ Petition, the petitioner stated that he was not making any personal allegations of personal bias or malice against them and the other respondents. The Division Bench, which heard the said Writ Petition, referred to various allegations in the show-cause notices issued to the petitioner and also the petitioner's plea of bias. After hearing the learned counsel for the parties, the Division Bench made the following observations:-

"In this petition, filed under Article 226 of the Constitution of India, a host of reliefs have been prayed for, but having regard to the petitioner's representation dated 6/7/2010, we confined the arguments of the respective parties only on the prayer for reconstitution of the Disciplinary Committee and we made it clear that we are not inclined to consider the other reliefs as prayed for in the petition at such interlocutory stage."

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