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 Oneday 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 point3 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. He is guilty of unbecoming conduct and misconduct as a national level player in maintaining such frequent contacts with bookies/punters. 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.

ii)

iii)

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
Member-Disciplinary

Sd/ Dr.A.C.Muthaiah
Disciplinary Committee ChairmanCommittee

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. 5. For the sake of convenience, the parties herein are referred to as The suit was instituted by the plaintiff inter alia seeking the

arrayed in the suit. 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 198485. 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). Societies It is pleaded that the defendant 1 being the Board is a society Registration Act, 1860 which is required to be registered at Madras (Chennai) on 28.11.1940 under the provisions of the 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) effect: 7.(b). It is stated that the suit filed by the plaintiff is not maintainable The Defendant 1/the Board, filed its written statement specifically

denying all the material averments made which inter alia reads to the following

either in law or on the facts of the case for want of misjoinder and/or nonjoinder 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 body registered in accordance with the provisions of independent

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.

7. 8. 9.

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? Whether this Court has no territorial jurisdiction? Whether the plaintiff is entitled for the declarations prayed for? 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)

4)

5) 6)

7)

8)

9) 10) 11)

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? 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? Whether the defendant 2 had followed the rule of principles of natural justice during the course of entire enquiry? 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? 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? 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? Whether the judgment and decree passed by the Court below are liable to be set aside consequently? Whether the plaintiff is entitled to the reliefs prayed for in the suit? 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 governmentowned 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 misjoinder 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

(iii)

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. (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 VicePresident 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 highprofile 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 of the Supreme Court in THE MANAGING DIRECTOR,

Judgment

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 showcause 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 crossexamine 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 ViceChancellor 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 findings supra on Point Nos.2 to 7 in favour of the

recorded

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-à-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

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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.

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JUSTICE ASHUTOSH MOHUNTA

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JUSTICE G. KRISHNA MOHAN REDDY

DATED 8th November, 2012 MsnrO/YCR

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