REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. 27157 OF 2010
WITH
CC NO. 15249 OF 2010
WITH
SLP(C) No. 11545 OF 2011
Lalit Kumar Modi ...Petitioner
Versus
Board of Control for Cricket in India & Ors. ...Respondents
J U D G E M E N T
H.L. Gokhale J.
These three Special Leave Petitions seek to challenge three orders
passed by three different benches of Bombay High Court, on the proceedings
initiated by the appellant against the first respondent Board of Control for Cricket
in India (hereinafter referred to either as `first respondent' or the `BCCI').
2. The first respondent is a society registered under the Tamil Nadu
Societies Registration Act, 1975. The petitioner, herein, is a member of the first
respondent representing one of its constituent associations. As a part of its
activities, the first respondent had organized a cricket competition under the
banner `Indian Premier League' shortly known as (IPL), and the petitioner was
appointed as the incharge Chairman thereof. Considering the popularity of the
2
game of cricket, these games were to be televised. Telecasting of these games
was expected to fetch a good income to BCCI and the firm entrusted with the
telecasting of these games, and therefore, the rights for telecasting were
auctioned by first respondent through a bidding process for an appropriate price.
3. In April 2010, the first respondent received a complaint from a
bidder alleging breach of confidentiality against the petitioner. The petitioner
was therefore, suspended from his position on 25.4.2010.
(a) He was served with a show cause notice dated 25.4.2010 inter-alia
alleging/accusing him of (i) accepting multi-million dollar kickback while
assigning the telecasting rights for IPL matches; (ii) attempting to rig the bids for
the two new IPL teams-that were auctioned the previous month; (iii) having
proxy stakes in IPL teams; (iv) entering into transactions with rank strangers
against the mandate of the Governing Council of the IPL; (v) helping family
members in benefiting from the IPL contracts.
(b) Thereafter another show cause notice was issued to him on 6.5.2010 which
alleged inter-alia that he was seeking to create a parallel cricket body at
international level (particularly in England) and thereby subvert the present
International Cricket structure. The petitioner sought certain information and
documents from the first respondent in this behalf, but the same were not
furnished.
4. The petitioner sent his reply to the first show cause notice on 15.5.2010
denying the allegations therein. Thereafter, he wrote to Shri Shashank Manohar,
the Honorary President of the first respondent on 25.5.2010 requesting him that
3
he should recuse himself from the decision making process in the interest of
fairness. The petitioner then sent his reply to the second show cause notice on
31.5.2010. The first respondent served him the third show cause notice on the
same day i.e. 31.5.2010 wherein they alleged amongst other things that the
petitioner had committed irregularities and illegalities in the award of the IPL
tenders for the Theatrical Rights. The petitioner replied to this notice on
15.6.2010.
5. Consequent upon the objection raised by the petitioner, Shri
Shanshank Manohar recused himself from the Disciplinary Committee, which was
to decide upon the show cause notices. The first respondent has a disciplinary
committee to deal with the misconducts of its members. It is constituted under
rule 1 (q) of the rules governing the first respondent society. This rule reads as
follows:-
(q) Disciplinary Committee: The Board
shall at every Annual General Meeting appoint a Committee
consisting of three persons of whom the President shall be one of
them to inquire into and deal with the matter relating to any act
of indiscipline or misconduct or violation of any of the Rules and
Regulations by any player, Umpire, Team, Official, Administrator,
Selector or any person appointed or employed by BCCI. The
Committee shall have full power and authority to summon any
person(s) and call for any evidence it may deem fit and necessary
and make and publish its decision including imposing penalties if
so required, as provided in the Memorandum and rules and
Regulations."
6. On Shri Manohar recusing himself from the Committee, Shri
Jyotiraditya Scindia was appointed in his place. The other two members of the
Committee were Shri Chirayu Amin and Shri Arun Jaitely as nominated earlier.
The petitioner filed a Writ Petition bearing No. 1370/2010 in the Bombay High
4
Court, and prayed that the order of suspension be recalled and he be reinstated,
the three show cause notices be directed to be withdrawn, and the decision to
refer the matter to the Disciplinary Committee be also directed to be recalled.
Alternatively he prayed that the first respondent be directed to appoint a
mutually acceptable and an independent person or panel to consider the replies
of the Petitioner to the show cause notices, and to decide whether the
allegations are required to be referred to the Disciplinary Committee or the
matter should be closed.
7. The petitioner raised two issues in this petition.
(i) The first ground of objection was that the Committee was not validly
constituted. This was on the footing that the rules and regulations of the first
respondent society are a matter of contract amongst its members, and the
Committee should be constituted strictly in accordance with the particular rule.
The above referred rule 1 (q) provides for a Disciplinary Committee consisting of
the President and two other persons. Since the President had recused himself
from the Committee, the Disciplinary Committee will have to either wait until the
next President is elected so that the committee is reconstituted after including
the new President therein, or if the Committee is to consist of three persons
other than the President, it should consist of persons who are unbiased and
acceptable to the petitioner.
(ii) The second objection was that the members of the Committee suffered from
an institutional bias. The petitioner could not expect fairplay from the members
5
who have already been party to the decision to initiate the disciplinary action
against the petitioner.
8. This Writ Petition was dismissed by a Division Bench of Bombay High
Court by its judgment and order dated 15.7.2010. The Division Bench rejected
the submission about the defect in the Committee. It held that the substitution
of the President by Shri Jyotiraditya Scindia was acceptable on the basis of the
doctrine of necessity. It repelled the argument with respect to bias, and held
that whatever decision is rendered by the Committee could be challenged by the
petitioner after the decision became available. The Court further held that in
case the petitioner had any grievance against the functioning of any of the
members of the Committee, he may apply to the Committee that such a member
may recuse himself from the Committee. This order has been challenged in the
first SLP (C) No. 27157/2010.
9. Subsequent to the order passed by the Division Bench, the
petitioner applied to the Committee members that they should all recuse
themselves from functioning as members of the Disciplinary Committee. The
Committee rejected that application. It led to the filing of second Writ Petition
by the petitioner in Bombay High Court bearing Petition No. 1909 of 2010. That
petition also came to be dismissed by another Division Bench of Bombay High
Court by its judgment and order dated 15.9.2010. This order is challenged in the
second CC No. 15249/2010.
10. During the course of the calendar year 2010, the first respondent
constituted a regular Disciplinary Committee for 2010-2011, and extended the
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special Committee consisting of Sarvashri Arun Jaitley, Chirayu Amin and
Jyotiraditya Scindia for continuing with the enquiry against the petitioner. The
extension granted to this Committee was challenged by the petitioner by filing
Suit No. 195/2011 on the original side of the Bombay High Court. The notice of
motion moved therein for injunction against the Committee came to be
rejected first by a Single Judge and then in appeal by a Division Bench of the
High Court by its order dated 5.4.2011. This order is challenged in the third CC
No. 11545/2011. Since all these petitions are basically arising out of the same
controversy, they have been heard and are being decided together.
11. Shri Ram Jethmalani, learned Senior Counsel and Shri Vinod Bobde,
learned Senior Advocate have appeared for the petitioner. Shri Aryama
Sundaram, learned Senior Advocate has appeared for the first Respondent. Shri
Ranjit Kumar, Senior Advocate has appeared for Shri N. Srinivasan, Secretary of
first respondent.
12. As stated above, the objections of the petitioner to the constitution
of the Committee are two fold. Firstly, the Committee was not validly
constituted and secondly, it suffers from institutional bias. As far as the first
objection is concerned, Shri Jethmalani submitted that under the above rule 1
(q), the Disciplinary Committee can consist only of the President and two other
persons. A society is constituted as a matter of contract amongst the members
who form the society. It is expected to function as per the rules and regulations
of the society which constitute the terms of contract amongst its members. In
the present case, the rule concerning the Disciplinary Committee required the
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Committee to consist of the President and two other persons. If the President
recuses himself, from being a member of the disciplinary Committee, either the
society should wait until a new President is elected to constitute the new
Disciplinary Committee, or since it is a matter of contract, the Committee be
reconstituted with such persons to whom the petitioner has no objection. Shri
Jethmalani submitted that he has no objection to a Committee of three former
Judges or even a decision by a former Judge of this Hon'ble Court. In his
submission the petitioner had a reasonable apprehension of bias against the
members of the Committee, and therefore a reconstitution of the Committee as
suggested by the petitioner was desirable from the point of view of fair-play.
13. In view of these suggestions, we asked Shri Sundaram, learned
senior counsel for the first respondent, whether the first respondent was
agreeable to accept this suggestion. In deference thereto, Shri Sundaram did
take instructions, but pointed out that the Disciplinary Committee of the first
respondent is required to conduct numerous inquiries. If the first respondent
agrees to a Disciplinary Committee consisting of outsiders in this matter, it may
have to agree to similar request in many such matters, and that would not be
desirable.
14. Shri Sundaram submitted that it is only because of the objection of
the petitioner that Shri Manohar had recused himself from the Committee in all
fairness. In a situation like this, the first respondent had to reconstitute the
Committee by substituting another person in place of the President, and in view
of the serious allegations against the petitioner, the inquiry could not wait for
8
one more year for the next President to be elected. Since, the substitution had
become necessary in view of petitioner's objection, it was not fair on his part to
make any grievances against the reconstituted Committee. This submission of
the first respondent based on the doctrine of necessity has been accepted by the
Bombay High Court in its judgment rendered in the first Writ Petition bearing No.
1370 of 2010.
15. As far as the allegation of bias against the members of the
Committee is concerned, the petitioner had in his letter dated 25.5.2010
objected to Shri Shashank Manohar remaining on the Committee. At that time
he did not raise any objection to the other members of the Committee, namely
Shri Arun Jaitely and Shri Chirayu Amin. In paragraph 3 (C) of this letter he
stated as follows:-
"C. It is submitted that it is not my endeavor to create
any technical hurdle in the process and no hurdle shall be caused
if an independent body constituting of other members of the
Board is formed. It is submitted that there are only 14 members
of the Governing Council and hence BCCI can choose and appoint
independent persons to investigate into these allegations........"
16. In his Writ Petition No.1370 of 2010, the petitioner joined S/Shri
Chirayu Amin and Arun Jaitely and Jyotiraditya Scindia as respondent no.4, 5 and
6. In para 4 of this Writ Petition, he stated as follows:-
"4. Respondent Nos.3 (sic), 4 and 5 and 6 are members
of the Disciplinary Committee of Respondent No.1 ("the
Disciplinary Committee"). This Disciplinary Committee has been
entrusted with the function of examining the allegations made
against the Petitioner, in the three Show Cause Notices, issued to
the Petitioner. The Petitioner is challenging the constitution,
composition and continuation of the Disciplinary Committee. The
Petitioner is also alleging institutional bias against the Disciplinary
Committee. The Petitioner is however making no personal
9
allegation of personal bias or malice against Respondent Nos. 5
and 6."
Thus, it is clear that as far as Shri Jaitely and Shri Scindia are concerned, the
petitioner stated that he was not making any personal allegation of personal bias
or malice against them. He was alleging institutional bias against the members
of the Disciplinary Committee.
17. As far as Shri Chirayu Amin is concerned, all that was additionally
stated against him was that Shri Amin had a 10% share in a party which gave
the bid on behalf of an applicant from Pune. Shri Sundaram pointed out that the
bid of that party was rejected. The only other blame against Shri Amin was that
he succeeded the petitioner as the Chairman of IPL and, therefore, he would be
biased against him.
18. The petitioner denies that he has played any deceit in the matter of
entering into any of the disputed agreements, or that he has received any
kickbacks. The submission of Shri Jethmalani concerning bias was on the footing
that the disputed agreements under which the petitioner is alleged to have made
some 80 million dollars by way of kickbacks, were approved by the Governing
Council of IPL on 11.8.2009. Thus, this was known to all concerned and there
was no deceit on the part of the petitioner, and therefore, there was no
substance in the allegation. Respondents point out that these three members of
the Disciplinary Committee were not present in that meeting, though, they were
present in the subsequent meeting held on 2.9.2009 when these minutes were
approved. Petitioner's allegation of bias is also on the footing that the three
members of the Committee were present in the meeting of the Governing
1
Council of IPL held on 25.6.2010, when it decided to charge the petitioner with
fraud. They were also present in the Special General Meeting of the first
respondent held on 3.7.2010 where the President of first respondent was
authorized to take appropriate civil and criminal action against the petitioner. An
FIR was lodged in pursuance thereto on 13.10.2010. It is therefore contended
that the petitioner has a reasonable apprehension of bias against these three
members that he may not get a fair hearing and an unbiased finding on the
allegations from them.
19. As far as this aspect is concerned, the respondents maintain that
they were kept in dark about the agreement/arrangement that the petitioner
entered into with the concerned parties from whom he is alleged to have
received kickbacks. In any case, the three members of the Committee were not
present in the meeting of Governing Council of IPL held on 11.8.2009 when the
disputed agreements were allegedly approved. And to take the argument at its
best, they were present in the three subsequent meetings referred by the
petitioner. These agreements were approved by the General Body on 2.9.2009.
The further action was also approved in the Governing Council meeting of
25.6.2010 and Special General Meeting of 3.7.2010. The question is whether the
participation by these members in these three meetings would disqualify them
from being the members of the Disciplinary Committee.
20. In view of these objections to these three members of the
committee, we asked Shri Jethmalani, whether he was objecting to these
members because they were members of the Governing Council in which case
1
some other members from the General Body could be asked to be members of
the Committee. Shri Jethmalani, however stated that the appellant was
objecting only to these three members of the Governing Council, and not even to
the other members of the Governing Council. Now, there is no logic as to why
only these three persons can be said to be suffering from institutional bias, and
not the other members of the Governing Council. And, if the other members of
the Governing Council could be members of the Disciplinary Committee, there is
no reason as to why these three members could not be.
21. Shri Jethmalani submitted that we are concerned with reasonable
apprehension of bias. This principle has been accepted by this Court in Manak
Lal Vs. Prem Chand Singhvi reported in [AIR 1957 SC 425], in the context
of an inquiry under the Bar Council Act, 1926. At the end of paragraph 6 this
Court had observed that `actual proof of prejudice in such cases may make the
appellant's case stronger but such proof is not necessary in order that the
appellant should effectively raise the argument that the tribunal was not properly
constituted''. He pointed out that in S. Parthasarthi Vs. State of Andhra
Pradesh reported in [1974 (3) SCC 459], the view taken by the Court was
similar. This Court held that the test of likelihood of bias was based on
reasonable apprehension of a reasonable man fully cognizant of the facts, and
relied upon the leading English judgment in the case of R Vs. Sussex, JJ, ex. p.
McCarthy reported in (1924) 1 KB 256. In paragraph 16 of S. Parthasarthi
this Court has observed as follows:-
"The tests of "real likelihood" and "reasonable
suspicion" are really inconsistent with each other. We think that the
1
reviewing authority must make a determination on the basis of the
whole evidence before it, whether a reasonable man would in the
circumstances infer that there is real likelihood of bias. The Court must
look at the impression which other people have. This follows from the
principle that justice must not only be done but seen to be done. If
right minded persons would think that there is real likelihood of bias
on the part of an inquiring officer, he must not conduct the enquiry;
nevertheless, there must be a real likelihood of bias. Surmise or
conjecture would not be enough. There must exist circumstances from
which reasonable men would think it probable or likely that the
inquiring officer will be prejudiced against the delinquent. The Court
will not inquire whether he was really prejudiced. If a reasonable man
would think on the basis of the existing circumstances that he is likely
to be prejudiced, that is sufficient to quash the decision [see per Lord
Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon]. 1
1. (1968) 3
WLR 694 at 707
We may mention that Shri Jethmalani drew our attention to the recent
development in English Law in this behalf, where `real danger of bias' is no
longer considered to be the test, but the relevant consideration is as to whether
there was real possibility that the tribunal was biased. He referred to the
judgments in the cases of R. Vs. Gough reported in (1993) 2 All ER 724, and
Porter Versus Magill reported in (2002) 1 ALL ER 465.
22. Shri Jethmalani and Shri Bobde drew our attention to a judgment
of House of Lords in Mclnnes Vs. Onslow Fane reported in (1978) 3 All ER
211 wherein three types of cases are discussed, viz. (i) application cases; (ii)
inspection cases; and (iii) forfeiture cases. It was submitted that principles of
natural justice have to be followed in any case in the category of forfeiture
cases. In the present case the reputation of the petitioner was at stake and,
therefore, the principle that no man should be judge in his own case, had to be
followed. According to the petitioner, the members of the Disciplinary
1
Committee could not be said to be unbiased. They were part of the institution,
and therefore suffered from institutional bias.
23. In reply, Shri Sundaram, learned counsel for BCCI submitted that
the members of a Society have to abide by the Rules and Regulations thereof
and submit themselves to the jurisdiction of the domestic tribunal, though some
of the members of the tribunal may even appear to him to be acting like
prosecutors. A member cannot place himself above the Institution. He is bound
by the rules, and cannot complain unless the inquiry disclosed malafides or unfair
treatment. A society is comparable to a club or a Masonic Lodge. A judgment in
the case of T.P. Daver Vs. Lodge Victoria reported in [AIR 1963 SC 1144]
is relevant in this behalf wherein this Court has held in paragraph 7 thereof as
follows:-
"7. Another aspect which may also be noticed is how far
and to what extent the doctrine of bias may be invoked in the
case of domestic tribunals like those of clubs. The observations of
Maugham J. in Maclean's case (1929) 1 Ch. 602 in this context
may be noticed. The learned Judge observed in that case thus :
"A person who joins in association governed by rules
under which he may be expelled,............................ has in my
judgment no legal right of redress if he be expelled according to
the rules, however unfair and unjust the rules or the action of
the expelling tribunal may be provided that it acts in good
faith............................ The phrase, "the principles of natural
justice," can only mean in this connection the principles of fair
play so deeply rooted in the minds of modern Englishmen that a
provision for an inquiry necessarily imports that the accused
should be given his chance of defence and explanation. On that
point there is no difficulty. Nor do I doubt that in most cases it
is a reasonable inference from the rules that if there is anything
of the nature of a lis between two persons, neither of them
should sit on the tribunal."
Another difficulty that one is confronted with in proceedings held by
committees constituted by clubs is to demarcate precisely the line
1
between the prosecutor and the Judge. Maugham, J. noticed this
difficulty and observed in Maclean's case1 (1929) 1 Ch. 602 thus :
"In many cases the tribunal is necessarily entrusted with
the duty of appearing to act as prosecutors as well as that of
judges; for there is no one else to prosecute. For example, in a
case where a council is charged with the duty of considering
the conduct of any member whose conduct is disgraceful and of
expelling him if found guilty of such an offence, it constantly
occurs that the matter is brought to the attention of the council
by a report of legal proceedings in the press. The member is
summoned to appear before the council. The council's duty is to
cause him to appear and to explain his conduct. It may be that
in so acting the council are the prosecutors. In one sense they
are; but if the regulations show that the council is bound to act
as I have mentioned and to that extent to act as prosecutors, it
seems to be clear that the council is not disqualified from taking
the further steps which the rules require."
Though it is advisable for a club to frame rules to avoid conflict of
duties, if the rules sanction such a procedure, the party, who has
bound himself by those rules, cannot complain, unless the enquiry
held pursuant to such rules discloses malafides or unfair treatment."
1. LR (1929) 1 Ch D 602,
623
24. On the issue of bias however, Shri Sundaram pointed out that as
far as the law in India is concerned, a Constitution Bench of this Court has
already clarified the legal position, and held that the test of `real danger' of bias
is the valid test and not the one of reasonable apprehension. In M.P. Special
Police Establishment Vs. State of M.P. reported in [2004 (8) SCC 788],
the Constitution Bench was concerned with the question of bias in the context of
sanction to prosecute the ministers. In paragraph 14, the Court observed as
follows:-
".....The question in such cases would not be whether they
would be biased. The question would be whether there is
reasonable ground for believing that there is likelihood of
apparent bias. Actual bias only would lead to automatic
1
disqualification where the decision-maker is shown to have an
interest in the outcome of the case. The principle of real
likelihood of bias has now taken a tilt to "real danger of bias" and
"suspicion of bias......"
The Constitution Bench referred with approval an earlier judgment in the case of
Kumaon Mandal Vikas Nigam Ltd. Vs. Girija Shankar Pant reported in
[2001 (1) SCC 182]. In that case the question was whether the Managing
Director had a bias against the respondent therein. This Court had held that
mere apprehension of bias was not sufficient but that there must be real danger
of bias.
25. With respect to the doctrine of necessity, Shri Sundaram referred to
the judgment of this Court in the case of Election Commission of India Vs.
Dr. Subramaniam Swamy reported in [1996 (4) SCC 104] where in the
context of the disagreement amongst the Election Commissioners, this Court had
applied this doctrine of necessity. He pointed out that this Court had even
observed that `if the choice is between allowing a biased person to act or to stifle
the action altogether, the choice must fall in favour of the former as it is the only
way to promote decision making'. Shri Jethmalani on the other hand submitted
that the doctrine of necessity could be applied in cases of constitutional or
statutory requirements, and cannot be brought into in matters of contract. He
submitted that this judgment should be read as such, and assailed the
application of doctrine of necessity in the present case.
26. Shri Jethmalani drew out attention to a recent judgment of this
Court in Justice P.D. Dinakaran Vs. Hon'ble Judges Inquiry Committee
1
and ors reported in [2011 (6) SCALE 97], where this Court accepted the
grievance of apparent bias against a Jurist Member of the Inquiry Committee and
requested the Chairman of Rajya Sabha to nominate another jurist in his place in
the inquiry against the petitioner. Shri Sundaram however, pointed out that the
committee was constituted as a matter of Constitutional requirement where the
benchmark required with respect to fairness will be quite high. In the present
matter we are concerned with the question of likely unfairness on the part of
members of a domestic tribunal of a society, and that context has to be kept in
mind.
27. We have noted the submissions of the rival parties. The objection
of Shri Jethmalani to the forming of the Disciplinary Committee was on the basis
of rule 1 (q). When we read this rule we find that the rule states that the Board
shall at every Annual General Meeting appoint a Committee consisting of three
persons. The President shall be one of them and the function of the Committee
is to inquire into and deal with the matters relating to any acts of misconduct
etc. In view of the wording of this rule, there is no difficulty in accepting that
normally the President has to be one of the members of this Committee. The
question is with respect to the necessity arising on account of the President
being unavailable in a situation like the present one.
28. In this connection, we must note that the word `shall' has been
interpreted as `may' in a number of judgments while interpreting such provisions
on different occasions. In State of U.P. Vs. Manbodhan Lal reported in [AIR
1957 SC 912] a Constitution Bench of this Court was concerned with the order
1
of Compulsory Retirement of the respondent who had challenged it on the
ground that the Union Public Service Commission had not been consulted. This
was in the context of Article 320 (3) (c) of the Constitution which reads as
follows:-
"320 (3) "The Union Public Service Commission or the
State Public Service Commission, as the case may be, shall be
consulted.
(a)...........
(b)..........
(c) on all disciplinary matters affecting a person serving
under the Government of India, or the Government of a State in
a civil capacity, including memorials or petitions relating to such
matters."
The Constitution Bench held that the consultation was not mandatory. The Court
observed in paragraph 11 of the judgment as follows:-
"........the use of the word "shall" in a
statute, though generally taken in a mandatory sense, does not
necessarily mean that in every case it shall have that effect, that is
to say, that unless the words of the statute are punctiliously
followed, the proceeding, or the outcome of the proceeding, would
be invalid.
On the other hand, it is not always correct to say that where the
word "may" has been used, the statute is only permissive or
directory in the sense that non-compliance with those provisions
will not render the proceeding invalid. In that connection, the
following quotation from Crawford on 'Statutory Construction' - Art.
261 at p. 516, is pertinent :
"The question as to whether a statute is mandatory or
directory depends upon the intent of the legislature and not upon
the language in which the intent is clothed. The meaning and
intention of the legislature must govern, and these are to be
ascertained, not only from the phraseology of the provision, but
also by considering its nature, its design, and the consequences
which would follow from construing it the one way or the
other........"
1
29. We may as well profitably refer to a judgment of this Court in the
case of State of A.P. and another Vs. Dr. Rahimuddin Kamal reported in
[AIR 1997 SC 947]. In that matter this Court was concerned with Rule 4(2) of
the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules,
1961, where the expression `shall' had been used in the Rules, making it
obligatory upon the part of the Government, to examine the records, consult the
Head of the Department and Vigilance Commission and then pass an appropriate
order. In that case the order of removal from service was passed in accordance
with law and after conducting appropriate inquiry but without consulting the
Commission. The Court took the view that the expression `shall' had to be
construed as `may' and non consultation with the Commission would not render
the order illegal or ineffective.
30. In the instant case the petitioner himself had objected to the
President being the member of the Committee. That being the position, the
President recused himself from the Committee. When a situation thus arises, in
view of the objection of the petitioner, the society cannot be left without a
remedy. The submission of Shri Jethmalani is that the alternate disciplinary
committee has to be one which is not objected by the petitioner. The rules lay
down the terms of the contract amongst the members of the society, and the
terms can be altered only with the consent of the concerned members. As far as
this submission is concerned, we must note that firstly, the rule does not say
that if the President cannot be a member of the Committee no substitution shall
take place, nor does it say that the substituting member should be one not
1
objected by the delinquent against whom the enquiry is proposed. This rule is
being canvassed as a term of the contract of membership. A member of the
society having accepted the rules, agrees to the disciplinary authority of the
three member Committee which is to be constituted under these rules. He
cannot claim a right to dictate as to who should be the members of the
Committee. Any such interpretation will lead to a situation that the delinquent
will decide as to who should be the members of the Disciplinary Committee. Such
a submission cannot be accepted. In our understanding the rule is elastic
enough, and in an appropriate situation the word `shall' can be read as `may'. It
is very clear that, normally the President shall be a member of three Member
Committee, but if for any reason his presence on the Committee is objected to
on grounds of unfairness, and he recuses himself therefrom, the respondent no.1
certainly has the power to substitute him by some other person. The action of
the respondents is sought to be defended on the basis of necessity. The
doctrine of necessity is a common law doctrine, and is applied to tide over the
situations where there are difficulties. Law does not contemplate a vacuum, and
a solution has to be found out rather than allowing the problem to boil over.
Otherwise, as proposed by Shri Jethmalani one will have to wait for one more
year for a new President to be elected, which submission cannot be accepted.
31. As far as the disciplinary actions by societies and associations are
concerned, many of the societies under the Tamil Nadu Societies Registration Act
and similar State Acts, are smaller societies. It is another matter that the first
respondent society is a large body having large resources. If the members or
2
the Managing Committee of a Society receive a complaint of any misconduct on
the part of any of its office bearers, surely the subject is expected to be taken up
in the General Body Meeting of the Society. These societies are expected to sort
out the future course of action with respect to such allegations on their own on
the basis of their internal disciplinary mechanism. Merely because all the
members of a society have participated in the discussion concerning such
allegation, the Society can't be expected to appoint an outsider to hold the
disciplinary proceeding. It may not be financially possible as well for such small
societies. That apart, only a prima facie opinion is formed in such meetings.
Merely because a member has participated in such a meeting he cannot be
accused of bias to disentitle him from being appointed on the Disciplinary
Committee.
32. We have noted the submissions of the petitioner with respect to his
apprehensions. However, as far as the propositions of law are concerned, we
cannot take a different view in the present case from the law laid down in the
judgment of the Constitution Bench of this Court in M.P. Special Police
Establishment (supra), and the judgment of four Judges in T.P. Daver Vs.
Lodge Victoria (supra). As held in M.P. Special Police Establishment, a
mere apprehension of bias cannot be a ground for interference. There must
exist a real danger of bias. And, following T.P. Daver Vs. Lodge Victoria,
though such domestic inquiries have undoubtedly to be fair, a member of a
society cannot stretch the principle of fairness to the extent of demanding a
tribunal consisting of outsiders, on the basis that the society members are biased
2
against him. As we have noted, the petitioner has, in clear terms stated that he
was not making any personal allegations against two members of the Disciplinary
Committee, viz. Shri Jaitely and Shri Scindia. Even the grievance against the
third member Shri Amin cannot be said to be well founded. The petitioner was
alleging institutional bias against the members of the Committee, which was only
on the basis of their participation in the meetings of the first respondent society.
In this way, institutional bias can be alleged against every member of the
Governing Council of IPL and the General Body of the first respondent which
cannot be accepted. The petitioner may have an apprehension, but it is not
possible to say from the material on record that he was facing a real danger of
bias. We cannot presume that the three member committee will not afford the
petitioner a fair hearing, or that it will not render unbiased findings. Taking a
view as canvassed by the petitioner will lead to a demand for interference in the
enquiries conducted by all other societies in such situations, and that cannot be
approved in view of the law already laid down by this Court. This is apart from
the view that we have taken, that the Committee is validly constituted under
Rule 1(q) in view of the necessity arising due to the recusal of the President of
BCCI from the Committee.
33. This being the position, we find no error in the judgment and order
dated 15.7.2010 passed by the Division Bench of the Bombay High Court in Writ
Petition No.1370 of 2010. Similarly, we do not find any error in the order of the
Disciplinary Committee declining to recuse, or the decision of the Annual General
Meeting of the first respondent to extend the term of this Disciplinary Committee
2
for the inquiry against the petitioner. Consequently, there was no error in the
two judgments of the High Court upholding those two decisions as well.
34. For the reasons stated above, all the three petitions are dismissed,
though parties can certainly bear their cost of the litigation.
.........................................J.
( J.M. Panchal )
.........................................J.
( H.L. Gokhale )
New Delhi
Dated: September 26, 2011
