WP(C) No.3713/2008 Page 1 of 43 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 3713/2008 and C.M. Nos.7144, 13945/08, 2962/2009 INDIAN HOCKEY FEDERATION ..... Petitioner Through Ms. Manmeet Arora with Ms. Fareha A. Khan, Advocate versus UNION OF INDIA & ANR. ..... Respondents Through Mr. Jatan Singh with Mr. Sudep Sudan and Mr. Ashok Singh, Advocate for UOI. Mr. Harish Malhotra, Senior Advocate with Mr. Lovkesh Sawhney and Mr. Durgesh Kumar Pandey, Advocate for IOA. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of the local newspapers be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported Yes in the Digest? JUDGMENT 21.05.2010 Introduction 1. This petition by the Indian Hockey Federation (`IHF‟), a society registered under the Societies Registration Act 1860, challenges the Resolution dated 28th April 2008 passed by the Indian Olympic Association (`IOA‟), Respondent No. 2 herein suspending the Governing Council of the IHF, and appointing an Ad-hoc Committee (earlier Respondent No. 3) for administering the affairs of the IHF. The IHF also challenges the decision dated 7th May 2008 of the Union of India through Ministry of Youth Affairs & Sports (`MYAS‟), Respondent No.1, in WP(C) No.3713/2008 Page 2 of 43 conveying its approval of the suspension of the IHF and appointment of the Ad hoc Committee by the IOA. The third challenge is to the order passed by the MYAS on 12th May 2008 suspending the recognition of the IHF in terms of Para I.2 of Annexure-III of the “Guidelines for Assistance to the National Sports Federations” (“Guidelines”). The fourth challenge is to the subsequent disaffiliation of the IHF by the IOA on 10th May 2009 and finally to the decision dated 10th/11th August 2009 of the MYAS withdrawing the recognition of the IHF. Background Facts 2. The IHF was formed in 1925 for the purposes of controlling and regulating the game of hockey in India. It is stated in the petition that in the year 1927 it joined the International Hockey Federation (`FIH‟). The office bearers of IHF include the President, 8 Vice Presidents, a Secretary General, a Treasurer and three General Secretaries. The office bearers are elected at the Annual General Meeting (AGM) for a term of four years from amongst the representatives of members present and eligible to vote. In the petition it is stated that the IHF has 40 State Associations and other national level sports bodies of various government organizations as its members. 3. The IOA was formed in 1927. The membership of the IOA is open inter alia to any national sports federation (NSF)/association. The IHF is one such NSF. 4. On 14th August 2001 the MYAS circulated the Guidelines, which WP(C) No.3713/2008 Page 3 of 43 according to the MYAS became necessary to be issued on the basis of “our experience of our preparation for Asian Games-1994 and Olympic Games- 1996 as well as recommendations of the Committees set up for promotion of sports.” The 2001 Guidelines are said to be a departure from the past and to include major innovations and changes. Summarizing the changes, it was stated that: “these guidelines propose to replace the present approach with annual sanctions against an agreed programme for the development and promotion of each sport according to its unique requirements. This, in turn, requires significant improvements in the internal management practices of Federations. An important perspective in this exercise is to help Federations attain financial self sufficiency over a period of time thereby reducing their dependence on the Government.” 5. The three changes introduced in the 2001 Guidelines were: “Firstly to define the areas of responsibility of the various agencies involved in the promotion and development of sports. Secondly, to identify National Sports Federations eligible for coverage under these guidelines, to set priorities, and to detail the procedures to be followed by the Federation, to avail of Government sponsorship and assistance. Thirdly, to state the conditions for eligibility which the Government will insist upon while releasing grants to Sports Federations.” 6. The Guidelines also delineate inter alia the specific role and responsibility of the MYAS, NSFs and Sports Authority of India (`SAI‟). As far as MYAS is concerned, it is to determine the eligibility conditions WP(C) No.3713/2008 Page 4 of 43 for recognition of NSFs and lay down conditionalities which NSFs will have to fulfill if they wish to avail of government support. The NSFs are to be “fully responsible and accountable for the overall management, direction, control, regulation, promotion, development and sponsorship of the discipline for which they are recognized by the concerned International Federation.” An NSF is expected to discharge all responsibilities “in consonance with the principles laid down in the Olympic Charter or in the charter of the Indian Olympic Association or the relevant International Federation, as the case may be.” The SAI is to provide the necessary support to the NSF for the identification, training and coaching of sports persons, including provision of infrastructure, equipment and other such assistance. 7. The Guidelines give priority to certain kinds of sports. Hockey for men and hockey for women is listed under priority (A) category in Annexure I to the Guidelines as it is recognized as a sport where the current standard is close to international competitive levels, and where the teams or individuals are likely to win medals in future. 8. The 2001 Guidelines contain detailed provision for recognition of NSFs. It states that while considering the proposals for recognition, the MYAS would be guided by the following:  “The current legal status of the organisation.  Recognition by the International and Asian Federation.  Recognition by the IOA.  Its undisputed status as an Apex Body in India. WP(C) No.3713/2008 Page 5 of 43  Its all India spread.  The role and contribution of the organisation in promoting and developing Sports in India.  Its internal financial and management practices and standards.  Its electoral practices.  Its protection and promotion of players interests and welfare.” 9. Clause 5.3 of the 2001 Guidelines states: “The Ministry reserves the right to suspend or withdraw the recognition of NSF, in the event of serious irregularities being detected in their internal functioning. The procedure and consequences of suspension and de-recognition are indicated at Annexure III.” Annexure III to the 2001 Guidelines lists out the “Procedure for suspension/withdrawal of recognition and consequences thereof.” Para I lists out the kinds of irregularities which might lead to the suspension of the recognition of the NSF by the MYAS. Under Clause (2) suspension of recognition can result from “suspension by the IOA”. Clause (10) states that suspension can be “in the public interest in the event of any other serious irregularities being detected”. As regards withdrawal of recognition the grounds for the same are set out in Para II of Annexure III to the 2001 Guidelines. Withdrawal of recognition can happen inter alia on account of “an inquiry confirming serious irregularities regarding the functioning of the Federation”. Clause (v) thereof states: “Recognition may be withdrawn in case of any of the following: “(i) to (iv)…. WP(C) No.3713/2008 Page 6 of 43 (v) The concerned International or Asian Federation permanently derecognizes or disaffiliates a National Federation. Similarly, derecognition may take place in the event that the IOA permanently derecognizes or disaffiliates National Federation.” 10. However, it is clearly stated that “before withdrawal of recognition, the concerned NSF will, however, be given reasonable opportunity to present their defence.” 11. Para III of Annexure III of the 2001 Guidelines spells out the consequences of suspension/withdrawal of recognition which is that the “department will not consider any proposal” from the suspended/ derecognized NSF. 12. The provisions concerning disaffiliation of an NSF by the IOA require to be considered next. The Memorandum of Association (MOA) of the IOA, a copy of which has been enclosed as Annexure P–3 to the petition, indicates that the membership of the IOA is open to all NSFs. Clause 8 of the MOA states that the elections should be held once in four years at the AGM of the General Assembly to elect an Executive Council from amongst the representatives of the members present. The President of the IOA has, inter alia, the power to deal with all disciplinary matters arising in the IOA or in the NSFs “as per rules on the subject”. However, such action “would be subject to ratification in the next Executive Council meeting of the IOA”. Among the functions, powers and duties of General Assembly of the IOA are to enforce rules and regulations of the WP(C) No.3713/2008 Page 7 of 43 International Olympic Committee and “to take disciplinary action against any National Sports Federation/association for misbehavior or any other undesirable activity bringing discredit to the country”. Under the head “disciplinary sanction”, it is stated that the IOA member unit is liable for suspension for a specified period of time or expulsion from the IOA. However, in note 4 thereunder, it is stated that “the disciplinary sanction will not be given unless supported by 2/3rd General Assembly members present and voting.” As regards disaffiliation/de-recognition/suspension of NSFs, the procedure outlined is as under: “a. The I.O.A. General Assembly, on the recommendation of the President IOA, either directly or through the I.O.A. Executive Council, based on his discretion, is entitled to consider disaffiliation/derecognition/suspension of the National Sports Federations/Associations/State Olympic Association on one or more of the undermentioned grounds, after ensuring that a Show Cause notice has been served and an explanation has been obtained and considered from the organisation recommended for disaffiliation/de- recognition/suspension. i. Non-observance of directives issued by the Indian Olympic Association form time to time. ii. Not holding elections after the completion of the normal tenure for which the office bearers are elected. Any extension of the tenure of the office-bearers will be subject to obtaining prior written permission from the I.O.A. iii. Not submitting annual audited statement of accounts, annual report and list of current office-bearers within the stipulated time period. WP(C) No.3713/2008 Page 8 of 43 iv. Whatever the decision of the I.O.A. General Assembly, it must be supported by two-third majority votes of the Members present and voting. v. If the IOA General Assembly takes a decision to disaffiliate a national Sports Federation/Association/Sate Olympic Association, the President, IOA will have the authority to constitute an ad-hoc body, preferably from amongst the Members of the IOA General Assembly, to look after the work done by the disaffiliated National Sports Federation/Association/State Olympic Association till such time that the President, IOA arranges for fresh elections to be held in the concerned National Sports Federation/ Association/State Olympic Association which would than start functioning in the normal manner.” (emphasis supplied) 13. The Petitioner states that a Joint Meeting was held between the IHF and the Indian Women Hockey Federation (IWHF) on 4th November 2000 and at that meeting the Indian Hockey Confederation (`IHC‟) was formed as a unified national body. The respective General Bodies of IHF and IWHF passed resolutions in this regards. This became necessary on account of the conditionality laid down by the FIH. In 2001 itself the FIH at its Congress approved the IHC and its constitution. It is stated that since 2001 all matters concerning hockey in India were administered by the IHC which conducted international events with the approval of the FIH. However, both IHF and IWHF continued to be recognized by both the Respondent No. 1 as well as IOA. The FIH and the IHC entered into an MOU on 6th November 2007 for implementation of the project “Promoting Indian Hockey” and hosting the 2010 Men‟s Hockey World Cup in India. WP(C) No.3713/2008 Page 9 of 43 14. It is stated that the procedure followed by IHF for selecting teams for participation in international events and tournaments is to constitute a Selection Committee consistent with the 2001 Guidelines. In January 2008 FIH selected players to participate in the 8 Nation Tournaments to be held in Kuala Lumpur, Malaysia; the Test Series in Belgium, the Olympic Qualifier Tournament in Santiago, the 4 Nation Tournament in Australia and the Azlan Shah Hockey Tournament in Malaysia. A preparatory coaching camp was organized from 25th March to 17th April 2008 in the Campus of the SAI at Bangalore. The Camp Coordinator, by a letter dated 9th April 2008, submitted to the MYAS a list of players selected to represent India and to participate in the 4 Nation Hockey Tournament in Australia and in the Azlan Shah Hockey Tournament in Malaysia. The MYAS approved 18 players, and further directed that 6 to 8 players of the approved list would be replaced for the tournament in Malaysia from the team touring Australia and that they will directly go from India. 15. On 21st April 2008 several events occurred simultaneously. An Associate Editor of TV Today Network Ltd (`TV Today‟) sent an e-mail to media under the caption “Jothikumaran caught on camera accepting bribe for selecting a player for the Indian Hockey Team.” TV Today claimed to have undertaken a “Sting Operation” in which the IHF‟s Secretary General Mr. K. Jothikumaran was shown receiving cash for getting a player included in the senior team. This was aired by Aaj Tak News. 16. On the same day, an e-mail was sent by the FIH to the IOA expressing “a deep concern that progress on the project and plans for the World Cup WP(C) No.3713/2008 Page 10 of 43 have not met FIH expectations.” The e-mail attached a copy of the letter addressed from the President of the IHC which explained the current position. The letter pointed out that “the allocation of the World Cup to India is now seriously at risk. Please do all you can to assist and to ensure that the project and the World Cup stay on track.” The Secretary General, FIH addressed a separate letter to the President of the IOA about the allegations in the Indian press “concerning alleged improper conduct” by the Secretary General of the IHC which was “a cause for very great concern.” 17. A separate letter dated 21st April 2008 addressed by the Secretary General FIH to Mr. KPS Gill, President of the IHC highlighted the fact that the Indian Men‟s team had failed to qualify for the Beijing Olympic Games. While asserting that the failure was not attributable to the FIH, the letter noted that there was great disappointment in leading articles in the Indian press, “quoting the coach and assistant coach, making all manner of criticism of technical officials, FIH and others to deflect attention from their own failings.” The letter proceeded to state as under: “Dear Mr. Gill, it appears that there is a substantial breakdown in communications and understanding between yourself, the IHC, the IHF and the IWHA on the one side and FIH on the other. FIH came to Indian Hockey in good faith to offer assistance to help return Indian Hockey to its place at the top of the podium. FIH committed substantial funding to the Project, secured the services of both Bob Davidzon (in a totally honorary capacity) and Ric Charlesworth, one of the worlds‟ pre-eminent coaches, and decided in principle to bring the 2010 Men‟s World Cup to Delhi, without following the usual FIH WP(C) No.3713/2008 Page 11 of 43 protocols with respect to allocation of tournaments. The motives behind these FIH initiatives were totally open and honorable. The primary benefit was for Indian Hockey. The secondary benefit was the promotion of the sport, worldwide. It is a mystery to me, the FIH President and my colleagues on the FIH Executive Board that these initiatives have not been welcomed with open arms by the Indian hockey family, indeed it would appear to the contrary. While the focus of this letter is the Project, the World Cup is also very much in consideration. Apart from the construction of the stadium (for which the IHC has no responsibility), almost every other aspect of the organisation for which the IHC is responsibly is well behind schedule. This is of great concern and I ask that you take whatever steps are necessary as a matter of urgency to rectify this situation.” 18. The letter then proceeded to set a deadline for confirming that the IHC had complied with the requirements of FIH failing which the FIH will be entitled to terminate the MOU and consequentially the proposal to hold the 2010 Men‟s World Cup in India. FIH demanded a letter from the IHC “by 5.00 pm Lausanne time on 29 April, 2008” indicating that “there is a positive attitude from the IHC to the success of the Project, and indicating that a further letter will be provided by the IHC within an additional 14 days” which was to be expired soon. 19. On 22nd April 2008 an emergent meeting of the IOA Executive Council was convened in the IOA‟s office at New Delhi “to discuss the matters pertaining to the Indian Hockey Federation, in reference to the charges against the Secretary General, IHF, Sh. K. Jothikumaran.” Since much WP(C) No.3713/2008 Page 12 of 43 turns on this letter, it is necessary to reproduce it in full: “IOA/EC/Meeting 22nd April 2008 Sub: IOA Executive Council – Emergency meeting. The President IOA has directed me to call an emergency meeting of the Executive Council of the Indian Olympic Association which will be held at 3:00 p.m. on 28th April 2008 in IOA office at Olympic Bhavan, B-29, Qutub Institutional Area, New Delhi to discuss the matters pertaining to the Indian Hockey Federation, in reference to the charges against the Secretary General, IHF, Shri K. Jothikumaran. This meeting is convened at short notice due to the urgency of the matter. Kindly make it convenient to attend the meeting. Dr. Lalit K Bhanot Joint Secretary” 20. A copy of the said notice of the meeting was sent to Shri KPS Gill who apparently attended the said meeting on 28th April 2008. 21. On 23rd April 2008 an order was passed by the MYAS appointing Shri Ajit Pal Singh and Shri Zafar Iqbal as the Government Observers in the discipline of Hockey (Men) whereas Smt. Roopa Saini, continued to be the Government Observer for Hockey (Women). On its part, the IHF constituted a three member committee on 25th April 2008 to inquire into the allegations against Mr. Jothikumaran. On 27th April 2008 Jothikumaran addressed a letter to the President of the IHF dissociating himself from the responsibilities entrusted to him and promising his cooperation in the inquiry. WP(C) No.3713/2008 Page 13 of 43 22. By a resolution dated 28th April 2008, the Executive Council of the IOA suspended the IHF. The intimation regarding the said emergency meeting was sent by the Secretary General, IOA on 29th April 2008 to all the State Units of the IHF and the IHF itself. The communication stated that the IHF was suspended with immediate effect and that “the President, IOA is authorized to form an ad-hoc committee of 5 members to administer and manage the affairs of the Federation till all issues including governance of the Federation are finally resolved.” The Executive Council formed a 5-Member Selection Committee comprising of Mr. Aslam Sher Khan as the Chairman, Mr. Ajitpal Singh, Mr. Ashok Kumar, Mr. Jaffar Iqbal and Mr. Dhanraj Pillai, former Olympians as its members to select the teams for all forthcoming International events/championships. Mr. Ric Charlesworth was to be the Advisor to the Selection Committee. It requires to be noted at this juncture that the minutes of the emergency meeting of the Executive Council of the IOA held on 28th April 2008 have not been placed on record in these proceedings. 23. The above letter dated 29th April 2008 was received by the IHF on 5th May 2008. Mr. KPS Gill protested against the said decision of the IOA and wrote a letter to the MYAS pointing out that it was contrary to the Guidelines. The IHF kept writing to the IOA asking for the minutes of the Executive Council of the IOA. On 5th May 2008 Mr. Aslam Sher Khan describing himself as Chairman of the Selection Committee of the IHF appointed Shri Pargat Singh as Manager of the Indian Hockey team to participate in the Azlan Shah Cup Invitational Tournament to be held at Malaysia. This act of appointing Mr. Pargat Singh was approved by the WP(C) No.3713/2008 Page 14 of 43 MYAS by a letter dated 7th May 2008 addressed by it to the Ad Hoc Committee appointed by the IOA. 24. At this stage, it must be noticed that the Secretary of the FIH prepared an advisory note on 7th May 2008 regarding “the status of Indian Hockey Confederation in the Indian Olympic Association.” This note acknowledged that neither the IHF nor the IWHF were members of the FIH but that “the IHC is a member of the FIH as the sole governing body for hockey, men and women in India” and that “the IHF and the IWHF are the members of the IHC.” Further, the consequences of the IHC ceasing to be a member of the FIH were spelt out as under:  “Indian teams, men and women, could no longer participate in any tournaments organised by the FIH or the AHF or organised under their jurisdiction.  FIH could not continue with the Project.  FIH could not hold the 2010 Men‟s World Cup in India.  Indian hockey would not be entitled to participate in the affairs of the FIH or the AHF, for example they would not be entitled to attend the FIH Congress or meetings of the AHF not nominate members of Committees.  No officials (judges umpires, etc.) from India could be appointed to any tournament conduct by or under the jurisdiction of the FIH or AHF.” 25. However, it was noted by the FIH that it was not the wish of the FIH that “the IHC should cease to be a member of the FIH, with all the consequences that would follow, but it is our obligation to ensure that the Statutes are observed not just in words but also in commitment and WP(C) No.3713/2008 Page 15 of 43 action.” It was further pointed out as under: “For the IHC to remain a member of the FIH, urgent steps are required to properly constitute it as the sole governing body for hockey, men and women, in India with proper governance principles and structure and a clear commitment from all parties involved in the Confederation to achieve this objective.” 26. On 13th May 2008 the present writ petition was filed. On 14th May 2008 notice was directed to be issued in the writ petition. It transpired later that although a decision was taken on 12th May 2008 by the MYAS suspending recognition of the IHF, this Court was not kept informed of the said decision. The said document was placed much later on the record of this court along with the rejoinder of the Petitioner. The said order dated 12th May 2008 reads as under: “No.F.32-23/2008-SP.III Government of India Ministry of Youth Affairs & Sports New Delhi, the 12th May, 2008 O R D E R Pursuant to the suspension of Indian Hockey Federation by the Indian Olympic Association and formation of an ad-hoc Committee by the Indian Olympic Association to manage the affairs of Indian Hockey Federation in the interim, the recognition of the Indian Hockey Federation by the Ministry of Youth Affairs & Sports is hereby suspended, as per provisions contained in Para 1 (ii) of the Annexure III of the “Guidelines for Assistance to the National Sports Federations” till further orders. This issues with the approval of the Competent authority. Sd/- (Deepika Kachhal) Deputy Secretary to the Government of India” WP(C) No.3713/2008 Page 16 of 43 27. The above order of suspension of recognition was received by the Petitioner on 23rd May 2008. On 29th August 2008 this Court directed Respondent No. 2 to file an affidavit indicating