1 NMS-230-S-L-195-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.230 OF 2011 IN SUIT (L) NO.195 OF 2011. Lalit Kumar Modi Plaintiff. versus Board of Control for Cricket in India and others Defendants. .... Mr.Ram Jethmalani, Senior Counsel a/w Mr.Aspi Chinoy, Senior Counsel, Mr.Abhishek Singh, Mr.Seadeep Hora, Mr.Gaurav Gopal, Shelly Saluja i/b. Wadia Ghandy & Co., for Plaintiff. Mr.Rafique Dada, Senior Counsel a/w Mr.T.N.Subramanian, Senior Counsel, with Mr.P.R.Raman, Ms.Akhila Kaushik, Ms.S.P.Arti, Mr.Indranil Deshmukh, Mr.Adarsha Saxena i/b. Amarchand & Mangaldas & S.A.Shroff, for Defendant No.1. .... CORAM : S.J.KATHAWALLA, J. RESERVED ON : 2ND FEBRUARY 2011. PRONOUNCED ON : 4TH MARCH 2011. PC : 1. In the above suit the Plaintiff is the Administrator of the Defendant no.1 i.e. the Board of Control for Cricket in India (`BCCI'). The BCCI is the national governing body for cricket in India registered under the Tamilnadu Societies Registration Act, 1975. The Plaintiff was the Vice President of BCCI and was also the Chairman and the Commissioner of the Indian Premier League (`IPL') which is 2 NMS-230-S-L-195-11.doc a sub-committee of BCCI. 2. By the present suit, the Plaintiff, inter alia, has sought a declaration to the effect that the agenda notice dated 27th November 2009 issued by the Defendant no.1 calling for a Special General Meeting (`SGM') is illegal, null and void and the SGM dated 11th December 2010 held in pursuance of such notice is illegal, null and void and any decision taken in the said SGM dated 11th December 2010 is illegal, null and void. In the present suit the Plaintiff has taken out the above Notice of Motion wherein he has prayed that pending the hearing and final disposal of the suit, the Defendants be restrained by an order of temporary injunction of this Court from conducting any enquiry through the Disciplinary Committee constituted by the Defendants on 11th December 2010 and from proceeding any further with the disciplinary proceedings against the Plaintiff. 3. For the purposes of deciding the present Notice of Motion, Rules 1(q), 17(iii), 32(ii), 32(iv) and 32(vii) of the Rules and Regulations of the BCCI are relevant and therefore reproduced hereunder :- "1(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 Officer, Administrator, Selector or any person appointed or employed by BCCI. The Committee shall have full power and authority to 3 NMS-230-S-L-195-11.doc 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. 17 (iii) The President may at his discretion direct the Secretary to convene a Special General Meeting at shorter notice in which case a notice of at least 10 days shall be given. 32. Misconduct and Procedure to deal with :- (i) ... ... ... (ii) In the event of any complaint being received from any quarter or based on any report published or circulated or on its own motion, in the subject matter of any act of indiscipline or misconduct or violation of any of Rules and Regulations by any Player, Umpire, Team Official, Selector or any person appointed or employed by BCCI, the President shall refer the same within 48 hours to a Commissioner appointed by the Board to make a preliminary enquiry. The Commissioner shall forthwith make preliminary inquiry and call for explanations from the concerned person(s) and submit his report to the President not later than 15 days from the date of reference being made by the President. On receipt of the report, the President shall forthwith forward the same to the Disciplinary Committee. (iii) ... ... ... (iv) If any Member or Associate Member or any Administrator of the Board commits any act of indiscipline or misconduct or acts in any manner which may or likely to be detrimental to the interest of the Board or the game of cricket or endanger the harmony or affect the reputation or interest of the Board or refuses or neglects to comply with any of the provisions 4 NMS-230-S-L-195-11.doc of the Memorandum and/or the Rules and Regulations of the Board and/or the Rules of conduct framed by the Board, the Hony. Secretary of the Board, on receipt of any complaint shall, in consultation with the President, forthwith issue Show Cause Notice calling for explanation and on receipt of the same and/or in case of no cause or insufficient cause being shown, shall refer the same to the Committee. The Committee shall after providing opportunity of hearing to the parties concerned shall submit its findings to the Board. The Board shall at the Special General Meeting specially convened take appropriate decision by majority of 3/4th members present and voting at the said meeting. (v) ... ... ... (vi) ... ... ... (vii) Pending inquiry and proceeding into complaints or charges or misconduct or any act of indiscipline or violation of any Rules and Regulations, the concerned Member, Associate Member, Administrator, Player, Umpire, Team Official, Referee or the selector (including the privilege and benefits such as subsidies to the Member or Associate Member) may be suspended by the President from participating in any of the affairs of the Board until final adjudication. However, the adjudication should be completed with six months." 4. At the Annual General Meeting (`AGM') of BCCI held on 25th September 2009, three members i.e. the President, Mr.Arun Jaitley and Mr.Chirayu Amin were appointed as members of the Disciplinary Committee. 5. On 25th April 2010 the President of BCCI issued a notice to the Plaintiff, wherein after recording that the show cause notice had been issued by the Hon.Secretary, BCCI in consultation with the President, 5 NMS-230-S-L-195-11.doc the Plaintiff was asked to explain within a period of fifteen days why action should not be taken against him. It was further recorded that the allegations contained in the show cause notice were extremely grave and serious. As an Administrator of the Board the Plaintiff had prima facie committed acts of indiscipline and misconduct which were detrimental to the game and Board. In view of the seriousness of the allegations, pending the reply of the Plaintiff to the show cause notice and an inquiry with regard to other allegations, the Plaintiff was suspended from participating in any affair/activity of the Board under Article 32(vii) of the Rules and Regulations. The Secretary of the BCCI also issued show cause notices to the Plaintiff under Article 32(iv) of the Rules and Regulations of BCCI on 26th April 2010 and 6th May 2010. 6. The Plaintiff by his reply to the first show cause notice dated 15th May 2010 addressed to the Hon. Secretary of the BCCI, inter alia, contended that the Secretary should be wholly excluded from the disciplinary proceedings, and the President as also the General Council Members should recuse themselves as they may be required to give evidence. It was further contended that the Plaintiff has great respect for the President and the Governing Council Members, save the Secretary. The Plaintiff also addressed a letter dated 25th May 2010 to the President demanding that he should recuse himself on the ground, inter alia, that the Plaintiff would be calling the President as a witness before the Disciplinary Committee. 7. A third show cause notice dated 31st May 2010 was issued by the Secretary of BCCI to the Plaintiff under Article 32(iv) of the 6 NMS-230-S-L-195-11.doc Rules and Regulations. The Plaintiff forwarded his replies dated 31st May 2010 and 15th June 2010 to the second as well as third show cause notice respectively. On 19th June 2010 the Secretary of BCCI referred the charges levelled against the Plaintiff to the Disciplinary Committee and also forwarded the copies of the show cause notices and replies received from the Plaintiff to all the members. 8. On 19th June 2010 the President addressed a letter to the Secretary recusing himself from the proceedings. On the same day i.e. on 19th June 2010 the President issued a direction to the Secretary to convene a SGM in order to ratify/approve the Secretary's decision to refer the charges against the Plaintiff to the Disciplinary Committee and to constitute a Disciplinary Committee for holding an inquiry against the Plaintiff. Pursuant to the above, the Secretary on the same day i.e. on 19th June 2010 issued a notice for convening a SGM on 3rd July 2010 at 3.00 p.m. at Cricket Centre, Wankhede Stadium, Mumbai to transact the following business :- "1. To ratify the action of the Hon.Secretary BCCI in referring the charges against Mr.Lalit K. Modi contained in the three show cause notices to the Disciplinary Committee of the BCCI for further proceedings; 2. To reconstitute the Disciplinary Committee of BCCI for holding enquiry against Mr.Lalit K. Modi; 3. To discuss and take any other appropriate decisions with regard to the conduct of the IPL and matters arising thereof." 9. On 3rd July 2010 the SGM was conducted. At the said meeting 7 NMS-230-S-L-195-11.doc the decision to refer the charges against the Plaintiff to the Disciplinary Committee was unanimously ratified/approved and the Disciplinary Committee comprising of Mr. Arun Jaitley, Mr. Jyotiraditya Scindia and Mr. Chirayu Amin was constituted to enquire into the charges against the Plaintiff. Item 2 pertaining to the reconstitution of the Disciplinary Committee for holding enquiry against the Plaintiff is recorded in the Minutes of the said SGM as follows :- "Item No.2 : To reconstitute the Disciplinary Committee of BCCI for holding enquiry against Mr.Lalit Modi : The Chairman informed the members that a Disciplinary Committee was constituted at the AGM of the Board held on 27th September 2009. The members of this Committee were Mr.Shashank Manohar, Mr.Arun Jaitley and Mr.Chirayu Amin. The Chairman informed the members that Mr.Lalit Modi had leveled some allegations against him and also Mr.Lalit Modi stated in his reply that he would like to call me as one of the witnesses during the enquiry. In view of this, the Chairman thought it fit to recuse himself as a member of the Disciplinary Committee and requested the members to suggest another member of the Board to replace him as a member of Disciplinary Committee. The house unanimously approved Mr.Jyotiraditya Scindia as a member of the Disciplinary Committee along with Mr.Arun Jaitley and Mr.Chirayu Amin." 10. The Disciplinary Committee by its letter dated 3rd July 2010 addressed to the Plaintiff fixed the first date of hearing on 16th July 2010. However, the Plaintiff through his Advocates addressed a letter/ application dated 6th July 2010 to the Disciplinary Committee demanding recusal of all the members of the Disciplinary Committee 8 NMS-230-S-L-195-11.doc and seeking appointment of mutually acceptable independent legal luminaries to constitute the Disciplinary Committee. In paragraph 2 of the said letter the Advocates for the Plaintiff have, inter alia, recorded as follows :- "2. We reiterate that media reports and the reports of the press conference addressed by the Honorary President and the Honorary Secretary of the B.C.C.I. indicate that a Disciplinary Committee consisting of Mr.Chirayu Amin, Mr.Arun Jaitley and Mr.Jyotiraditya Scindia has been constituted to examine the allegations leveled against our client in the three Show Cause Notices issued to him. If this be so, then this would be both unfair to our client and occasion a serious miscarriage of justice, for the reasons more particularly stated below." The letter/application made on behalf of the Plaintiff was responded to by the Disciplinary Committee by its letter dated 6th July 2010. By the said reply, the Disciplinary Committee advised the Plaintiff to take up the issue of recusal in the hearing scheduled on 16th July 2010. 11. On 8th July 2010 the Plaintiff filed Writ Petition No.1370 of 2010 before a Division Bench of this Court challenging the constitution of the Disciplinary Committee in the SGM on 3rd July 2010. He also sought various other reliefs in the said Writ Petition. This Court by its order dated 15th July 2010 dismissed the said Writ Petition No.1370 of 2010 filed by the Plaintiff and held that the role of the Disciplinary Committee was only to submit its report and the governing body would thereafter take a decision. It is also held that the issue of recusal should be left to the Disciplinary Committee and the Plaintiff may challenge the constitution of the Disciplinary 9 NMS-230-S-L-195-11.doc Committee along with the challenge to the final order of punishment, if any. It was also held that it is for the Disciplinary Committee and the board to address the requirements of Rule 1(q) of the Rules and Regulations. 12. On 20th July 2010 the Plaintiff through his Advocate forwarded additional submissions to the Disciplinary Committee, for recusal of the entire Disciplinary Committee. On 25th July 2010, the BCCI submitted its objections to the application for recusal filed by the Plaintiff i.e. the Charge Sheeted Administrator (`CSA'). Paragraphs 2 and 3 of the said written objections are reproduced hereunder :- "2. The Disciplinary Committee has been constituted as per regulation 1(q) of the Memorandum, Rules & Regulations of BCCI. This Committee was constituted (reconstituted) by the decision of the General Body at the Special General Meeting held on 3rd July 2010. Under the BCCI constitution, the Disciplinary Committee has been given the responsibility of conducting an enquiry into the allegations of misconduct etc. against the CSA. This responsibility would oblige the Committee to proceed with the enquiry not withstanding any preliminary objection raised by the CSA. There would be no possibility of any enquiry being undertaken by any Committee constituted by the BCCI if the CSA's contentions are to be gone into at this preliminary stage. This is so because the application for recusal of the members of the Committee clearly demands that no one from the BCCI would be acceptable to the CSA to be a member of the Committee. The constitution of the BCCI neither provides for nor recognizes any such procedure of enquiry into charges of Misconduct etc. against an Administrator by any third parties. 3. It is most humbly submitted that the very 10 NMS-230-S-L-195-11.doc authority of the Disciplinary Committee stems only from the BCCI constitution and not otherwise. Hence the Committee would have no power to refer the charges against the CSA to any outside body of persons unconnected to the BCCI. By the same reasoning, the Committee would not have any authority to consider recusal of all the three members. Such a relief cannot be afforded to the CSA since it would amount to frustrating the proceedings, avoid his obligation to face an enquiry by the duly constituted Committee and also pervert the BCCI constitution. The CSA is one amongst several Administrators in the BCCI and no special treatment ought to be given. All Administrators and Officials are bound by the BCCI Constitution, which forms a binding contract. Hence, to be judged by one's peers would be obligatory as per the Contract and binding without exception. Hence, to even consider such a course that would make the enquiry against the CSA by the Committee infructuous, would be opposed to the BCCI Constitution and beyond the powers vested in the Committee." The BCCI thereafter by an order dated 11th August 2010 dismissed the recusal application filed by the Plaintiff. The Plaintiff filed Writ Petition No.1909 of 2010 against the order of the Disciplinary Committee dismissing his recusal application, which Writ Petition was dismissed by a Division Bench of this Court by its order dated 15th September 2010, inter alia, on the ground that the Division Bench finds substance in the order passed in Writ Petition No.1370 of 2010 specifically observing that in case the Disciplinary Committee did not accept the petitioner's objection on the ground of bias, nothing stops the petitioner from challenging the constitution of the Disciplinary Committee along with the challenge he might raise against the final order of punishment, if any. The Plaintiff has filed special leave petitions before the Hon'ble Supreme Court of India 11 NMS-230-S-L-195-11.doc being SLP Nos.15249/2010 and 27157/2010 challenging the two Orders of the Division Bench of this Court dated 15th July 2010 and 15th September 2010 respectively. The said Special Leave Petitions are pending and no interim relief is granted in favour of the Plaintiff. In the Special Leave Petitions the Plaintiff has taken a ground that the constitution of the Disciplinary Committee is ultra vires the constitution of the Defendant no.1. 13. In the meeting of the Disciplinary Committee held on 28th September 2010, the committee recorded that the Plaintiff has moved two applications. Both the applications were related to BCCI's objection on the production of certain documents including the drafts exchanged during the course of preparation of Mr.John Loffhagen's witness statement (a witness of BCCI before the Disciplinary Committee). After dealing with the said applications in detail, the Disciplinary Committee rejected the said applications of the Plaintiff and in paragraph 6 of its proceedings, inter alia, recorded the conduct of the Plaintiff who, according to them was procrastinating the proceedings by taking one stand after another. In this regard, the Disciplinary Committee noted : "6. We are constrained to observe that every day at the commencement of hearing; series of applications are moved in order to delay the conduct of proceedings. Either oral requests of written applications are moved in order to adjourn the proceedings on one pretext or the other. We have so far avoided mentioning that. This is notwithstanding the fact that it has been pointed out that our endeavour is to complete this enquiry within six months as indicated in the BCCI Regulations. Even in the matter of conducting the cross examination efforts are being made to delay the proceedings. Three 12 NMS-230-S-L-195-11.doc witnesses namely Mr.John Loffhagen, Mr.Peter Griffiths and Mr.Paul Manning have twice come to give their evidence from England. A large number of questions is confined to contents of the document, the existence of which is not disputed. Even in between questions, more than a reasonable time is spent as a result of which the proceedings have been getting delayed. Today when we assembled again for the evening session, an application is moved before us asking us to cancel the hearing fixed in Mumbai tomorrow on the 29th September, 2010. This hearing was specifically fixed on 15th September 2010 in order to ensure that the witnesses do not have to come back again in order to give their evidence." 14. On 29th September 2010 the AGM of BCCI was conducted. The Disciplinary Committee which is normally appointed at every AGM was not appointed and the said appointment was not even part of the agenda. On 14th October 2010 the Plaintiff sought copies of the Minutes of AGM held on 29th September 2010 which was supplied by the Defendant no.1 on 20th November 2010. On 21st November 2010 the Plaintiff filed an application before the Disciplinary Committee for discontinuation of the proceedings till a validly formed Disciplinary Committee is appointed. It was contended by the Plaintiff that Rule 1(q) of the Rules and Regulations requires the Disciplinary Committee to be appointed at every AGM with President as one of its members. After the SGM of 3rd July 2010, the President was replaced by Mr.Jyotiraditya Scindia. It was further contended that since no Disciplinary Committee was appointed in the AGM held on 21st November 2010, the tenure of the current Disciplinary Committee had come to an end. Upon submission of the said application by the Plaintiff, the Disciplinary Committee had raised certain queries which were responded to by the 13 NMS-230-S-L-195-11.doc Plaintiff vide his response dated 22nd November 2010. On 23rd November 2010 the BCCI responded to the Plaintiff's application regarding tenure of the Disciplinary Committee. Paragraphs 4 and 5 of the said response of the BCCI is reproduced hereunder :- "4. The Minutes of the SGM held on 3rd July 2010 clearly disclose the decision of the General Body "to reconstitute the Disciplinary Committee of the BCCI for holding enquiry against Mr.Lalit Modi" (emphasis supplied). The unanimous approval to reconstitute such a committee was peculiar to the enquiry into the charges of misconduct by the CSA and nothing else. Particular emphasis is laid on the word `reconstitute' as opposed to a replacement for the President. Hence, the intention of the General Body was to reconstitute the Committee afresh only for a specific purpose. 5. The BCCI strongly opposes any argument to the contrary. The present Committee before whom the CSA has failed to appear even once in person, is a Committee specially constituted only to enquire into the charges contained in the three show cause notices and the replies made by the CSA and for no other purpose. Having brought about a situation whereby the President BCCI stepped down from the Committee constituted for the year 2009-10 thereby leading to the dissolution of that Committee, it would not be open to the CSA to now contend that yet another Committee should have been constituted in the AGM held on 29th September 2010 to continue this enquiry. In this regard it is of no concern of the CSA whether the BCCI constituted a Disciplinary Committee in accordance with regulation 1(q) in the said AGM held on 29th September 2010 since the present Disciplinary Committee, specially constituted due to the objections of the CSA is yet to conclude its proceedings. Hypothetical arguments that the regulations do not permit the formation of two Disciplinary Committees are not open to the CSA. Equally, it is of no concern of the CSA whether there is a Committee in existence to enquire into any 14 NMS-230-S-L-195-11.doc misconduct committed by any other Administrator. The present objection is raised by the CSA only to prolong and/or frustrate the process of enquiry." In the proceedings before the Disciplinary Committee held on 23rd November 2010 the parties were called upon to make their written submissions on the position of the Disciplinary Committee and the cross examination of the witnesses was deferred till a decision was taken on the jurisdiction of the Disciplinary Committee. 15. On 27th November 2010 the Secretary of BCCI issued a notice for a SGM to be held on 11th December 2010 at 11.00 a.m. at BCCI Head Quarters, Cricket Centre, Wankhede Stadium, Mumbai to transact the following business : "1. To extend the tenure of the Disciplinary Committee consisting of Mr.Arun Jaitley, Mr.Jyotiraditya M. Scindia and Mr.Chirayu Amin till the end of enquiry being conducted against Mr.Lalit K. Modi; 2. To ratify the proceedings of the Disciplinary Committee consisting of Mr.Arun Jaitley, Mr.Jyotiraditya M. Scindia and Mr.Chirayu Amin which was specially constituted at the Special General Meeting of the Board held on 3rd July 2010 to conduct the enquiry against Mr.Lalit K. Modi; 3. To constitute Disciplinary Committee for the year 2010-11 as per regulation 1(q) of Rules and Regulations of the Board." The explanatory statement of the meeting reads as follows :- "We are informed that there may be a need to ratify the 15 NMS-230-S-L-195-11.doc continuation of the Disciplinary Committee constituted at the Special General Meeting of the Board held on 3rd July 2010 to enquire against Mr.Lalit K. Modi. As per regulation 1(q), the Disciplinary Committee constituted for the year 2009-10 could not conduct the enquiry against Mr.Lalit K. Modi since the President BCCI recused himself. The Disciplinary Committee consisting of the President, Mr.Arun Jaitley and Mr.Chirayu R. Amin was otherwise continuing till 29th September 2010. The General Body had in the Special General Meeting held on 3rd July 2010 specifically constituted a separate Disciplinary Committee for conducting the enquiry against Mr.Lalit K. Modi till conclusion. Since the proceedings have not concluded and have extended beyond 29th September 2010 we are advised that out of abundant caution, such proceedings be ratified