Case: Board of Control for Cricket in India &amp; Another Vs. Cricket Association of Bihar &amp; Others

4. Cricket Association of Bihar is a society registered under the Societies Registration Act, 1860 just as respondent -BCCI is a Society registered under the provisions of Tamil Nadu Registration of Societies Act 1975. Mr. N.Srinivisan - respondent No. 2 in Civil Appeal No.4236 of 2014 is the President of the Board besides being the Vice-Chairman and Managing Director of respondent No.3-India Cements Limited, a public Limited Company5. In a meeting held on 13 th September, 2007, the working committee of the respondent-Board appears to have taken a decision to launch what came to be known as Indian Premier League (IPL) to be run by a Committee constituted by general body of the BCCI to be called IPL Governing Council. In December 2007 the IPL Governing Council invited tenders for grant of IPL franchises on open competitive bidding basis, in which only corporate bodies were allowed to participate. India Cements Ltd. was one of those who participated in the auction for the Chennai franchise and emerged successful in the same. The team it assembled was christened Chennai Super Kings. Jaipur IPL Cricket Private Limited partly owned and promoted by respondent No.5 similarly emerged successful for the Jaipur Franchise and assembled a team called Rajasthan Royals. Franchise Agreements were, pursuant to the auction, signed by BCCI with the franchisees concerned6. On 27th September, 2008 Mr. N.Srinivasan was elected as the Secretary of the BCCI in a General Body Meeting. In the same meeting Regulation 6.2.4 of the IPL Regulations was amended to exclude from its operation events like IPL and Champions League twenty-20. We shall presently turn to Regulation 6.2.4 but before we do that we need to complete the factual narrative7. In April 2013, Special Cell, Delhi Police, Lodhi Colony, New Delhi, is said to have received secret information that certain members of the underworld were involved in fixing of matches in the recently concluded edition of the IPL. FIR No.20 of 2013 was, on that information, registered by the Special Cell, Delhi Police, under Sections 420 and 120 B of the IPC and Mr. S. Sreesanth, Mr. Ajit Chandila and Mr. Ankit Chavan of the Rajasthan Royals alongwith 7 bookies detained for allegations of spot-fixing. Shortly thereafter Mr. Gurunathan Meiyappan, son-in-law of Mr. N.Srinivasan was also arrested by the Mumbai Police on 25th May, 2013 in a spot fixing/betting case. Soon after the arrest on 26th May, 2013 came an announcement that a Commission comprising two members of the BCCI and one independent member would be constituted to enquire into allegations of betting and spot fixing. This was followed by nomination of two former Judges of the High Court of Madras and Shri Sanjay Jagdale as members of a Probe Commission to enquire into the allegations of betting and spot fixing. Shri Sanjay Jagdale, however, resigned as member of the Probe Commission leaving the two former Judges to complete the probe. Mr. N.Srinivasan announced that he was stepping aside from the post of President of the BCCI until the probe was completed ostensibly because of the alleged involvement of his son-in-law in the betting and spot fixing racket8. It was in the above backdrop that the appellant-Association filed W.P. No.55 of 2013 before the High Court of Judicature at Bombay, inter alia, for a declaration that appointment of the two-member Probe Commission was ultra vires of the Rules and Regulations of the BCCI and for a mandamus directing constitution of a panel comprising retired Judges to hold an enquiry against among others Mr. Gurunath Meiyappan for his involvement in betting and spot fixing. The petitioner further prayed for termination of the franchise agreement entered into between the BCCI, on the one hand, and Chennai Super Kings and Rajasthan Royals on the other. A mandamus directing institution of disciplinary proceedings against Mr. N.Srinivasan was also prayed for, besides a prayer for his suspension pending the probe and other proceedings. The appellant-Association in addition prayed for a prohibition against Mr. N.Srinivisan restraining him from contesting the election for the post of President of BCCI in future and representing the BCCI in the International Cricket Council (ICC)9. By its order dated 30th July, 2013, a Division Bench of the High Court of Bombay declared that the Probe Commission set up by the BCCI was not validly constituted being in violation of the provisions of Rules 2.2 and 3 of Section 6 of the IPL Operational Rules. The High Court, however, declined to grant any further relief by way of constituting a panel to conduct an enquiry under the supervision of the High Court. The High Court was of the view that constitution of a Probe Committee under Section 6 of the IPL Operational Rules was the prerogative of the BCCI. Civil Appeal No.4235 of 2014 preferred by the BCCI assails the said order of the High Court to the extent it declares the constitution of the Probe Commission to be illegal and ultra vires of the relevant rules and regulations. The Cricket Association of Bihar has also, as noticed earlier, assailed the very same order in Civil Appeal No.4236 of 2014 to the extent it has declined to grant further and consequential relief to the appellant10. When this matter came up for hearing on 27 th September, 2013 before a Bench comprising A.K. Patnaik and J.S. Khehar JJ., this Court permitted the Annual General Meeting of the respondent-BCCI to be held on 29 th September, 2013 as scheduled and so also election to the post of President, subject to the condition that in case respondent No.2-Mr. N.Srinivisan got elected, he will not take charge until further orders. When the matter came up again on 8th October, 2013, this Court noted that although Mr. N.Srinivasan had been elected as the President of the Board yet a probe into the allegations of betting and spot fixing was necessary. A reading of order dated 8th October, 2013 passed by this Court would show that the constitution of the Probe Committee comprising Mr. Justice Mukul Mudgal, retired Chief Justice of Punjab and Haryana High Court, Mr. L. Nageshwar Rao, Additional Solicitor General and Mr. Nilay Dutt, Senior Advocate, Gauhati High Court was passed with the consent of the parties. Justice Mukul Mudgal was appointed Chairman of the Probe Committee11. The Probe Committee started its proceedings in the right earnest and invited all such persons as had any information in their possession regarding the Terms of Reference to furnish such information to the Committee. It also interacted with Gurunath Meiyappan, Raj Kundara and the players against whom the BCCI had taken action for match fixing and spot fixing. Besides the Committee interacted with the law enforcement agencies, former players associated with IPL, personnel from the team management, eminent sports journalists and sport commentators, personnel from anti-corruption unit of the BCCI and ICC, personnel from the BCCI and the IPL Governing Body and persons whose name featured in the documents pertaining to the Terms of Reference. Based on the enquiries made by it from all concerned, the Committee submitted a report dated 9 th February, 2014, in which the Committee arrived at the following conclusions:(i) That Gurunath Meiyappan formed an integral part of Chennai Super Kings and most persons viewed him as the face of the team, though de-jure ownership vested in India Cements Ltd(ii) That Gurunath Meiyappan was a team official within the meaning of IPL Operational Rules if not de facto owner of CSK(iii) That Gurunath Meiyappan had knowledge of or was in a position to easily access sensitive team information, team strategies knowledge about match conditions etc. which knowledge was outside the purview of an ordinary person following the game of cricket(iv) That Gurunath Meiyappan was also a participant under IPL Anti-corruption Code hence IPL Rules and Regulations were squarely applicable to him(v) That Gurunath Meiyappan was in regular touch with bookies and punters(vi) That several calls were traced between Gurunath Meiyappan and Vindoo Dara Singh who was himself a punter in close proximity with several other bookies, evident from the telephonic transcripts produced by the Bombay Police(vii) That Mr. Ramesh Vyas and Jupiter were acting for Vindoo Dara Singh who was also placing bets for certain IPL stakeholders and actors including Mr. Gurunath Meiyappan. Mr. Meiyappan was in close contact with Mr. Vikram Agarwal who is a hotelier and alleged punter operating from Chennai as revealed by call record details produced by the Chennai Police in Crime No.1 of 2013 registered by the CBCID Branch(viii) That Mr. Gurunath Meiyappan would regularly place bets in IPL matches both in favour of his team (i.e. CSK) and against his team - a fact established from call records produced by the Mumbai Police(ix) That Mr. Gurunath Meiyappan would place bets through Vindoo Dara Singh and such bets were even placed during the course of IPL match as revealed by transcripts produced by Mumbai Police(x) That in one instance Mr. Gurunath Meiyappan made certain predictions to Mr. Vindoo Dara Singh regarding the runs that would be scored in a match between CSK and Rajasthan Royals held on 12 th May, 2013 at Jaipur. According to Mr. Meiyappans prediction that CSK would score 130-140 runs came true as CSK actually scored 141 runs only12. The Probe Committee on the above findings held Mr. Gurunath Meiyappan guilty of betting which in its opinion was accentuated by his position in the CSK. What is important is that the Probe Committee held that Mr. Gurunath Meiyappan had in his acts of betting the implicit approval of the franchisee owner India Cements thereby bringing the team to disrepute and violating Sections 2.2.1 and 2.14 of the IPL Operational Rules besides Articles 2.2.1, 2.2.1, 2.2.3 of the IPL Anti-Corruption Code and Articles 2.4.4 of the IPL Code of Conduct for Players and Team Officials13. The Committee also held that franchisee owner CSK was responsible for its failure to ensure that Mr. Gurunath Meiyappan complied with BCCI Anti-Corruption Code, IPL Operational Rules and IPL Regulations. The franchisees actions were on that basis held to be in violation of Section 4.4.1 of the IPL Operational Rules and Clause 11.3 of the franchises agreement. The Committee summed up its conclusion regarding the investigation against Mr. Gurunath Meiyappan and India Cements Ltd. the owner of ICL in the following passage:Thus, the Committee is of the view that for the acts of betting by Mr. Meiyappan, which is further accentuated by the position he held in CSK, which was held by Mr. Meiyappan with the implicit approval of the franchisee owner India Cements, Mr. Meiyappan is in violation of Sections 2.2.1 and 2.14 the IPL Operational Rules for bringing the game in disrepute, Articles 2.2.1, 2.2.2. and 2.2.3 of the IPL Anti Corruption Code for his acts of betting and Articles 2.4.4 of the IPL Code of Conduct for Players and Team Officials, for bring disrepute to the game of cricket. The said illegal acts further stand accentuated in light of his position/role in CSK. The Committee is also of the opinion that the franchisee owner of CSK is responsible for failing to ensure Mr. Meiyappan (Team Officials) had complied with the BCCI Anti-Corruption Code, IPL Operational rules, IPL Regulations and hence the franchisees actions are in violation of Section 4.4.1 of the IPL Operational Rules and Clause 11.3 of the franchises agreement14. As regards the allegations of betting and spot-fixing in IPL made against Mr. Raj Kundra, the Committee opined that further and serious investigation was required to be conducted into the said allegations for the allegations of betting if proved against Mr. Kundra and his wife Ms. Shilpa Shetty, would constitute a serious infraction of the provisions of IPL Operational Rules, the Anti-Corruption Code and the Code of Conduct for Players and Team Officials. The Committee also examined the allegations of match/spot fixing made against several players and noticed that the BCCI had conducted an inquiry into the allegations and found the same to be proved. The Committee was, however, of the view that the disciplinary action taken by BCCI against the delinquent players was adequate and satisfactory15. Having said that the Committee referred to allegations of sporting frauds made before it during its interaction with several persons connected with the game. The Committee placed before this Court the names of persons against whom such allegations were made in a sealed envelope. The Committee also mentioned other issues including the issue of conflict of interest between Mr. N.Srinivasan as the BCCI President on the one hand and CEO of India Cements Ltd. on the other. The Committee concluded its report by making certain recommendations that would, in its opinion, help remove the malaise of spot/match fixing and detect sporting frauds by BCCIs Investigation Wing16. The report submitted by the Probe Committee was then considered by this Court in its order dated 16 th May, 2014 by which this Court permitted the Probe Committee to enquire into the allegations made against those named in the sealed cover filed before the Court by the Committee including Mr. N. Srinivasan. This Court also provided the necessary manpower for a quick and effective investigation by constituting an investigation team with the direction that the team shall have the power to investigate, require attendance of witnesses and record their depositions and the power to search and seize apart from other powers necessary for conducting the investigation except the power to arrest. The Committee filed an interim report dated 1st September, 2014, and wound up its proceedings by its third and final report dated 1 st November, 2014 in which it took note of the scientific evaluation of Gurunath Meiyappans recorded voice which revealed that the recorded voice was indeed that of Mr. Gurunath Meiyappan. In a separate report submitted by Mr. Nilay Dutta, the third member of the Probe Committee, Shri Dutta had observed that for the Committee to arrive at a conclusive finding as regards the voice alleged to be that of Mr. Gurunath Meiyappan, a scientific evaluation was necessary. The Committees final report took note of the scientific evaluation and recorded a unanimous conclusion that Mr. Gurunath Meiyappan had actually indulged in betting in IPL matches. It, however, found no material to show that Gurunath Meiyappan was involved in match fixing17. As regards Mr. Raj Kundra, the Committee came to the conclusion that Mr. Kundra had indulged in betting in violation of BCCI Regulations and IPL Anti-Corruption Code. The Committee further came to the conclusion that N. Srinivasan was not involved in match fixing activity nor was he involved in preventing investigation into match fixing. The Committee held that although Mr. N. Srinivasan was aware of the violation of the players code, by individual No.3 yet no action was taken against him by Mr. Srinivasan or any other official who was aware of the infraction18. Copies of the report except the portion that related to findings qua the players were made available to counsel for the parties to give them an opportunity to respond to the same. Since Mr. Raj Kundra and Mr. Gurunath Meiyappan were not parties to these proceedings, this Court issued notice to them enclosing and made copies of the reports available to them to enable them to respond to the findings recorded by the Committee. That opportunity was usefully utilized by all the parties concerned by filing their respective responses.

Reasoning:
30. The majority view thus favours the view that BCCI is amenable to the writ jurisdiction of the High Court under Article 226 even when it is not `State within the meaning of Article 12. The rationale underlying that view if we may say with utmost respect lies in the nature of duties and functions which the BCCI performs. It is common ground that the respondent-Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations norms and standards covering all aspect of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and Supporting State Associations. It frames pension schemes and incurs expenditure on coaches, trainers etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Boards monopoly in the field of cricket. On the contrary, the Government of India have allowed the Board to select the national team which is then recognized by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organization or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action. Our answer to question No.1, therefore, is in the negative, qua, the first part and affirmative qua the second. BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India32. Having said that we find that the Probe Committee has correctly appreciated the facts as emerging from the documents and the depositions of witnesses recorded by it and rightly come to the conclusion that Gurunath Meiyappan was a team official of CSK. That is so especially when India Cements Ltd. Who owns the team made a candid admission before us that Gurunath Meiyappan was indeed a team official within the meaning of that expression under the rules. We, therefore, see no real, much less compelling reason, for us to disagree or reverse the finding recorded by the Probe Committee on that aspect33. The Probe Committee has on the basis of the material available to it further held that Gurunath Meiyappan was indulging in betting. That finding was not seriously assailed before us by Mr. Luthra, learned Senior Counsel appearing on his behalf. Mr. Luthras concern was that since Mr. Gurunath Meiyappan was being prosecuted, any specific stance that he may take is likely to prejudice him at the trial in the criminal case. We have, however, made it clear and we do so again that any finding as to the involvement of Mr. Gurunath Meiyappan in betting activities recorded by the Probe Committee or by this Court shall remain confined to the present proceedings which are addressing the limited question whether any administrative/disciplinary action needs to be taken against those accused of such activities. Having said so, we must make it clear that given the nature of the proceedings entrusted to the Probe Committee and the standard of proof applicable to the same, we see no reason to disagree with the conclusion of the Probe Committee that Gurunath Meiyappan was indeed indulging in betting. The material assembled in the course of the investigation by the Probe Committee provides a reasonably safe basis for holding that the accusations made against Gurunath Meiyappan stood established on a preponderance of probabilities. We are at any rate not sitting in appeal against the findings of a Domestic Tribunal set up to enquire into the allegations of misconduct levelled against a team official of a participating team. We are not, therefore, re-appraising the material that has been assembled by the Probe Committee and relied upon to support its finding. The finding is by no means without basis or perverse to call for our interference with the same36. This Court taking note of the observations made by the Probe Committee not only directed further investigation into the allegations against Mr. Raj Kundra but also provided necessary support to the Probe Committee to do so effectively. The Committee has on the basis of the said further investigation and enquiry come to the conclusion that Mr. Raj Kundra was a `team official, a `player support personnel and `participant within the meaning of the relevant rules and that he had indulged in betting42. Having said that we must say and say it without any hesitation that like the Disciplinary Procedure Commission even the Probe Committee set up by this Court was bound to observe the principles of natural justice in the matter of conducting the probe entrusted to it. That is because of the consequences that would flow from any finding which the Probe Committee would record against those accused of wrong doings. As seen earlier, Raj Kundra has been found to be a team official of Rajasthan Royals by the Probe Committee. Even according to the concessions made before us by the learned counsel appearing for Mr. Raj Kundra Jaipur IPL Cricket Private Ltd. he was a duly accredited team official. Such being the position a notice was required to go only to Mr. Raj Kundra for it was he alone who was alleged to have indulged in betting. Mr. Desais contention that since the Committee did not issue any notice to Jaipur IPL Cricket Private Ltd. the owner of Rajasthan Royals the finding recorded by the Probe Committee holding Mr. Raj Kundra guilty of betting was vitiated does not appear to be sound to us. Whether or not Mr. Raj Kundras misconduct can and should result in loss of franchise granted to Rajasthan Royals is a matter which may concern Jaipur IPL cricket Private Ltd. But that is a different matter altogether. The question immediately falling for our consideration is not whether the franchise held by Mr. Desais client should be cancelled. The question is whether Mr. Raj Kundra was heard by the Justice Mudgal Committee, before holding him guilty of betting. Our answer to that question is in the affirmative. Admittedly, Mr. Raj Kundra was heard by the Committee before concluding that he had indulged in betting. Absence of any notice to anyone else was of little consequence so long as the person concerned was duly notified and afforded a fair opportunity. To that extent, therefore, the grievance sought to be projected by the Jaipur IPL Private Ltd. regarding absence of any notice need be noticed only to be rejected45. The present appeals do not arise from a suit as was the position in T.P. Davers case (supra). More importantly, the present appeals arise out of writ proceedings instituted in public interest, a concept unknown when T.P. Davers case (supra) was decided. At any rate, the domestic Tribunal under the rules in the instant case was substituted by a Tribunal constituted under the orders of the Court and with the consent of the parties, to serve a larger public good viz. to find out the veracity of the serious allegations of sporting frauds like spot fixing, match fixing and betting by those who were not only participants in the tournaments played but also managing the affairs of the BCCI giving rise to serious issues of conflict of interest adversely affecting the game so popular in this country that any fraud as suggested was bound to shake the confidence of the public in general and those who love it in particular. Same is the position with the decision of the Bombay High Court in Ambalal Sarabhai and Ors. v. Phiris H. Antia (AIR 1939 Bom. 35 ). That was also a case where a member of a social club was expelled from the club and the expulsion challenged in the Court. A Single Judge of the High Court of Bombay in second appeal held that the club had not followed the elementary principles of natural justice which gave enough room to the Civil Court to interfere. The position in the case at hand is in no way analogous to the fact situation of that case. So long as Mudgal Committee has conducted the proceedings in consonance with the principles of natural justice, the Committees finding that Raj Kundra was a team official of Rajasthan Royals and that he had indulged in betting cannot be faulted46. Our answer to question No.2 is, therefore, in the affirmative49. A careful reading of the Operational Rules extracted above would show that every franchisee, player, team official, and/or match official is subject to the said rules. In terms of Rule 2.1 (supra) participation or other involvement with the league is deemed to constitute an acceptance by each person subject to these operational rules of an agreement with an obligation owed to BCCI to be bound by the regulations, the laws of cricket, the terms of the player contract and the jurisdiction of the BCCI in connection therewith. In terms of Rule 2.1.4 (supra) each person subject to these rules is restrained from acting or omitting to act in any way that would or might reasonably be anticipated to have an adverse affect on the match and/or reputation of such person, any team, any player, any team official, the BCCI, the league and/or the game or which would otherwise bring any of the foregoing into disrepute. More importantly, each franchisee is in terms of Rule 4.1.1 under an obligation to ensure that each of its team official complies with the regulations, and in particular Article 2 of the BCCI and Anti-Corruption Code. The rule, however, provides that all those persons who are accredited for the league by BCCI either centrally or locally, shall be deemed to be team officials for the purposes of those regulations. In terms of Regulation 6.4 (supra) BCCI can impose any one of the sanctions enumerated thereunder which includes suspension of the player or other person subject to the Operational Rules from playing or involving in matches for a specified period and suspension of the team or franchisee from the league. Payment of money from a person subject to these Operational Rules either to BCCI or to any other person subject to those rules is also provided as one of the permissible sanctions55. It is manifest that Article 2.2.1 treats betting as one of the actionable wrongs under the Code. In terms of Article 2.5.2 the participant who authorises, causes, knowingly assists, encourages, aids, abets, covers up or is otherwise complicit in any act or omission of the types described in Articles 2.1. to 2.4 committed by his/her coach, trainer, manager, agent, family member, guest or other associate shall be treated as having committed such an act or omission himself and shall be liable accordingly under the Anti-Corruption Code. The expression `participant has been defined to include any player, player support personnel, Umpire, match Referee or Umpire Support Personnel. The expression `player support personnel means any coach trainer, manager, selector, team official, doctor etc. Mr. Gurunath Meiyappan having been found to be a team official of Chennai Super Kings is a player support personnel hence a participant within the meaning of the Anti-Corruption Code. What is important is that apart from Gurunath Meiyappan in his capacity as the team official if any participant connected with CSK, authorises, causes, knowingly assists, encourages, aids, abets, covers up or is otherwise complicit in any act or omission he/she will also be liable to action under the Anti-Corruption Code as if he/she had himself/herself committed the act of misconduct56. In terms of Article 6 of the Code, upon consideration of relevant factors the disciplinary committee of the BCCI is empowered to impose an appropriate sanction upon the delinquent having regard to the provisions of Article 6.2 and the Table appearing thereunder. There is, therefore, no manner of doubt that even under the Anti-Corruption Code for participants any act like betting can attract sanctions not only for the person who indulges in such conduct but also for all those who authorise, cause, knowingly assist, encourage, aid, abet, cover up or are otherwise complicit in any act of omission or commission relating to such activity61. It is evident from the above provisions that the BCCI-IPL is in situations stipulated under Clause 11.3 competent to direct the termination of the agreement. What would constitute material adverse effect upon reputation or standing of the league or BCCI-IPL, BCCI, the franchisee, the team or game of cricket shall, however, depend upon the facts and circumstances of each case. What cannot be disputed is that the right to terminate the agreement is available to the BCCI-IPL even in accordance with the provisions of the franchise agreements themselves65. It is, in our opinion, difficult to hold that the circumstances enumerated by Mrs. Chidambaram proved by preponderance of probability the charge of cover up leveled against Mr. Srinivasan. The appointment of a Probe Committee comprising former Judges of the High Court cannot be seen as an attempt to cover up nor can Mr. Srinivasan be accused of withholding any incriminating material from the Probe Committee especially when there is nothing to show that Mr. Srinivasan was indeed in possession of any incriminating material that was withheld by him. Mr. Srinivasan had in fact stepped aside while the probe was on to avoid any accusation being made against him. Similarly, the allegation that an effort was made to suppress facts before the Mudgal Committee or that Mr. Gurunath was shown only as a cricket enthusiast whereas he was a team official, may, at best, raise a suspicion against Mr. Srinivasan but suspicion can hardly be taken as proof to hold him guilty of the alleged cover up. We cannot, therefore, with any amount of certainty, say that the charge of attempted cover up leveled against Mr. Srinivasan stands proved. Our answer to question No.4 is, therefore, in the negative81. There is no gainsaid that a conflict of interest situation may arise even when the rules or the norms do not specifically authorize acts or transactions that may lead to such a conflict. The scheme of the rules, may itself suggest that a conflict of interest is not welcome. And yet, such a conflict may at times arise, in which event, the rules can provide for a mechanism, to resolve the conflict as is the position in some of the rules to which our attention was drawn in regard to some other sports. The question, however, is whether a rule can by a positive and enabling provision permit acts and transactions which would by their very nature bring about a conflict of interest. Our answer is in the negative. It is one thing to say that conflict may arise even when rules do not specifically permit such a conflict situation and a totally different thing to permit acts which will per se bring about such a conflict. The case at hand falls in the latter category. Rule 6.2.4 after amendment, permits creation of commercial interests in the events organized by BCCI by its Administrators. This enabling provision disregards the potential conflict of interest which will arise between an administrators duty as a functionary of the BCCI on the one hand and his interest as the holder of any such commercial interest on the other. The respondents may argue as indeed they have done, that commercial interest held by India Cements Ltd. in the IPL and other events do not constitute a conflict per se so as to fall foul of the principle that such conflicts are impermissible on the touchstone of fairness, reasonableness and probity in the discharge of public functions by the BCCI. But that contention is specious and deserves notice only to be rejected. Three real life situations that have arisen in the past, qua India Cements owned by Mr. Srinivasans family and captained by him, simply demonstrate how such conflicts have arisen between the duty which Mr. Srinivasan owes to BCCI and through the BCCI to the cricketing world at large and his commercial if not personal interest in the events which BCCI organizes. The first instance arose when BCCI awarded compensation of a sum of Rs.10.40 crores to Chennai Super Kings - on account of the cancellation of the Champions League Tournament 2008. It is not in dispute that Mr. Srinivasan was one of those who contributed to the taking of the decision to award that amount towards compensation to his own team. True it is that a similar amount was awarded to Rajasthan Royals the other finalist also, but that does not, mean that to the extent Mr. Srinivasan, participated and deliberated in the proceedings leading to the award of a hefty amount of compensation, he was not privy to a self-serving decision that benefited India Cements Ltd. A company promoted by Mr. Srinivasan. The fact that some others also participated in the decision-making process as members of IPL Governing Council does not cure the legal flaw arising out of the benefactor also being the beneficiary of the decision. The situation is analogous to Naqishbund participating in the selection proceedings even when he was himself a candidate for selection as in Kraipaks case (supra). As a matter of fact, Naqishbund had recused himself from the proceedings when his own case was taken up for consideration. But this Court remained unimpressed and took the view that any such recusal did not make any material difference, as bias in such like situations operates in a subtle manner. In the case at hand Mr. Srinivasan had not even done that much no matter it would have made little or no difference even if he had done so. At any rate, the test is not whether bias was actually at work when the decision was taken. It is the reasonable likelihood of bias that determines whether the action can be faulted. A reasonable likelihood of bias is what can be seen even in the case at hand when the decision to award compensation was taken by the governing council of IPL with Mr. Srinivasan, present and participating as a member84. It is in the light of the above unnecessary to delve further to discover conflict of interest although, the appellant has relied upon several other matters in which there is a potential conflict between his duty as President of the BCCI and his commercial interest. Suffice it to say that amendment to Rule 6.2.4 is the true villain in the situation at hand. It is the amendment which attempts to validate what was on the date of the award of the franchise invalid as Rule 6.2.4 did not as on that date permit an administrator to have any commercial interest in any event organized by BCCI. While it may not be feasible at this stage to interfere with the award of the franchise to ICL especially when hundreds of crores have been invested by the franchisee, the amendment which perpetuates such a conflict cannot be countenanced and shall have to be struck downIt is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution90. To sum up: Public Policy is not a static concept. It varies with times and from generation to generation. But what is in public good and public interest cannot be opposed to public policy and vice-versa. Fundamental Policy of Law would also constitute a facet of public policy. This would imply that all those principles of law that ensure justice, fair play and bring transparency and objectivity and promote probity in the discharge of public functions would also constitute public policy. Conversely any deviation, abrogation, frustration or negation of the salutary principles of justice, fairness, good conscience, equity and objectivity will be opposed to public policy. It follows that any rule, contract or arrangement that actually defeats or tends to defeat the high ideals of fairness and objectivity in the discharge of public functions no matter by a private non-governmental body will be opposed to public policy. Applied to the case at hand Rule 6.2.4 to the extent, it permits, protects and even perpetuates situations where the Administrators can have commercial interests in breach or conflict with the duty they owe to the BCCI or to the people at large must be held to be against public policy, hence, illegal. That is particularly so when BCCI has in the Anti Corruption Code adopted by it recognized public confidence in the authenticity and integrity of the sporting contest as a fundamental imperative. It has accepted and, in our opinion rightly so, that all cricket matches must be contested on a level playing field with the outcome to be determined solely by the respective merits of the competing teams. The Anti Corruption Code of the BCCI does not mince words in accepting the stark reality that if the confidence of the public in the purity of the game is undermined then the very essence of the game of cricket shall be shaken. The BCCI has in no uncertain terms declared its resolve to protect the fundamental imperatives constituting the essence of the game of cricket and its determination to take every step in its power to prevent corrupt betting practices undermining the integrity of the sport including any effort to influence the outcome of any match. Unfortunately, however, the amendment to Rule 6.2.4 clearly negates the declarations and resolves of the BCCI by permitting situations in which conflict of interest would grossly erode the confidence of the people in the authenticity, purity and integrity of the game. An amendment which strikes at the very essence of the game as stated in the Anti Corruption Code cannot obviously co-exist with the fundamental imperatives. Conflict of interest situation is a complete anti-thesis to everything recognized by BCCI as constituting fundamental imperatives of the game hence unsustainable and impermissible in law91. Before we wind up the discussion on the validity of Rule 6.2.4 and the vice of conflict of interest it permits after the impugned amendment, we may in brief deal with the submissions which Mr. Kapil Sibal, learned senior counsel for the respondent Mr. Srinivasan urged before us. It was contended by Mr. Sibal that IPL was conceived as a commercial enterprise, structured in a manner that it eliminated all possibility of conflict of interest. That is because all decisions, financial or otherwise relating to the IPL, are already known to all the participants leaving no discretion with any official of the BCCI. The commercial interest of an administrator in the IPL can never be in conflict with the administrators duty in the BCCI argued Mr. Sibal. That apart, every franchise is treated equally since the contractual obligation with the BCCI is identical for each franchise leaving no possibility of differential treatment by BCCI. It was also argued that IPL is Distinct from other matches/events conducted by the BCCI so that there is no question of any conflict of interest between the role of a person as an administrator of BCCI and an owner of an IPL franchise92. There is no gainsaying that Mr. Sibal was right in contending that in certain areas the BCCI or anyone of its administrators/office bearers does not have any discretion except to go by what is prescribed as a uniform pattern for all the franchisees. But, to say that there is no possibility of any conflict of interest arising in IPL format between an administrators duty and the commercial interest if any held by him is not in our opinion correct. The three live situations to which we have adverted in the earlier part of this order in which a conflict has arisen in the case at hand only prove that conflict of interest is not only possible but ominously looming large if an administrator also owns a competing team. So also the contention that, IPL being a commercial venture of BCCI and a platform for Indian and International cricketers to make a living from the sport, is neither here nor there. No one has found fault with IPL as a format, nor is there any challenge to the wisdom of BCCI in introducing this format for the benefit of cricketers or for its own benefit. The question is whether the BCCI can afford to see the game lose its credibility in the eyes of those who watch it, by allowing an impression to gather ground that what goes on in the name of the game is no more than a farce because of sporting frauds like betting, match fixing and the like. Can the BCCI live with the idea of the game being seen only as a means to cheat the unsuspecting and gullible spectators watching the proceedings whether in the stadium or on the television with the passion one rarely sees in any other sporting enterprise. BCCIs commercial plans for its own benefit and the benefit of the players are bound to blow up in smoke, if the people who watch and support the game were to lose interest or be indifferent because, they get to know that some business interests have hijacked the game for their own ends or that the game is no longer the game they know or love because of frauds on and off the field. There is no manner of doubt whatsoever that the game enjoys its popularity and raises passions only because of what it stands for and because the people who watch the sport believe that it is being played in the true spirit of the game without letting any corrupting influence come anywhere near the principles and fundamental imperatives considered sacrosanct and inviolable. All told whatever be the format of the game and whatever be the commercial angles to it, the game is what it is, only if it is played in its pristine form free from any sporting fraud. And it is because of that fundamental imperative that these proceedings assume such importance. The fundamental imperatives, to which BCCI is avowedly committed in the Anti Corruption Code, cannot be diluted leave alone neglected or negated97. It was lastly argued by Mr. Sundaram, learned senior counsel for BCCI that if administrators were held to be disentitled to have any commercial interest in BCCI events including IPL, the same may adversely affect not only the IPL format but certain outstanding sports persons who by reason of their proficiency in cricket and its affairs are often engaged as coaches, mentors, commentators or on similar other positions may also be rendered disqualified to get such engagements. This would mean that the teams will lose the advantage of having these outstanding sports persons on their side while the sport persons will lose the opportunity to earn a livelihood only because they hold or have at an earlier point of time held an administrative office in BCCI. Such an interpretation or disqualification would not be in the interest of the game or those who have distinguished themselves in the same, argued Mr. Sundaram98. The expression `Administrator appearing in Rule 6.2.4 has been defined to mean and include present and past Presidents, Honorary Secretaries, Honorary Treasures, Honorary Joint Secretaries of the BCCI. Presidents and Secretaries present or past of members affiliated to BCCI are also treated as administrator along with representative of a member or an associate member or affiliate member of the Board. That apart, any person connected with any of the committees appointed by the Board are also treated as administrator; none of whom could have any commercial interest in any BCCI event but for the impugned amendment to Rule 6.2.4. What is important, however, is that the challenge in the present proceedings arises in the context of Mr. Srinivasan, President of BCCI having commercial interest in the IPL by reason of the company promoted by him owning Chennai Super Kings. It is common ground that the owner of a team buys the franchise in an open auction. India Cements Ltd. owner of CSK has also bought the Chennai franchise in an open auction held by BCCI. This sale and purchase of the franchises is a purely commercial/business venture for India Cements Ltd. Involving investment of hundreds of crores. The franchise can grow as a `brand and in terms of franchise agreement executed between franchisee and the BCCI be sold for a price subject to the conditions stipulated in the agreement. There is, therefore, no manner of doubt that the investment made by India Cements Ltd. is a business investment no matter in a sporting activity. To the extent the business investment has come from India Cements Ltd. promoted by Mr. Srinivisan and his family, India Cements and everyone connected with it as shareholders acquire a business/commercial interest in the IPL events organised by BCCI. The association of India Cements Ltd. And Mr. Srinivasan with IPL is being faulted on account of this commercial interest which India Cements Ltd. has acquired for itself. Whether or not players engaged as mentors, coaches, managers or commentators in connection with the events for remuneration payable to them will also be ineligible for any such assignment does not directly fall for our consideration in these proceedings. That apart, it may well be argued that there is a difference between commercial interest referred to in Rule 6.2.4 and `professional engagement of a player on account of his proficiency in the game. It may be logically contended that the engagement of a player even though made on a remuneration remains a professional engagement because of his professional skill in the game of cricket and not because he has made any investment like India Cements Ltd. has done in acquiring a franchise or in any other form. Be that as it may, we do not consider it necessary or even proper to authoritatively pronounce upon the question whether such engagement of players, as are mentioned above, would fall foul of the prohibition contained in Rule 6.2.4 as it stood before amendment. The issue may be examined as and when the same arises directly for consideration. All that we need say at this stage is that whether or not a player who is an `administrator by reason of an existing or earlier assignment held by him can acquire or hold a commercial interest in any BCCI event, will depend upon the nature of the interest that such person has acquired and whether the same is purely professional or has any commercial element to it. Beyond that we do not propose to say anything at this stage. Question No. 5 is accordingly answered in the affirmative and Amendment to Rule 6.2.4 permitting Administrators of BCCI to acquire or hold commercial interests in BCCI like IPL, champions league and T-20 held to be bad for the reasons we have set out in the foregoing paras104. From a reading of the report submitted by the investigating team, we find that the team intended to request Mr. Virk to join the investigation and part with the information with him regarding Mr. Sundar Ramans proximity to Vindoo Dara Singh, the alleged bookie/contact of the bookie. The Probe Committee has stopped short of recording a specific finding regarding the complicity of Mr. Sundar Raman in the betting racket, nor is there any explicit justification provided by the report for the finding that 8 and not 350 calls were made between Mr. Sundar Raman and Vindoo Dara Singh. Suffice it to say that the report submitted by the investigating team and the Probe Committee do not indict Mr. Sundar Raman in clear words. The observations made regarding his role and conduct simply give rise to a serious suspicion about his involvement in the betting affairs of the team owners/officials apart from suggesting that having received information about betting activities in connection with IPL matches, he remained totally inert in the matter instead of taking suitable action warranted under the circumstances105. The question then is whether Mr. Sundar Raman can be declared to be completely innocent or does his conduct and activities call for any other probe or investigation. Mr. Sundar Raman was, and continues to be the Chief Operating Officer of IPL. He has held and continues to hold a very important position in the entire system. On his own showing he was dealing with practically all aspects of organization of the game, including facilitating whenever necessary the appearance and participation of celebrities and organizing tickets, accreditation cards and such other matters. He was, therefore, the spirit behind the entire exercise and cannot be said to be unconcerned with what goes on in the course of the tournament especially if it has the potential of bringing disrepute to the game/BCCI. We are, therefore, not inclined to let the allegations made against Mr. Sundar Raman go un-probed, even if it means a further investigation by the investigating team provided to the probe committee or by any other means. Truth about the allegations, made against Mr. Sundar Raman, must be brought to light, for it is only then that all suspicions about the fraudulent activities and practices floating in the media against the BCCI and its administrators in several proceedings before different courts can be given a quietus. Having said that we propose to issue appropriate directions regarding further investigation and probe into the activities and conduct of Mr. Sundar Raman on conditions that we will stipulate separately in the later part of this judgmentHaving given our anxious consideration to that aspect we are of the view that neither of these two courses would be appropriate. We say so because the power to punish for misconduct vests in the BCCI. We do not consider it proper to clutch at the jurisdiction of BCCI to impose a suitable punishment. At the same time we do not think that in a matter like this the award of a suitable punishment to those liable for such punishment can be left to the BCCI. The trajectory of the present litigation, and the important issues it has raised as also the profile of the individuals who have been indicted, would, in our opinion, demand that the award of punishment for misconduct is left to an independent committee to exercise that power for and on the behalf of BCCI. This would not only remove any apprehension of bias and/or influence one way or the other but also make the entire process objective and transparent especially when we propose to constitute a committee comprising outstanding judicial minds of impeccable honesty108. The other aspect, which needs attention, is the need for a probe into activities of Mr. Sundar Raman. We are of the view that, once we appoint a Committee to determine and award punishment, we can instead of referring the matter back to Mudgal Committee, request the proposed new Committee to examine the role played by Mr. Sundar Raman, if necessary, with the help of the investigating team constituted by us earlier109. The proposed Committee can also, in our opinion, be requested to examine and make suitable recommendations on the following aspects:(i) Amendments considered necessary to the memorandum of association of the BCCI and the prevalent rules and regulations for streamlining the conduct of elections to different posts/officers in the BCCI including conditions of eligibility and disqualifications, if any, for candidates wanting to contest the election for such posts including the office of the president of the BCCI(ii) Amendments to the memorandum of association, and rules and regulation considered necessary to provide a mechanism for resolving conflict of interest should such a conflict arise despite Rule 6.2.4 prohibiting creation or holding of any commercial interest by the administrators, with particular reference to persons, who by virtue of their proficiency in the game of Cricket, were to necessarily play some role as Coaches, Managers, Commentators etc(iii) Amendment, if any, to the Memorandum of Association and the Rules and Regulations of BCCI to carry out the recommendations of the Probe Committee headed by Justice Mudgal, subject to such recommendations being found acceptable by the newly appointed Committee(iv) Any other recommendation with or without suitable amendment of the relevant Rules and Regulations, which the Committee may consider necessary to make with a view to preventing sporting frauds, conflict of interests, streamlining the working of BCCI to make it more responsive to the expectations of the public at large and to bring transparency in practices and procedures followed by BCCI.