Andhra Pradesh High Court - Amravati
V. Durga Prasad, vs Andhra Cricket Association, on 16 March, 2022
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONOURABLE SRI JUSTICE M. GANGA RAO
Writ Petition No.27180 of 2021
ORDER:
The petitioner filed this writ petition seeking writ of certiorarified mandamus for quashing the impugned order dated 03.11.2021 passed by the Ethics Officer/Ombudsman of the Andhra Cricket Association (in short 'ACA') whereby relinquished the petitioner from the office of Secretary of ACA as being illegal, arbitrary, contrary to the Bye-laws, Rules and Regulations of ACA and violative of principles of natural justice.
2. The 2nd respondent Ethics Officer/Ombudsman of the 1st respondent is a quasi judicial authority which has come into existence by virtue of Justice Lodha Committee reforms. The Hon'ble Supreme Court in Board of Control for Cricket in India Vs. Cricket Association of Bihar and others1, appointed a seven Member Committee headed by Justice R.M.Lodha, former Chief Justice of India to examine and make suitable recommendations on several aspects such as making of amendments to Memorandum of Association of Board of Control for Cricket in India, Rules and Regulations and to prevent frauds, conflict of interests and streamline its work. On 18.12.2015 the Committee recommended appointment of Ombudsman and Ethics Officer. The Hon'ble Supreme Court accepted the recommendations of the Committee and directions were given to Board of Control for Cricket in India (in short 'BCCI') to implement the recommendations. Accordingly, amendments were made to the 1 (2015) 3 SCC 251 2 Memorandum of Association and Bye-laws of the 1st respondent and the rules and regulations and Bye-laws were registered. Chapter 8 Rule 43 deals with the appointment of Ethics Officer and his term of the office. Rule 41 deals with transparency. Rule 42 deals with conflict of interest. Rule 43 reads under:
43. THE ETHICS OFFICER (1) The ACA shall appoint an Ethics Officer at the Annual General Meeting for the purpose of guidance and resolution in instances of conflict of interest. The Ethics Officer shall be a retired Judge of a High Court so appointed by the ACA after obtaining his/her consent and on terms as determined by the ACA in keeping with the dignity and stature of the office. The term of an Ethics Officer shall be one year, subject to a maximum of three terms in office.
(2) Any instance of conflict of interest may be taken cognizance of by the Ethics Officer:
(a) Sumo Motu;
(b) By way of a complaint in writing to the official postal or email address; or
(c) On a reference by the Apex Council;
(3) After considering the relevant factors and following the principles of natural justice, the Ethics Officer may do any of the following.
(a) Declare the conflict as Tractable and direct that:
(i) The person declare the conflict of interest as per Rule 38(3)(a); or
(ii) The interest that causes the person rescue from the conflict be relinquished; or
(iii) the person rescue from discharging the obligation or duty so vested in him or her;
(b) Declare the conflict as intractable and direct that:
(i) the person be suspended or removed from his or her post;
(ii) any suitable monetary or other penalty be imposed; and
(iii) the person be barred for a specified period or for life from involvement with the game of cricket. The Ethics Officer is wholly empowered to also direct any additional measures or restitution as is deemed fit in the circumstances.3
Rule 44 reads as under:
44. THE OMBUDSMAN (1) The ACA shall appoint an Ombudsman at the Annual General Meeting for the purpose of providing an independent dispute resolution mechanism. The Ombudsman shall be a retired Judge of the High Court so appointed by the ACA after obtaining his/her consent and on terms as determined by the ACA in keeping with the dignity and stature of the office. The terms of the Ombudsman shall be one year, subject to a maximum of 3 terms in office.
(2) The ACA shall, in consultation with the CEO frame Regulations regarding the disciplinary and conduct of the Players, Match Officials, Team Officials, Administrators, Committee Members and others associated with the ACA.
As per the procedure, the Chief Executive Officer of ACA shall forthwith make a preliminary enquiry and call for explanations from the concerned persons and submit its report to the Apex Council not later than 15 days from the date of reference being made by the Apex Council. On receipt of report, the Apex Council shall forward the same to the Ombudsman, who shall call for all particulars and unless it decides that there is no prima facie case and accordingly drops the charge, hearing shall commence on the case and the same shall be completed as expeditiously as possible by providing a reasonable opportunity to the parties of being heard. If despite due notice, any party fails to submit any cause or submits insufficient cause, the Ombudsman shall after providing reasonable opportunity of hearing to the parties concerned, pass appropriate order. In the event any party refused and or fails to appear despite notice, the Ombudsman shall be at liberty to proceed ex-parte on the basis of the available records and evidence.
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3. When the elections for Krishna District Cricket Association (in short 'KDCA') are due in August, 2020, the full Member of the ACA, the Vice President of KDCS Sri B. Prabhu Prasad made a complaint on 19.6.2020 to the ACA as to conducting of elections as per the amended Bye-laws, rules and regulations of the ACA and recommendations of Justice Lodha Committee reforms. The ACA being full Member of the BCCI and KDCA being the member of the ACA, the same was referred by the Secretary of KDCA to the ACA who in turn referred to the Apex Council of ACA. The Apex Council decided to refer the complaint to Ombudsman for its clarification and decision. The Chief Executive Officer of ACA referred the complaint to Ombudsman and the same was read as Case No.5 of 2020. The 2nd respondent Ombudsman on 19.7.2020 on being taken cognizance of the complaint felt that Justice Lodha Committee reforms have to be implemented in the district level also. Rule 43, 44 and 45 of the 1st respondent Bye-laws empowers the 2nd respondent Ombudsman to take cognizance in disputes between or among the ACA, its members, ACA franchise, zones and the cricket players. Notices were issued to the respondent and also passed an interim order dated 19.7.2020 directing the respondents not to conduct elections to the KDCA until further orders. The KDCA and ACA filed its counter affidavits. The KDCA conducted meeting on 12.9.2020 with regard to the implementation of the orders dated 19.7.2020 passed by the Ombudsman vide its letter dated 14.9.2020 to the Ombudsman that it was resolved to implement Justice Lodha Committee reforms, subject to the instructions of the 1st respondent/ACA. The 3rd respondent also participated in the meeting. On 07.8.2020, the petitioner filed counter in the capacity of 1st respondent/ACA raised about locus standi of the 3rd 5 respondent stating that there was no dispute between the 1st respondent and in all its full members and as such, the 2nd respondent Ombudsman has no jurisdiction and the Standing Counsel of ACA also filed counter accepting to adopt Justice Lodha Committee reforms. The 2nd respondent Ombudsman passed order dated 10.11.2020 dealing with various aspects and has chosen to consider the counter filed by the Standing Counsel (Note: Page 2 of the 1st respondent counter) as that of the writ petition in the capacity of Secretary and observed that the counter filed in the writ petition is against the interest of 1st respondent/ACA. Pending adjudication of the preliminary issue raised by the writ petitioner with regard to jurisdiction of the 2nd respondent directing the KDCA to implement Justice Lodha Committee reforms and on 18.11.2020, the Secretary of KDCA submitted letter to the 1st respondent stating that on 11.11.2020 the Annual General Body Meeting was conducted and it was decided to implement Justice Lodha Committee reforms with immediate effect and also to elect new office bearers and the said letter was circulated to all the Apex Council Members on 26.11.2020 and on the same day after obtaining clarification, the writ petitioner informed KDCA to conduct elections in accordance with Rule 6 and Rule 3 (b) of the 1st respondent ACA Bye- laws and accordingly, one T. Satyanandam was appointed as Election Officer and he has conducted elections and KDCA elected its new body unanimously on 03.12.2020. On 05.12.2020, the 2nd respondent passed orders declaring the elections of KDCA as null and void. As latest order dated 10.11.2020 was not followed, the writ petitioner in the capacity of the Secretary of ACA participated in the KDCA meetings got passed resolution to conduct elections to KDCA. The 3rd respondent on 6 07.4.2021 complained that the writ petitioner provided active assistance to KDCA to conduct illegal elections. The CEO of ACA submitted a report to the Apex Council that another complaint was made by the 3rd respondent which was received by the 2nd respondent on 14.7.2021 which was directed to be checked up to 19.7.2021 and the 2nd respondent passed order in I.A.No.1 of 2021 and posted the matter on 19.8.2021 ordering notices to the witnesses and to come along with the documents pertaining to the elections. The writ petitioner was made a party to the proceedings. When the writ petitioner filed counter and applications making allegations against the Ombudsman and when the same was not deleted as directed by the Ombudsman, the 2nd respondent issued show cause notice on 08.9.2021 for contempt of authority and called for explanation from the writ petitioner for which on 15.09.2021 the writ petitioner submitted explanation tendering apology. On 17.09.20221, the 2nd respondent issued show cause notice of contempt of authority of Ombudsman for which on 25.09.2021 the writ petitioner submitted explanation tendering apology. On 11.10.2021, the Ombudsman exercising power under Rule 45 of the ACA Rules stripped off the powers of the Secretary of ACA for his misbehaviour. He filed W.P.No.24276 of 2021 before this Court alleging that the Ombudsman has no power to exercise powers under Contempt of Court of Act. The interim order to suspend the Ombudsman order was refused by reasoned order against which W.A.No.736 of 2021 was filed. The impugned order was suspended for a limited term and thereafter the same was not extended. The matter came up for hearing on 13.12.2021. In the meanwhile, on 03.11.2021 the Ombudsman allowed I.A.No.1/2021 in Case No.5 of 2020 and imposed punishment of 7 relinquishment of secretary position with immediate effect. Being aggrieved by the same, the present writ petition is filed.
4. Sri Anup Koushik Karavadi, learned counsel for the petitioner while reiterating the averments of the writ affidavit would contend that the 2nd respondent Ombudsman passed the impugned order without deciding the preliminary issue raised by the petitioner and that the Ombudsman has no jurisdiction on the complaint made by the 3rd respondent and there is no dispute between the ACA and KDCA and its members. The 3rd respondent has no locus standi to file such a complaint. Thereafter, the Ombudsman suo-motu receiving the complaint from the 3rd respondent alleging that the KDCA conducted elections with the active connivance of the writ petitioner taking into consideration, no proper opportunity was given to the petitioner and passed the impugned order relinquishing the petitioner from the post of Secretary. In the earlier orders stripping off the petitioner as Secretary the same is pending before this Court in W.A.No.736 of 2021. The impugned order is violative of principles of natural justice.
5. The 1st and 3rd respondents filed counters narrating the sequence of events how the petitioner provided active assistance to KDCA to conduct illegal elections contrary to the orders passed by the 2nd respondent on 10.11.2020 without amending by Bye-laws, rules and regulations of KDCA as per the Apex Court directions by implementing Justice Lodha Committee reforms.
6. Sri Y.V.Ravi Prasad, learned Senior Counsel appearing for Sri N. Ravi Prasad, counsel on record for the 1st respondent ACA while reiterating the averments made in the counter filed by the 1st 8 respondent ACA states that the 2nd respondent Ombudsman has power to deal with the complaint of the 3rd respondent under Rule 3 of the 1st respondent Bye-laws. The 2nd respondent being Ethics Officer can take up issues suo-motu or by way of complaint in writing or on by reference by the Apex Council in the case of conflict of interest or otherwise. The Ombudsman could also entertain complaint under Rule 45 (1) (a) of the 1st respondent/ACA Bye-laws, any Member, Association and Franchise can raise dispute before the 2nd respondent Ombudsman and under Rule 45 (1) (b), proceedings can be initiated against any member or administrator if his actions are detrimental to the interest of the ACA. Under Rule 45 (1) (c), misconduct or breach by others can also be dealt with and under clause (d) even public can raise a dispute before the Ombudsman. As the Ombudsman is omnipotent, independent authority to adjudicate the dispute or complaint raised before it, even he has got power to impose penalties in case orders are not implemented. As the writ petitioner violated series of orders of the Ombudsman dated 10.11.2020 and also subsequent series of orders, his actions are contrary and in violation of judgment of the Apex Court in BCCI Vs. Cricket Association of Bihar and Justice Lodha Committee reforms. The 2nd respondent has elaborately dealt with how the writ petitioner has violated the orders of the Ombudsman dated 10.11.2021 and thereafter the writ petitioner being the Secretary of ACA instead of implementing the Bye-laws for its full members to amend the memorandum of association, rules and regulations as per the recommendations of Lodha Committee and in the counter he has challenged the authority of the Ombudsman and also made several allegations against it. In spite of directions to remove the offending 9 portion of the counter, he has not withdrawn the said allegations made against the Ombudsman and the Ombudsman passed the impugned order. The 3rd respondent being Vice President of KDCA which is full member of the ACA and the complaint of the 3rd respondent was referred by the Secretary, KDCA to the 1st respondent Apex Council. In fact, the same was taken on file being referred by the Apex Council and was numbered as Case No.5 of 2020 and proceeded in strict adherence of the procedure, the same cannot be said to be without jurisdiction. The contention of the writ petitioner that the 3rd respondent has no locus standi to file the complaint is untenable. He attributed mala fides to the Ombudsman. The same was re-extracted in the impugned order and there is no procedural irregularity in passing the impugned order. The impugned order is passed in strict adherence to the provisions of Rule 43 and 45 of the 1st respondent ACA Bye-laws. Sri Y.V.Ravi Prasad would further contend that the writ petition is not maintainable as the impugned order is passed as per the provisions of Rule 43 and 45 of the 1st respondent ACA Bye-laws. The Ombudsman created is an internal dispute redressal mechanism. The 2nd respondent Ombudsman is an arbitrator for all practical purposes and the complaint of any breach of Bye-laws in passing the impugned order or for any violation of principles of natural justice, the petitioner has to approach the Civil Court under Section 23 of the Andhra Pradesh Societies Registration Act, 2001.
7. Having considered the facts and circumstances of the case, submissions of the counsel and on perusal of the record, this court felt that the following three issues fell for consideration of this Court: 10
(1) Whether the 2nd respondent Ombudsman has got power to entertain complaint filed by the 3rd respondent complaining conduct of elections to the KDCA without amending the Memorandum of Association, Bye-laws and regulations of KDCA;
(2) Whether the Ombudsman has power or authority to pass the impugned order; and (3) Whether the writ petition is maintainable before this Court against the impugned order.
8. Issue No.1:
The 3rd respondent made a complaint that the elections to the KDCA were due in August, 2020 and without amending the memorandum of association, Bye-laws, regulations of the KDCA being a full member of ACA, the same was referred by the Secretary of the KDCA to the ACA which in turn was referred to the Apex Council. The Apex Council decided to refer the same to the Ombudsman for clarification. Accordingly, the CEO of ACA referred the complaint to the Ombudsman, the same was numbered as Case No.5 of 2020 and notices were sent to the respondents. The counters were filed by the respondents. The Ombudsman passed elaborate orders on 10.11.2020 and KDCA was directed to take steps for implementing Lodha Committee reforms which was adopted by the ACA through its Bye- laws and accordingly passed necessary resolution in the General Body Meeting within two months and till then, the existing body will continue and if the reforms are not implemented within two months, the ACA should make necessary incharge arrangements and the ACA is directed to prepare the Draft Bye-laws, rules and regulations for KDCA 11 and send the same to them for implementation. The ACA is also directed to implement the reforms in the entire State of Andhra Pradesh and in all other District Associations and Clubs within three months. KDCA also passed resolution on 11.11.2020 in its Annual General Body Meeting wherein a decision was taken to implement the Lodha Committee reforms and to amend the KDCA Bye-laws as and when the ACA prepares the draft Bye-laws and circulate the same. On 26.11.2020, the Secretary, without even waiting for the decision of the Apex Council, on his own, addressed letter to the Secretary, KDCA permitting them to conduct elections by following Rule 3 and Rule 6 of ACA Regulations and accordingly, elections were conducted with the active connivance of the writ petitioner. On 25.11.2020, one of the members of the KDCA opposed elections as the same is in violation of the orders of the 2nd respondent Ombudsman dated 10.11.2020. On 01.12.2020, the 3rd respondent also made a complaint to the Apex Council with a request to initiate action against the writ petitioner for violation of the orders passed by the Ombudsman dated 10.11.2020 When the ACA did not respond to the complaint, the same was brought to the notice of the Ombudsman. The Ombudsman had taken the complaint suo motu as the main issue of conducting elections to the KDCA by amending the memorandum, bye laws, rules and regulations of KDCA as per the recommendations of Lodha Committee is pending.
The writ petitioner being a Secretary of the ACA on 26.11.2020 addressed letter to the Secretary KDCA permitting to conduct elections by following Rule 3 (b) and 6 of ACA Regulations. Without making amendments to the Bye laws and regulations of the KDCA in contravention of the orders of the Apex Court in BCCI Vs. Cricket 12 Association of Bihar, wherein the Hon'ble Supreme Court accepted the recommendations of Lodha Committee and directed the BCCI and its full members to implement Lodha Committee reforms by making necessary amendments. Notices were issued to the petitioner as well as to the respondents. The petitioner filed counters and petitions challenging the authority of the Ombudsman for which the petitioner was directed to remove the objectionable allegations made against the Ombudsman. Without heeding the same, he pursued the matter before the Ombudsman. The Ombudsman has every right or authority being a Ethics Officer/Ombudsman of the 1st respondent ACA as per Rule 43, 44 and 45 to receive the complaint on reference by the ACA and also suo motu complaint. As the petitioner instead of implementing the orders passed by the Ombudsman, conducted elections to the KDCA for which the complaint is filed by the 3rd respondent and Everest Club Member of the KDCA, hence it cannot be said that the 3rd respondent has no locus standi to file complaint and it cannot be said that there is no dispute between the 3rd respondent and the ACA to refer the dispute to Ombudsman asking for clarification. Accordingly, the issue No.1 is answered.
9. Issue No.2 The creation of Ethics Officer/Ombudsman in the administration and functioning of BCCI and its full members as recommended by Justice Lodha Committee reforms and accepted by the Apex Court and it is an independent internal disputes redressal mechanism created as per the orders of the Apex Court in BCCI Vs Cricket Association of Bihar. Accordingly, amendments were brought into existence in the Memorandum and Bye-laws, rules and regulations of the ACA, Full 13 Member of the BCCI and ACA and its members have to implement the recommendations of the Justice Lodha Committee reforms as directed by the Hon'ble Supreme Court. The 2nd respondent being an Ethics Officer and Ombudsman has conferred power under Rule 43, 44 and 45 to receive the complaint as per the procedure contemplated under Rule 45. Rule 45 reads as under:
45. GRIEVANCE REDRESSAL (1) The types of disputes/differences that form the Ombudsman's ambit and the procedures for redressal are:
(a) Member, Association & Franchisee Disputes Any disputes between or among the ACA, its Members, APL Franchisees, zones and the Cricket Players' Association shall be automatically referred to the Ombudsman.
Procedure: Both parties would submit their arguments and a hearing would be conducted following the principles of natural justice and exercising all powers of enquiry and hearing as the Ombudsman deems fit before appropriate orders are passed.
(b) Detriment caused by Member or Administrator If any Member or any Administrator of the ACA commits any act of indiscipline or misconduct or acts in any manner which may or likely to be detrimental to the interest of the ACA or the game of cricket or endanger trhe harmony or affect the reputation or interest of the ACA or refuses or neglects to comply with any of the provisions of the Memorandum and/or the Rules and Regulations of the ACA and/or the Rules of conduct framed by the ACA, the Apex Council, on receipt of any complaint shall issue a show cause notice calling for explanation and on receipt of the same and/or in case of no cause or insufficient cause being shown, refer the same to the Ombudsman.
Procedure: The Ombudsman shall, after providing opportunity of hearing to the parties concerned, pass an appropriate order.
(c) Misconduct or Breach by others In the event of any complaint being received from any quarter or based on any report published or circulated or on its own motion, of any act of indiscipline or misconduct or violation of any of the Rules and Regulations by any Player, Umpire, Team Official, Selector or any person associated with the ACA, the Apex Council shall refer the same within 48 hours to the CEO to make a preliminary enquiry.
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Procedure: The CEO shall forthwith make a preliminary inquiry and call for explanations from the concerned person(s) and submit his report to the Apex Council not later than 15 days from the date of reference being made by the Apex Council. On receipt of the report, the Apex Council shall forward the same to the Ombudsman, who shall call for all particulars and unless it decides that there is no prima facie case and accordingly drops the charge, hearing shall commence on the case and the same shall be completed as expeditiously as possible by providing a reasonable opportunity to the parties of being heard. If despite due notice, any party fails to submit any cause or submits insufficient cause, the Ombudsman shall after providing reasonable opportunity of hearing to the parties concerned, pass appropriate order. In the event any party refuses and or fails to appear despite notice, the Ombudsman shall be at liberty to proceed ex-parte on the basis of the available records and evidence.
(d) By the public against the ACA Where a member of the public is aggrieved concerning ticketing and access and facilities at stadia, the same may be brought in the form of a complaint to the Ombudsman.
Procedure: The Ombudsman would adopt the same procedure as laid down in (c) above after referring the complaint to the CEO to solicit a report on the complaint.
(2) The place of hearing shall be decided by the Ombudsman from time to time. The Ombudsman shall have the power to impose penalties as provided in the Regulations for Players, Team Officials, Administrators, Managers and Match Officials of the ACA.
(3) The decision of the Ombudsman shall be final and binding and shall come into force forthwith on being pronounced and delivered."
Case No.5 of 2020 was taken on the file by the Ombudsman on being referred by the Apex Council of the ACA. In the process, he passed series of interim orders. Passing of interim orders by the 2nd respondent is co-extensive to that of the final orders. A perusal of the impugned order reveals that the primary objection of the writ petitioner with regard to entertaining of the complaint by the Ombudsman was dealt by the 2nd respondent elaborately in Para Nos.9, 10, 16, 17, 33, 34 and 35 and exercising the power under Bye-laws 43, 44 and 45, he 15 passed the impugned order, by giving opportunity to the petitioner by issuing show cause notice, explanation also considered when he has adamantly challenged the authority of the Ombudsman and making reckless allegations against the Ombudsman in spite of the orders to delete the objectionable portions of the counter but he pressed the same counters in service to defend his case before the Ombudsman and the Ombudsman passed the impugned order, which cannot be said to be without any jurisdiction or authority. Accordingly, Issue No.2 is answered.
10. Issue No.3:
As the impugned order is passed exercising the powers under Rule 43, 44 and 45 of Bye-laws of ACA following the procedure contemplated therein and Ombudsman is an independent internal dispute redressal mechanism created as per the directions of the Apex Court in the case of BCCI Vs Cricket Association of Bihar and he is like that of an arbitrator created under the contracts and any breach of Bye- laws as held by this Court in the case of Mohammed Azharuddin Vs. K. John Manoj and others2, the petitioner has to approach the Civil Court under the provisions of Section 23 of the Andhra Pradesh Societies Registration Act, as the 1st respondent was registered as a Society under Societies Registration Act. This Court found that after receiving the complaint, petitioner was given fair and full opportunity to file counter and lead evidence, show cause notice was also issued and considered explanation and Ombudsman elaborately dealt with all the series of orders passed by it and its compliance before conducting elections and filing of counter and was given ample opportunity to 2 Manu/TL/0703/2021 16 defend his case and thereby not violated any principles of natural justice. Hence, contra contentions of the counsel for the petitioner that the 2nd respondent had illegally terminated the petitioner from the elected office of the Secretary of 1st respondent in blatant violation of Article 14 and 19 (1) (g) of the Constitution of India and also contrary to the Bye-laws, Rules and Regulations of the 1st respondent Association, violative of principles of natural justice and contrary to the provisions of the Contempt of Courts Act, 1971 are untenable, as the 2nd respondent has given full and fair opportunity to the petitioner and it has power to impose penalties for the violation of its orders as it is created as per the orders of the Apex Court. Accordingly, it is held that the writ petition is not maintainable before this Court against the impugned order. Accordingly, the Issue No.3 is answered.
11. For the reasons stated above and for the issues decided, the writ petition is devoid of any merits and is liable to be dismissed and accordingly dismissed. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
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M. GANGA RAO, J
Date: .03.2022
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HONOURABLE SRI JUSTICE M. GANGA RAO
Writ Petition No.27180 of 2021
Dated .03.2022
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