Calcutta High Court (Appellete Side)
Surjya Kar vs Calcutta Club Limited & Ors on 28 July, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
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8.7.11
rc
F.M.A.T. 914 of 2011
Surjya Kar
-versus-
Calcutta Club Limited & Ors.
Mr. S.P.Roy Chowdhury
Mr. S.P.Majumder
Mr. Joydip Kar
Mr. Samrat Sen
Mr. Siddhartha Ghosh ... For the Applicant
Mr. S.K.Kapoor
Mr. Ahin Chowdhury
Mr. Debangsu Basak
Mr. Probal Mukherjee
Mr. Sukanta Chakraborty
Mr. D. Chowdhury
Mr. S. Chowdhury
... For the Respondent Nos. 1, 2 & 3
Mr. Jiban Ratan Chatterjee Mr. Hiranmay Bhattacharjee Mr. Nirmalya Bhattacharjee ... For the Respondent Nos. 5, 7 & 12 Seen the Office Report.
Necessary correction has been made by the learned Advocate-on-Record for the appellant in terms of the liberty given by this Court.
The appeal would be heard on the grounds mentioned in Memorandum of Appeal.
Issue usual Notice.
1 2 Later :
CAN 7196 of 2011 We are faced with a controversy where both of the parties are at fault. We have to find out the degree of wrong and/or fault to consider the ultimate result of this litigation, at least for the purpose of interim protection.
The appellant/petitioner is a member of the respondent club. He was elected as a committee member for the year 2010-2011, so was one Mr. Joyanta Chatterjee who is not a party to the present proceeding.
The dispute starts at a stage when Joyanta issues an e-mail appearing at pages 119-124 of the petition. He makes allegation as against the President and other senior members of the committee. The charges are grave and some of the charges would raise a pointer to financial irregularities. On a plain reading of the e-mail one could easily infer that it was slur on the persons against whom the allegations were made. We are not concerned as to whether there was any occasion for making those allegations. Neither Joyanta is a party before us nor are we called upon to go into such question.
Present controversy arises when the appellant circulated and/or forwarded subject e-mail to another member, Abhisek with the following notings :-
"Dear Abhisek, 2 3 Attachment is a mail from Joyantada which you/Arun can circulate. The attachment is, also, there in the mail.
Delete this mail of mine and my e-mail i.d. etc. when you do so."
Some of the members received such e-mail and made complain to the President. The committee meets on June 13, 2011. Eleven members are present. Joyanta is not present. As per agenda no. 4 the committee starts discussing on the letter signed by members of the club including the past Presidents demanding disciplinary action against two committee members when explanation is sought for from the appellant. He expresses his regret. According to him, he is not involved in the matter. The members feel that his explanation is "totally unacceptable". At this juncture, the appellant is asked to leave the room. Accordingly he leaves the room. The committee decides to take disciplinary action against both Joyanta and the appellant, Surjya. One of the members who happens to be the Sheriff at Calcutta observes as follows in the meeting :-
"Dr. Indrajit Roy suggested that prior to taking any disciplinary action against them the President may call a separate meeting to hear them out. Atleast they should be given an opportunity to defend themselves in this matter.
However, the Committee felt that as Mr. Joyanta Chatterjee has not asked for any opportunity to explain his conduct no further opportunity needs to be given. However, by his letter dated 10th June, 2011 he clearly stated that he stands by his statements made in the attached sheet which will be evident from the following excerpts of the above letter."
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After deliberation the committee unanimously suspends Joyanta for ninety days with immediate effect and in case of Surjya gives him an opportunity to tender a written apology on the following terms :-
"(1) That Mr. Surjya Kar must say that the defamatory parts of the email are incorrect;
(2) That the contents of the e-mail are not true;
(3) That Mr. Kar sincerely regretted and tendered his unconditional apology for having circulated the e-mail sent by Mr. Joyanta Chatterjee."
We are told that copy of the said minute is not circulated to Surjya. He is also not informed formally about the decision. However, informal communications have been made to him. It is contended on behalf of the appellant that he was and is still prepared to tender unqualified apology for what had happened.
The committee again meets on June 15, 2011. The committee discusses a letter from Surjya dated June 14, 2011 to the effect that he is prepared to tender unqualified apology. He also makes a clarification on the next day i.e. on June 15, 2011 to the effect that he is not in agreement with the contents of the e-mail. He, however, explains under what circumstances he has circulated such mail and denies to take responsibility of the contents of the said e-mail. The committee after considering his reply unanimously agree that the said letter could not be accepted as it is not in conformity with the decision taken in the meeting on June 13, 2011. The relevant extract of the 15th meeting is quoted below :-
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"2. A reply dated 14th June, 2011 received from Mr. Surjya Kar was rejected unanimously which was not in conformity with the terms recorded in the Committee meeting held on 13th June, 2011.
Subsequent to the above, a letter dated 15th June, 2011 received from Mr. Surjya Kar , was discussed by the Committee Members and it was unanimously agree that the said letter could not be accepted as this letter was also not in conformity with the terms recorded in the Committee meeting held on 13th June, 2011.
The issue of suspension of Mr. Surjya Kar out of 10(ten) Committee Members present, 7 (seven) Committee members agreed that Mr. Kar gbe suspended. However, as far as period of suspension is concerned, the views were different as indicated below :-
4 (four) Committee Members - for 3 months 3 (three) Committee Members - for 1 month Mr. Kunal Roychowdhury was of the view that one further opportunity should be granted to Mr. Surjya Kar to send a letter of apology as indicated by the Committee.
Mr. Gautam Sadhan Bose and Dr. Indrajit Roy were of the view that there should be no suspension.
Finally, it was decided in the meeting that Mr. Surjya Kar be suspended for the period of 90 (ninety) days with immediate effect."
The dispute between Surya and the Club is thus not resolved. He has been ultimately communicated the decision vide letter dated June 15, 2011 5 6 appearing at page 300 that "all privileges of membership" would remain suspended for 90 days. After a series of correspondences Surya files a suit before the Alipore Court, inter alia, praying for declaration and mandatory injunction challenging the decision of the Club so communicated to him vide letter dated June 15, 2011. The matter becomes complex as the Club is going to hold Annual General Meeting tomorrow where the new committee would be elected and Surya is a prospective candidate. He has filed his nomination on July 01, 2011 after receipt of the election notice. His nomination paper and the requisite fee are returned to him on the ground that he would not be entitled to contest the election in view of suspension of privileges attached to his membership. He files an application for interim injunction. The learned Civil Judge (Senior Division) upon a regular contested hearing has dismissed his application vide judgment and order dated July 26, 2011. The learned Judge is of the view that the Club Committee decided the matter in terms of Article 45(a) of the Memorandum and Articles of Association. The majority of the members opined in favour of suspension which cannot be said to be a sole decision of the President. On the question of contesting the election, the learned Judge is of the view that the plaintiff failed to convince the Court that a suspended member could contest the election. The application is rejected without any costs. Hence this appeal by Surya before us.
At the outset we have tried our level best to find out an acceptable solution in the matter. We venture to do so not only being prompted by our duty so entrusted upon us under Section 89 of the Civil Procedure Code but also 6 7 keeping it in view that there should be a congenial atmosphere in such a domestic organization of repute which has already celebrated its centenary few years before.
Our attempts have failed. For that, we do not wish to blame anyone as there are certain aspects which are really coming in the way of having an acceptable solution as suggested by us. We do not wish to deliberate any further on that issue.
We have heard Mr. Joydeep Kar, learned advocate appearing for Surya. We have also heard Mr. S.K. Kapoor, learned senior advocate appearing for the Club. We have heard Mr. S.P. Roy Chowdhury, learned senior advocate appearing for the petitioner while giving reply.
We are in full agreement with Mr. Kapoor when he says that the contents of the E-Mail was a slender. We are also in full agreement with him when he says that Surya cannot avoid his responsibility while forwarding the E-Mail and later on contending that he is not responsible for the contents. From the forwarding Mail as quoted above, we are convinced that he permitted the addressee to circulate it, however deleting his name thereby, not taking the responsibility of such circulation. We find from the Minutes that the author of the Mail stood by the allegations made by him. Rightly or wrongly he made such allegations. Allegations are serious and grave. If Surya stands by the said allegations, we have nothing to say. The moment, he disowns the responsibility to agree with the contents, he becomes liable for such slender. However, law would take its own course if and when an appropriate proceeding is brought 7 8 against him. There, we stop discussing the fault and/or wrong committed by Surya.
Now the Club starts committing wrong. Rule 45(a) and (b) are being relied upon by the Club. We find Rule 45 inclusive of Rule 45(c) which speaks about an opportunity of hearing. Pertinent to mention, one of the members points out to the committee and suggests a mechanism to give him an opportunity of hearing. Rule 45(c) has not been pressed into service. If we read (a), (b) and (c) together we would find that a complete mechanism has been suggested as to how an erring member could be dealt with by the Club.
Surya might have committed wrong, but Club should have given him proper opportunity of hearing. On 13th he was asked to leave. On 15th he was not formally communicated what was decided on 13th. He was not even asked to participate at the meeting although we find that an informal attempt was made as was recorded in the Minutes. Such serious thing, when being discussed and decided, should not have been done in a most casual and informal way. We are constrained to observe Rule 45(c) was not taken recourse to.
Now comes the quantum of punishment. If we look to the Minutes of the meeting held on June 15, 2011 we would find that out of ten members present in the meeting seven agreed on his suspension. Even amongst those seven, three opted for one month suspension which could ultimately allow him to contest the election as it would end on July 15, 2011. Thus, out of then members only four members suggested three months suspension which was imposed upon him. 8 9
On the issue of tendering unqualified apology, if Surya was of the view that he did any mistake, he should have tendered unqualified apology. The letter written by him would, however, not suggest that he tendered unqualified apology. At the same time, it was not right for the committee to suggest terms without giving him appropriate opportunity of hearing. In course of hearing Mr. Kar, on instruction, submits that Surya is prepared to file an affidavit expressing his regret and apology unqualified. Mr. Kapoor, on instruction, submits that in case he does so the committee would definitely sympathetically consider his prayer for acceptance the apology tendered by him and would withdraw of the order of suspension, if the majority of the members ultimately agree. The matter does not rest there. Election is going to be held tomorrow. For that, all arrangements are complete.
Mr. Kapoor on merits submits that when the committee gave him opportunity twice to tender apology unqualified, he missed bus by not doing so. He also submits that before the court below attempt was made to settle the issue when he backed out. Hence the plea that he was not giving sufficient opportunity, is not correct. He lastly contends that a Club is a domestic forum. Members are bound by the Articles. The Court should be slow in interfering with the domestic decision of the Club.
To support his contention he relies on four decisions :-
(i) All India Reporter, 1963, Supreme Court, Page - 1144 (T.P.Daver Vs. Lodge Victoria No. 363, S.C.Belgaum & Ors.) 9 10
(ii) 1979, Volume - IV, Supreme Court Cases, Page 143 (Shyamlal Yadev & Ors.
Vs. Smt. Kusum Dhawan & Ors.)
(iii) 2004, Volume - XIII, Supreme Court Cases, Page 574 (Tapash Majumder & Anr. Vs. Pranab Dasgupta & Ors.)
(iv) 2005, Volume - IV, Supreme Court Cases, Page 741 (Board of Control for Cricket in India & Anr. Vs. Netaji Cricket Club & Ors.) While dealing with the submissions made by Mr. Kapoor, Mr. Roy Chowdhury reiterates what Mr. Kar has submitted on behalf of the appellant. He also draws our attention to Clause 45(a) and (b) to say that it was merely a suspension of privilege and not the right to contest the election.
In this complex situation, we are of the view that since the election is scheduled to be held tomorrow and everything is arranged it would not be proper for the Court to stall the election. At the same time, we do not wish to make the suit filed by Surya infractuous. We are of the view that interest of justice would sub-serve, if we direct the election to be held in accordance with law with the rider that result of the election would abide by the ultimate decision in the suit.
We also take a cue from the Apex Court decision in the case of Tapash Majumder & Anr. Vs. Pranab Dasgupta & Ors. (Supra) paragraph 4 of the said decision being relevant herein is quoted below :-
"It is conceded at the Bar that the elections are fixed for Sunday, 8-8-2004. We are not inclined to stay the elections. However, we allow the petitioners the liberty of filing their objections before the learned Single Judge. Such objections filed before the learned Single Judge shall be heard and decided summarily 10 11 without regard to the nature and scope of the suit before the learned Single Judge. If the learned Single Judge feels that proper elections have not been held and a case for holding elections afresh is made out, then the learned Single Judge would be at liberty to direct elections being held afresh and pass appropriate incidental and consequential orders"
We abundantly make it clear that in case Surjya ultimately succeeds in his suit, the learned Judge of the Court below would be free to cancel the election and direct a fresh election to be held giving adequate opportunity to Surjya to contest the election if he so likes.
On the suspension, we do not wish to pass any order as we hope and trust that the committee would certainly consider the infirmities pointed out by us and would give a re-look to the issue dispassionately. We are prompted to say so, looking to the constitution of the committee and the stand taken by them before us as communicated through Mr. Kapoor. However, on the question of his right to contest election in the present context, he would have to wait for a decision of the Court.
Since no affidavit is called for, the allegations contained in CAN 7196 of 2011 are deemed to have not been admitted by the appearing respondents. CAN is disposed of without any order as to costs.
Since no fruitful purpose would be served by keeping this appeal pending, FMAT 914 of 2011 is also disposed of without, however, any order as to costs.
We abundantly make it clear that the observations made by us in this judgment are only for the purpose of considering the interim protection to be 11 12 given to the parties and must not be construed as a final decision on the issue and the Court below would be free to decide the issue irrespective of our observations as above.
After this judgment is delivered Mr. Samrat Sen, learned counsel also appearing for Surjya, submits that an expeditious trial should be ordered as election is held each year and the protection given by this order would be meaningless if the suit is not heard at an early date.
Mr. S.K.Kapoor, learned counsel is appearing for the Club, being defendant no. 1. He also represents defendant nos. 2, 3 and 4. Mr. Jiban Ratan Chatterjee, learned senior counsel also appears for defendant nos. 5, 7 and 12.
The service writ of summons as against the appearing defendants are dispensed with. Written statement be filed by the said defendants within four weeks from date. The Court below should take up the hearing of the suit with top priority so that the ultimately the suit does not become infructuous.
Mr. Sen also prays for liberty to contest the election. Such prayer is, however, considered and rejected.
Urgent photostat copy of the order, if applied for, shall be given to the parties on the usual undertakings.
(Banerjee, J ) (Dr. Mrinal Kanti Chaudhuri,J) 12 13 13