Mumbai, July 31: The Bombay High Court, which struck down as "illegal and unconstitutional" the two-member panel that went into spot-fixing and betting charges in the IPL, has held that the commission was constituted in violation of the rules framed by the BCCI.
However, it refrained from ordering a new panel of retired judges to go into the charges against India Cements Ltd, owners of IPL franchise Chennai Super Kings, its former Team Principal Gurunath Meiyappan, son-in-law of BCCI's President-in-exile N Srinivasan, and Raj Kundra, co-owner of Rajasthan Royals. It held that forming a new probe commission was the prerogative of the Cricket Board.
"The (probe) Commission was not duly constituted and was contrary to and in violation of the provisions of Rules 2.2 and 3 of Section 6 of the Operational Rules (of BCCI)," said Justices M S Sonak and S F Vajifdar in a 61-page verdict delivered yesterday which may thwart Srinivasan's bid to regain full control of the BCCI.
The court was hearing a PIL filed by the Cricket Association of Bihar and its secretary Aditya Verma challenging the constitution of the two-member commission set up by BCCI and IPL Governing Council after surfacing of the betting and fixing scandal.
The High Court order came just two days after the panel submitted its report on July 28 giving a clean chit to all those against whom the probe was conducted. Armed with the clean-chit, Srinivasan was expected to reclaim his position in the Cricket Board after stepping aside for the duration of the inquiry.
"In our view the commission has been constituted contrary to the operational rules and it would not entitle the court to constitute a fresh probe commission at least (at) this stage and in this writ petition", the judges observed.
"The constitution of a probe commission under section 6 of the Operational Rules is the prerogative of BCCI. We see no reason to deprive it of the same at this stage and in this petition. BCCI is at liberty to take such steps as it deems in this regard", the Judges said while disposing of the PIL.
The court also rejected Srinivisan's plea for a stay on its order to enable him move a higher court in appeal.
The court said rule 2.2 of the Operational Rules mandated presence of at least one member of the IPL Code of Behaviour Committee on the Commission. After the then BCCI Secretary Sanjay Jagdale declined to be a part of the panel, Justices T Jayarama Chouta and R Balasubramanian, two former judges of the Madras High Court, were left on the commission.
BCCI had selected five members on the IPL Code of Behavior Committee. BCCI is entitled to nominate additional people to join the commission. It, however, does not entitle BCCI to constitute the commission without any member of the IPL Code of Behavior Committee, noted the Judges.
BCCI counsel Rafiq Dada argued that the Cricket Board was compelled to constitute the commission without any member of the IPL Code of Behavior Committee as no such member was available. He defended constitution of the panel, which was contrary to Rule 2.2, on the doctrine of necessity.
The necessity, Dada submitted, was due to none of the members of the IPL Code of Behavior Committee being available to join the commission. Sanjay Jagdale, Ajay Shirke and Rajiv Shukla were not available.
However, the Judges noted that two others - Ravi Shastri and Arun Jaitely were also on the committee.
"There is no reason furnished as to why they were not appointed on the commission. There is no explanation why BCCI did not appoint them. The Respondent (Cricket Board) did not even ask them to be on the commission", said the bench.
Dada argued that Shastri travels to various destinations as a commentator and hence he was not considered to be member on the panel. However, the court disagreed with his contention, saying travelling to various destinations as a commentator would not disable him from discharging his functions as a member of the commission.
"After all, as mentioned by the lawyers, the commission sat on only one day and closed the enquiry on the same day. There is nothing to indicate that he could not have spared a single day", the judges noted.
"The most important point is the fact that Ravi Shastri's name appears on the IPL Code of Behaviour Committee and it must be presumed that he would be in a position to discharge his function as a member of the committee.
"It was not suggested that there were any special reasons why the other members of the IPL Code of Behaviour committee were not available on this occasion," the bench said.
Counsel for Srinivasan Iqbal Chagla contended that the petitioner was not entitled to challenge the constitution of the commission as being contrary to Rule 2.2 of the Operational Rules as there was no pleading to this effect in the petition. However, the judges held the submission was not well founded.
"We have already referred to the pleadings. In fact, BCCI did not specifically state in its affidavit in reply that the commission was constituted under Rule 2.2. We are left to infer this from the letter dated May 29, 2013, annexed to the affidavit-in-reply.
"The petitioner has alleged that the constitution of the commission was contrary to the rules and regulations. That is sufficient in the facts of this case to permit the petitioner to raise this contention. No evidence is required as far as the petitioner is concerned in support of this contention", the court said.
The judges further said that the petitioner was entitled to rely on the plain language of Rule 2.2 of the Operational Rules that mandates that at least one member of the IPL Code of Behaviour Committee must be a member of the commission constituted under Rule 2.2.
"Admittedly, the two learned Judges are not members on the IPL Code of Behaviour Committee," they pointed out.
It is the first respondent (BCCI) that seeks to deviate from this rule and take advantage of an exception based on the doctrine of necessity, the judges said.
"It is for the party relying upon an exemption or an exception to aver and prove that the facts justifying or entitling it to do so exist. The burden was therefore on BCCI to aver and prove that no member from the IPL Code of Behaviour Committee was available to be appointed on the said commission, the judges said.
"Respondent No 1 (BCCI) has not even averred anything to this effect. It has not even sought to establish the same except orally across the bar during the hearing," the bench noted.
"It must be held therefore, that the said commission was not duly constituted and was contrary to and in violation of the provisions of Rules 2.2 and 3 of Section 6 of the Operational Rules", the bench ruled.
The Judges further said, "in a matter such as this and in respect of allegations such as these, it would be neither safe nor fair to BCCI and Srinivasan to draw a final conclusion against them on the basis of affidavit evidence. Dada and Chagla's contention that this is a disputed question of fact is well founded. It is only in a trial that the court would be able to come to a final conclusion in this regard".
"These are indeed very serious allegations in a matter which is even more serious. On this issue the most that can be said in favour of the petitioner at this stage and in this proceeding is that it has made out a prima-facie case that Srinivasan was involved in the formation of the commission," the bench said.
The least that must be said in favour of the petitioner is that the respondents have not established that Srinivasan had no role to play in the formation of the commission, the judges said.
They said normally they would have relegated the petitioner to filing a suit or any other proceedings in which it can be ascertained with a greater degree of certainty whether or not Srinivasan played a role in the formation of the commission.
"However, in view of our finding that the constitution of the commission is not in accordance with the Rules and Regulations of BCCI, this may not be necessary", the bench said.