IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5th DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MFA No.1313 OF 2017 (CPC) C/W M.F.A.No.3528 OF 2017 (CPC) IN MFA NO.1313 OF 2017 BETWEEN Mr. Sadiq Suhail, Son of Mr.Abdul Wajeed Aged about 53 years, No.6, White House, Coles Road, Bangalore-560005.
(By Sri. M.G.S.Kamal, Advocate & Ms. Karishma Naghnoor, Advocate) AND 1. The Karnataka State Billiards Association, (Affiliated to the Billiards & Snooker Federation of India) With it Registered Office at At No.5/1, Miller Tank Bed Area, Jasma Bhavan Road, Bangalore 560052. Represented by its Secretary.
…Appellant 2. Mr. M.C.Uthappa, (Father’s name not known) Major, At No.5/1, Miller Tank Bed Area, Jasma Bhavan Road, Bangalore-560052.
3. Mr. H.R.Rathan Kumar, (Father’s name not known) Major, At No.5/1, Miller Tank Bed Area, Jasma Bhavan Road, Bangalore-560052.
4. Mr. S.Balasubramaniam (Father’s name not known) Major, At No.5/1, Miller Tank Bed Area, Jasma Bhavan Road, Bangalore-560052.
5. Mr. K.N.Prakash, (Father’s name not known) Major, At No.5/1, Miller Tank Bed Area, Jasma Bhavan Road, Bangalore-560052.
…Respondents (By Sri. S.Vishwajith Shetty, Advocate for R1; R2 to R5 are served) This Miscellaneous First Appeal is filed under Order 43 Rule 1(r) of CPC, against the order dated 23.01.2017 passed on I.A.Nos.1, 2, 3 in O.S.No.7231/2016 on the file of the V Additional City Civil Judge, Bangalore, dismissing I.A. No.1 filed under Order 39 Rule 1 & 2 of CPC and allowing I.A.Nos.2 & 3 filed under order 39 Rule 1 & 2 R/w Section 151 of CPC, relating to expulsion of membership.
IN MFA NO.3528 OF 2017 BETWEEN:
The Karnataka State Billiards Association, (Affiliated to the Billiards & Snooker Federation of India) With it Registered Office at At No.5/1, Miller Tank Bund Area, Jasma Bhavan Road, Bangalore-560052.
Represented by its Secretary …Appellant (By Sri. Vishwajith Shetty S., Advocate) AND:
1. Mr. Sadiq Suhail, Son of Mr.Abdul Wajeed Aged about 53 years, R/at No.6, White House, Coles Road, Bangalore-560005.
2. Mr. M.C.Uthappa, Major, At No.5/1, Miller Tank Bund Area, Jasma Bhavan Road, Bangalore-560052.
3. Mr. H.R.Rathan Kumar, Major, At No.5/1, Miller Tank Bund Area, Jasma Bhavan Road, Bangalore-560052.
4. Mr. S.Balasubramaniam Major, At No.5/1, Miller Tank Bund Area, Jasma Bhavan Road, Bangalore-560052.
5. Mr. K.N.Prakash, Major, At No.5/1, Miller Tank Bund Area, Jasma Bhavan Road, Bangalore-560052.
…Respondents (By Sri. M.G.S.Kamal, Advocate & Ms. Karishma Naghnoor, Advocate for R1;
R2 to R5 Notice dispensed v/o dated 27/4/2017) This MFA filed under Order 43 Rule 1(r) of CPC, against the order dated 23.01.2017 passed on I.A. Nos.2 & 3 in O.S.No.7231/2016 on the file of the Principal City Civil and Sessions Judge, Bengaluru, allowing I.A.No.2 & 3 filed under Order 39 Rule 1 & 2 CPC These MFAs are coming on for admission this day, the court delivered the following:
JUDGMENT These two appeals are disposed of by a common order as they arise out of common order dated 07.11.2016 passed by the learned trial judge on I.As.I and II filed under Order XXXIX Rules 1 and 2 Code of Civil Procedure in O.S.No.7231/2016 on the file of V Addl. City Civil Judge, Bengaluru. This order was modified on 23.01.2017 upon an application filed under Section 152 of Code of Civil Procedure. M.FA.No.1313/2017 is filed by the plaintiff and M.F.A.No.3528/2017 is filed by the 1st defendant. Briefly stated the events that led to preferring these two appeals are as follows:
2. The parties are referred to with respect to their ranks in the suit for the sake of convenience. The plaintiff is a member of 1st defendant-Association (herein after referred to as “association”). The 2nd defendant is the President of the said Association. On 20.08.2016 a meeting of the Executive Committee of the Association was held and it was resolved that the 62nd Annual General Body Meeting should be held on 25.09.2016. The plaintiff received the notice of the said meeting and came to know about the calendar of events published in connection with holding election for electing the office bearers of the association. He filed his nomination papers intending to contest in the said election. The plaintiff came to know that the defendants 2 to 5 had committed some financial illegalities and misused the funds of the association and therefore he lodged a complaint on 22.09.2016 at Pulakeshinagar Police Station against defendants 2 to 5. The complaint was registered in Crime No.288/2016 for the offence under Section 420 r/w Section 34 IPC. The defendants 2 to 5, having learnt about registration of complaint against them, summoned the plaintiff to meet them in the association premises in connection with a meeting of the executive committee. To his shock, he was informed orally that the executive committee had decided to keep him under suspension with effect from 26.09.2016. He was not given any opportunity to participate in the meeting and thereby he was denied of an opportunity to put forward his stand in regard to the action that the executive committee had taken. The term of the executive committee was to expire on 25.09.2016. In the annual general body meeting held on 25.09.2016, a motion was moved in a hasty manner to expel the plaintiff from the membership of the association. Therefore the plaintiff stated that the association acted illegally by violating the Rules of the association. Thereafter the plaintiff filed the suit seeking a declaration that the decision of the executive committee taken on 25.09.2016 suspending the membership of the plaintiff was illegal, void and does not bind him; declaration that the resolution passed on 25.09.2016 expelling him from the primary membership of the association was illegal, void and not binding on him; declaration that the decision of the 1st defendant/association expelling him from the rolls of the association as communicated to him through letter dated 25.09.2016 as illegal and consequently for a direction to restore his membership of the association.
3. Along with the plaint, the plaintiff filed 3 applications as per I.A.No.1 to 3 under Order 39 Rules 1 and 2 CPC. I.A.No.1 was for issuing an order of temporary injunction to stay the operation, implementation and execution of the decision of the executive committee of the association taken on 24.09.2016 suspending him from the membership of the association. I.A.No.2 was filed seeking an order of temporary injunction staying the operation and implementation of resolution dated 25.09.2016 passed by the general body for expelling him from the primary membership of the association and I.A.No.3 was for temporary injunction to stay the operation and implementation of the decision communicated to him by letter dated 25.09.2016 expelling him from the primary membership of the association.
4. The defendants contested the applications.
They pleaded that the plaintiff became the executive committee member for they year 2014-16 and he was always quarrelling with the other office bearers unnecessarily taking objection for every issue and thereby causing disturbance to the peace and smooth conduct of the executive committee meetings. He was an aspirant for the President post. He contested in the general election for the year 2016-17 for the post of President. His chances of getting elected was very bleak. The plaintiff was aware of the procedure to be followed for purchasing the billiards tables from BSFI and there was absolutely no misuse of funds. The activities of the plaintiff was found to be prejudicial and injurious to the association and therefore the executive committee suspended the plaintiff with effect from 25.09.2016. Since he had contested in the election, decision was taken to give into effect the suspension order from 25.09.2016 to see that the plaintiff should not lose an opportunity of contesting in the elections. The decision taken by the association was unanimous. General body was the ultimate authority and therefore keeping the plaintiff under suspension and thereafter expelling him from the membership was according to Rules of the association. The plaintiff’s suit is not maintainable and he is also not entitled to the relief sought for in the interlocutory applications.
5. The learned trial judge, having heard arguments on these applications allowed I.A.Nos.2 and 3 and stayed the operation of expelling the plaintiff from the membership of the association till disposal of the suit and dismissed I.A.1. Aggrieved by the order passed on I.A.No.1 the association has preferred appeal M.A.No.3528/2017 and aggrieved by the order of dismissal of I.A.No.2, the plaintiff has preferred M.F.A.No.1313/2017.
6. The learned counsel for the appellant argues that though normally there cannot be interference by the courts in the matter of suspension of a member of an association pending enquiry, it cannot be a general rule, for, if it can be demonstrated that the order of suspending a member is tainted with bias and in utter violation of natural justice, the courts do have power to issue temporary injunction to stay the order of suspension. He elaborated his argument by referring to Rule 19 and 36 (p) (iv) of the Rules of the Karnataka State Billiards Association and argued that Rule 19 very well specifies the circumstances where a member can be kept under suspension and Rule 36 (p) (iv) gives the procedure to be followed. Hence, it is not the case of the respondents that the appellant’s conduct was injurious to the reputation of the association nor that he behaved in such a way as to disturb the order and harmony of the association. The respondents 2 to 5 acted vindictively against the appellant because the latter lodged a complaint to the police to take action against the former for misappropriating the funds of the association. Being a member of the association, he was entitled to protect the interest of association and therefore he made a complaint on 22.09.2016. The respondents 2 to 5 took a decision on 24.09.2016 to keep the appellant under suspension with effect from 26.09.2016. Their tenure as office bearers came to an end on 25.09.2016, one day before the order of suspension would come into effect. Suspension order was passed by persons against whom he had made complaint. They should not have taken decision. They should have left the matter to other members of the committee. The appellant contested for the post of President of the association, therefore the entire conduct of the respondents 2 to 5 shows that they kept the appellant under suspension to see that he should not contest in the election.
7. He argued that principles of natural justice which should be followed during domestic enquiry equally apply even when a decision to suspend a member has to be taken, and if it can be noticed that the suspension order suffers from bias and that decision taking authorities acted unfairly, such an order should not be allowed to remain. In support of his arguments, he gained support from the following decisions:
i) T.P.Daver vs. Lodge Victoria [AIR 1963 SC 1144] ii) Secretary, BangaloreTurf Club vs.
Prakash Srivatsava [ILR 1995 KAR 1566] iii) Secretary, Bangalore Turf Club vs. Kishan Srivatsava & another, [AIR 1996 KANT 306].
iv) M.K.Marattukalam Vs. A.P.Velayudhan, 31st October 2012.
v) Bowring Institute Vs. K.Jayanna, 24th April 2013. Author H.N.Das.
vi) Mohd. Yunus Khan Vs. State of Uttar Pradesh & others [(2010)10 SCC 539] 8. The learned counsel for respondents argued that it was the deliberate intention of the appellant that the respondents 2 to 5 should not contest in the election and to prevent them from contesting in the election he made a complaint to the police. The respondents 2 to 5 brought this matter to the notice of the committee which consists of not only the respondents 2 to 5 but also others. It was the collective decision of the committee to keep the appellant under suspension.
9. Secondly he argues that Rule 36(p) (iv) states very clearly that any decision that a committee takes to keep a member under suspension can be a punishment also, in that, instead of expelling a member, he can be kept under a suspension for a period not exceeding one year (Rule 19), Hence the decision taken by the committee to suspend him was not the final punishment; it was only a suspension pending enquiry, which can be resorted to even before sending a notice seeking explanation from appellant. Established principle is that no injunction can be issued by the court staying the operation of suspension order.
10. He argued further that the respondents 2 to 5, against whom the appellant lodged complaint, could have recused themselves while taking a decision to keep the appellant under suspension. That decision was left to them. There were other members also in the committee. The decision was taken collectively. Necessity required participation of respondents 2 to 5 in the committee meeting. Therefore, no bias can be attributed to respondents 2 to 5. In a situation like this, doctrine of necessity can be invoked, he relied upon judgment of Supreme Court in the case of Lalit Kumar Modi Vs. Board of Control for Cricket in India and others [(2001) 10 SCC 106].
11. From the above arguments, the point that emerges for decision is whether the courts can interfere with order of suspension if it is found that the committee is found to have acted unfairly and in gross violation of principles of natural justice?
12. Before answering this question, a reference may be made to the decision cited by the learned counsel for appellant. The Hon’ble Supreme Court in the case T.P. Devar Vs. Lodge Victoria (AIR 1963 SC 1144), has held as below:
“8. Another aspect which may also be noticed is how far and to what extent the doctrine of bias may be invoked in the case of domestic tribunals like those of clubs. The observations of Maugham J. in Maclean's case 1929-1 Ch. 602 in this context may be noticed. The learned judge observed in that case thus:
"A person who joins an association governed by rules under which he may be expelled, .............. has in my judgment no legal right of redress if he be expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal may be, provided that it acts in good faith The phrase, "the principles of natural justice," can only mean in this connection the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an inquiry necessarily imports that the accused should be given his chance of defence and explanation. On that point there is no difficulty. Nor do I doubt that in most cases it is a reasonable inference from the rules that if there is anything of the nature of a lis between two persons, neither of them should sit on the tribunal."
9. The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a civil court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra.”
In the case of Secretary, Bangalore Turf Club vs. Prakash Srivatsava [ILR 1995 Kar. 1566], it is held:-
“2. What needs to be borne in mind and what emerges from a host of Judicial Decisions both Indian and from other parts of the World is the principle that as far as such domestic trials are concerned, that there are well defined principles on the basis of which they are required to be conducted. These essentially centre around the principles of Natural Justice and what can be defined as an extension of those principles. The procedure to be followed is well defined, the essence being that the proceeding must pass the test of fairness and if this has been done, the Court will then examine as to whether there is anything else that can be pointed out such as gross malafides which essentially constitute vindictiveness etc. and if it can be demonstrated on a prima facie appraisal of the record that the decision is so inherently bad or that the procedure has been so very wanting that no judicial authority would normally uphold the decision, it would be certainly a case for interference. Any Court at the interim stage or at the stage when an appeal is preferred on such an order, it will confine itself to an appraisal along these lines. A Court will also put itself on guard not to involve itself in too elaborate an examination because the parties before the Court are entitled to fairness in the course of the ensuing trial both in the matter of adducing evidence and in that matter of making their submissions on the basis of that evidence and therefore a Court will not record any definite findings nor will an appeal Court for that matter, go into an indepth appraisal of the matter and make any observations that would either prejudge the issues or prejudice the party.”
This Court in, Secretary, Bangalore Turf Club vs. Kishan Srivastava [ILR 1996 Kar. 1905], has held as under:
“60. The above are the guidelines suggested by the learned Author based on the development of rule of law by the learned Judge of various Courts. Indeed as pointed out by the Privy Council in AIR 1949 PC 313 the proceedings before the domestic enquiries shall be appreciated by adverting to the behaviour and conduct of the Inquiring Authorities rather than the non-co-operative attitude of delinquents. If statute governs the domestic enquiry we have no difficulty to make an interference to test the validity of such enquiry, but where there are no rules prescribing the mode of enquiry, the general law governing such field shall be taken note of. What the Court should examine is was there any bias attitude on the part of the Inquiries Authorities or they have been motivated to punish a person. If such things are absent, the Courts should give credence to the conclusion reached by them on the basis of their enquiry. It is not the form that requires to be appreciated the method requires consideration.”
The Supreme Court in Mohd. Yunus Khan vs. State of Uttar Pradesh and others [Supreme Court (2010) 10 SCC 539] has held as under:
“23. A Constitution Bench of this Court in State of U.P. v. Mohd. Noor, rejected a submission made on behalf of the State that there was nothing wrong with the Presiding Officer of a Tribunal appearing as a witness and deciding the same case, observing as under: (AIR p.91, Para 7) "7. The two roles could not obviously be played by one and the same person.......the act of Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri. B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.”
13. There is no need to refer to two other decisions of the court passed in MFA.No.5541/2012 c/w MFA.No.8251/2012 and W.P.No.17767/2012 and W.P.No.2205/2013.
14. Keeping the above principles in mind, the case needs to be examined. I am aware that the matter pertains to suspension and that the courts cannot and should not interfere with suspension order passed before holding domestic enquiry; if circumstances warrant that a delinquent needs to be kept under suspension for fair conduct of enquiry, he has to be kept under suspension. That power is always available to the decision taking body. The trial judge, probably, has declined to interfere with the order of suspension for this reason. It cannot be said that this decision is unlawful. But what needs to be observed here is that trial judge appears to have not noticed the hasty manner in which the committee acted. If the entire action taken by the committee appears to be tainted with absolute bias and in gross violation of principles of fair play, I think that, even in case of suspension, courts can interfere.
15. Here in this case, the appellant lodged criminal complaint against respondents 2 to 5 on 22.09.2016. On 24.09.2016, a decision was taken to keep the appellant under suspension with effect from 26.09.2016, although annual general body meeting was convened to be held on 25.09.2016. Considering these sequence of events, if according to respondents 2 to 5 the very lodging of complaint against them was against the interest of the association and therefore, action was required to be taken, respondent 2 to 5 could have left the entire decision to the general body of the association or to the other members of the committee. Criminal complaint was against respondents No. 2 to 5. They were also in the executive committee. A question obviously arises in a circumstance like this whether they could have been a part of decision taking process? They should have recused themselves. Doctrine of necessity as argued by the learned counsel for respondent by referring to decision to Supreme Court in Lalit Kumar Modi cannot be applied. In that case, because the President recused from the enquiry being a member of Disciplinary Committee, another member was appointed in the place of the President and therefore in that context, doctrine of necessity was employed or otherwise no action could have been taken for a period of one year till a new President was elected. But the situation is not the same here. It is true that mere participation of a member in a meeting cannot lead to infer bias on that member, as has been held by Supreme Court in Lalit Modi (Para 39), but in the background of a criminal complaint having been lodged against respondents No.2 to 5, rather than necessity to participate in the decision taking process being members of executive committee, propriety required to keep themselves away. I find it pertinent to refer to the judgment of the Hon’ble Supreme Court in Lalit Modi where the Hon’ble Supreme Court refers to its earlier judgment in the case of S.Parthasarathy [(1974) 3 SCC 459)]. Paragraph 16 of the judgment is extracted here:
“16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, be must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that. he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in Metropolitan Properties Co, (F.G.C.) Ltd. Vs. Lannon, WLR at P.707]”.
(emphasis supplied) 16. If the above principle is applied, unhesitatingly it can be said that a reasonable man does not approve of participation of respondents 2 to 5 in the matter of taking a decision to keep the appellant under suspension.
17. If Rule 19 and 36 are read conjointly, the interpretation that they take is the executive committee has a power to reprimand or suspend any member. Expulsion of a member is a decision to be taken in Special or Annual General Body meeting. Rule 36 makes it very clear that even before keeping a member under suspension, show cause notice must be issued; but if in the opinion of the committee, a member can be kept under suspension even before sending a notice, if the situation so warrants. The executive committee has power to decide whether situation requires reprimand, suspension or expulsion, but it has no power to expel without approval from the Special or General Body. Suspension for not exceeding one year, can be a punishment as has been argued by respondent’s counsel, but this punishment cannot be without an equiry.
18. In the instant case, suspension of the appellant was not final punishment, it was a suspension pending enquiry. The trial court has rightly held that the expulsion of the appellant did not precede enquiry, and it is not disputed also. But in so far as keeping the appellant under suspension, with effect from 26.09.2016, was a decision taken by executive committee on 24.09.2016, despite the fact that annual general body meeting was scheduled on 25.09.2016. The respondents 2 to 5 would have left the entire matter to the General Body of the association; there was no rationale behind issuing an order of suspension on 24.09.2016 having the effect from 26.09.2016. Elements of personal bias, not institutional bias, can be pointed out. The learned counsel for appellant produced the “Proceedings and Minutes” of the 62nd Annual General Meeting of this Association held on 25.09.2016. Item No.4 of the agenda reads as below:
“To consider recommendations of the Committee:
Sri Sadiq Suhail (PMA0144) raised the issue of Bar dues of Rs.7,000/- by the Bar chairman and sought to know the action initiated by the committee. The chairman replied that the issue has since been settled and the matter is closed.
The Chairman (President) brought to the notice of the General Body that Sri. Sadiq Suhail, the sitting committee member has filed a police complaint (now translated into FIR) at the Pulikeshinagar Police Station, alleging misappropriation of funds by the present President, Secretary, Treasurer and Advisor of the Association in the matter of purchase and illegal sale of Billiards tables by this office bearers. The President informed the General Body that the Executive Committee by a voice vote placed Sri. Sadiq Suhail under suspension for his injurious activities against the Association. He sought approval and blanket permission of the General Body to expel the said member from the Association when once his allegations are proved wrong in the Court of Law”.
19. The above agenda shows that the President i.e., respondent No.2 sought blanket approval of the General body to expel the appellant, although he was aware that enquiry had not yet commenced.
20. Therefore these circumstances amply demonstrate that the respondents No.2 to 5 were totally biased against the appellant and that the President induced the members who participated in the annual general meeting to expel the appellant. The entire action was in utter violation of Principles of natural justice. Hence, in my opinion there is need to interfere, even in a matter of suspension.
21. So far as the appeal preferred by the association, MFA.No.3528/2017 is concerned, the learned trial judge has rightly come to conclusion that expelling the appellant from primary membership without holding enquiry was illegal. The trial judge has allowed the application to stay the operation of the said order. This aspect does not require much discussion. This appeal deserves to be dismissed.
From the above discussion, I come to conclusion that the MFA.No.1313/2017 deserves to be allowed and MFA.No.3528/2017 is to be dismissed. Hence the following :
O R D E R i. MFA.No.1313/2007 is allowed. Order dated 07.11.2016 (as stood rectified on 23.01.2017) on I.A.No.1 is set aside. I.A.No. 1 is allowed. The decision of the Executive Committee of the Association dated 24.09.2016 suspending the appellant from the membership of the association is stayed till disposal of the suit.
ii. MFA.No.3528/2017 is dismissed.
iii. There is no orders to costs.
Sd/- JUDGE sd