REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. 27157 OF 2010

WITH

CC  NO. 15249 OF 2010

WITH

 SLP(C) No. 11545 OF 2011

Lalit Kumar Modi      …Petitioner

Versus

Board of Control for Cricket in India & Ors.                     …Respondents

 J U D G E M E N T

H.L. Gokhale J.

These three Special Leave Petitions seek to challenge three orders  

passed by three different benches of Bombay High Court, on the proceedings  

initiated by the appellant against the first respondent Board of Control for Cricket  

in India (hereinafter referred to either as ‘first respondent’ or the ‘BCCI’).

2. The first respondent is a society registered under the Tamil Nadu  

Societies Registration Act, 1975.  The petitioner, herein, is a member of the first  

respondent  representing one of its constituent associations.   As a part  of its  

activities,  the first  respondent  had organized a  cricket  competition  under  the  

banner ‘Indian Premier League’ shortly known as (IPL), and the petitioner was  

appointed as the incharge Chairman thereof.  Considering the popularity of the

game of cricket, these games were to be televised. Telecasting of these games  

was expected to fetch a good income to BCCI and the firm entrusted with the  

telecasting  of  these  games,  and  therefore,  the  rights  for  telecasting  were  

auctioned by first respondent through a bidding process for an appropriate price.  

3. In  April  2010,  the first  respondent  received a complaint  from a  

bidder alleging breach of confidentiality against the petitioner.  The petitioner  

was therefore, suspended from his position on 25.4.2010.   

(a)  He  was  served  with  a  show  cause  notice  dated  25.4.2010  inter-alia  

alleging/accusing  him  of   (i)  accepting  multi-million  dollar  kickback  while  

assigning the telecasting rights for IPL matches; (ii) attempting to rig the bids for  

the two new IPL teams-that were auctioned the previous month; (iii)  having  

proxy stakes in IPL teams; (iv) entering into transactions with rank strangers  

against  the mandate of  the Governing Council  of  the IPL;  (v)  helping  family  

members in benefiting from the IPL contracts.  

(b)  Thereafter another show cause notice was issued to him on  6.5.2010 which  

alleged  inter-alia  that  he  was  seeking  to  create  a  parallel  cricket  body  at  

international  level  (particularly  in  England)  and  thereby  subvert  the  present  

International  Cricket  structure.  The  petitioner  sought  certain  information  and  

documents  from the  first  respondent  in  this  behalf,  but  the  same were  not  

furnished.  

4.  The petitioner sent his reply to the first show cause notice on 15.5.2010  

denying the allegations therein.  Thereafter, he wrote to Shri Shashank Manohar,  

the Honorary President of the first respondent on 25.5.2010 requesting him that  

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he should recuse himself  from the decision making process in the interest of  

fairness.  The petitioner then sent his reply to the second show cause notice on  

31.5.2010.  The first respondent served him the third show cause notice on the  

same day i.e.  31.5.2010 wherein  they alleged amongst other things that the  

petitioner had committed irregularities and illegalities in the award of the IPL  

tenders  for  the  Theatrical  Rights.   The  petitioner  replied  to  this  notice  on  

15.6.2010.   

5. Consequent  upon  the  objection  raised  by  the  petitioner,  Shri  

Shanshank Manohar recused himself from the Disciplinary Committee, which was  

to decide upon the show cause notices.  The first respondent has a disciplinary  

committee to deal with the misconducts of its members.  It is constituted under  

rule 1 (q) of the rules governing the first respondent society.  This rule reads as  

follows:-  

(q) Disciplinary Committee: The Board   shall  at  every  Annual  General  Meeting  appoint  a  Committee   consisting of three persons of whom the President shall be one of   them to inquire into and deal with the matter relating to any act   of indiscipline or misconduct or violation of any of the Rules and   Regulations by any player, Umpire, Team, Official, Administrator,   Selector  or  any person appointed or  employed by BCCI.   The   Committee shall have full power and authority to summon any   person(s) and call for any evidence it may deem fit and necessary   and make and publish its decision including imposing penalties if   so  required,  as  provided  in  the  Memorandum  and  rules  and   Regulations.”

6. On  Shri  Manohar  recusing  himself  from  the  Committee,  Shri  

Jyotiraditya Scindia was appointed in his place.   The other two members of the  

Committee were Shri Chirayu Amin and Shri Arun Jaitely as nominated earlier.  

The petitioner filed a Writ Petition bearing No. 1370/2010 in the Bombay High  

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Court, and prayed that the order of suspension be recalled and he be reinstated,  

the three show cause notices be directed to be withdrawn, and the decision to  

refer the matter to the Disciplinary Committee be also directed to be recalled.  

Alternatively  he  prayed  that  the  first  respondent  be  directed  to  appoint  a  

mutually acceptable and an independent person or panel to consider the replies  

of  the  Petitioner  to  the  show  cause  notices,  and  to  decide  whether  the  

allegations  are  required  to  be  referred  to  the  Disciplinary  Committee  or  the  

matter should be closed.   

7. The petitioner raised two issues in this petition.   

(i)  The  first  ground  of  objection  was  that  the  Committee  was  not  validly  

constituted.  This was on the footing that the rules and regulations of the first  

respondent  society  are  a  matter  of  contract  amongst  its  members,  and  the  

Committee should be constituted strictly in accordance with the particular rule.  

The above referred rule 1 (q) provides for a Disciplinary Committee consisting of  

the President and two other persons.  Since the President had recused himself  

from the Committee, the Disciplinary Committee will have to either wait until the  

next President is elected so that the committee is reconstituted after including  

the new President therein,  or if  the Committee is to consist of three persons  

other than the President,  it  should consist of  persons who are unbiased and  

acceptable to the petitioner.  

(ii) The second objection was that the members of the Committee suffered from  

an institutional bias.  The petitioner could not expect fairplay from the members  

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who have already been party to the decision to initiate the disciplinary action  

against the petitioner.   

8. This  Writ  Petition was dismissed by a Division Bench of  Bombay High  

Court by its judgment and order dated 15.7.2010.  The Division Bench rejected  

the submission about the defect in the Committee.  It held that the substitution  

of the President by Shri Jyotiraditya Scindia was acceptable on the basis of the  

doctrine of necessity.  It repelled the argument with respect to bias, and held  

that whatever decision is rendered by the Committee could be challenged by the  

petitioner after the decision became available.  The Court further held that in  

case  the  petitioner  had  any  grievance  against  the  functioning  of  any  of  the  

members of the Committee, he may apply to the Committee that such a member  

may recuse himself from the Committee.  This order has been challenged in the  

first SLP (C) No. 27157/2010.  

9. Subsequent  to  the  order  passed  by  the  Division  Bench,  the  

petitioner  applied  to  the  Committee  members  that  they  should  all  recuse  

themselves  from functioning  as  members  of  the  Disciplinary  Committee.  The  

Committee rejected that application.  It led to the filing of second Writ Petition  

by the petitioner in Bombay High Court bearing Petition No. 1909 of 2010.  That  

petition also came to be dismissed by another Division Bench of Bombay High  

Court by its judgment and order dated 15.9.2010.  This order is challenged in the  

second CC No. 15249/2010.  

10.  During  the  course of the calendar year 2010, the first respondent  

constituted a regular Disciplinary Committee for 2010-2011, and extended the  

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special  Committee  consisting  of  Sarvashri  Arun  Jaitley,  Chirayu  Amin  and  

Jyotiraditya Scindia for continuing with the enquiry against the petitioner.  The  

extension granted to this Committee was challenged by the petitioner by filing  

Suit No. 195/2011 on the original side of the Bombay High Court.  The notice of  

motion  moved  therein  for  injunction  against   the   Committee   came  to  be  

rejected first by a Single Judge  and  then  in appeal by a Division Bench of the  

High Court by its order dated 5.4.2011.  This order is challenged in the third CC  

No. 11545/2011.  Since all these petitions are basically arising out of the same  

controversy, they have been heard and are being decided together.

11. Shri Ram Jethmalani, learned Senior Counsel and Shri Vinod Bobde,  

learned  Senior  Advocate  have  appeared  for  the  petitioner.   Shri  Aryama  

Sundaram, learned Senior Advocate has appeared for the first Respondent.  Shri  

Ranjit Kumar, Senior Advocate has appeared for Shri N. Srinivasan, Secretary of  

first respondent.   

12. As stated above, the objections of the petitioner to the constitution  

of  the  Committee  are  two  fold.   Firstly,  the    Committee  was  not  validly  

constituted and secondly, it suffers from institutional bias.  As far as the first  

objection is concerned, Shri Jethmalani submitted that under the above rule 1  

(q), the Disciplinary Committee can consist only of the President and two other  

persons.  A society is constituted as a matter of contract amongst the members  

who form the society.  It is expected to function as per the rules and regulations  

of the society which constitute the terms of contract amongst its members.  In  

the present case, the rule concerning the Disciplinary Committee required the  

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Committee to consist of the President and two other persons.  If the President  

recuses himself, from being a member of the disciplinary Committee, either the  

society  should  wait  until  a  new  President  is  elected  to  constitute  the  new  

Disciplinary Committee, or since it  is  a matter of contract,  the Committee be  

reconstituted with such persons to whom the petitioner has no objection.  Shri  

Jethmalani submitted that he has no objection to a Committee of three former  

Judges  or  even a decision  by a  former  Judge of  this  Hon’ble  Court.   In  his  

submission the petitioner  had a reasonable apprehension of  bias  against  the  

members of the Committee, and therefore a reconstitution of the Committee as  

suggested by the petitioner was desirable from the point of view of fair-play.

13. In view of these suggestions,  we asked Shri  Sundaram, learned  

senior  counsel  for  the  first  respondent,  whether  the  first  respondent  was  

agreeable to accept this suggestion.  In deference thereto, Shri Sundaram did  

take instructions,  but pointed out that the Disciplinary Committee of the first  

respondent is required to conduct numerous inquiries.  If the first respondent  

agrees to a Disciplinary Committee consisting of outsiders in this matter, it may  

have to agree to similar request in many such matters, and that would not be  

desirable.

14. Shri Sundaram submitted that it is only because of the objection of  

the petitioner that Shri Manohar had recused himself from the Committee in all  

fairness.  In a situation like this, the first respondent had to reconstitute the  

Committee by substituting another person in place of the President, and in view  

of the serious allegations against the petitioner, the inquiry could not wait for  

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one more year for the next President to be elected.  Since, the substitution had  

become necessary in view of petitioner’s objection, it was not fair on his part to  

make any grievances against the reconstituted Committee.  This submission of  

the first respondent based on the doctrine of necessity has been accepted by the  

Bombay High Court in its judgment rendered in the first Writ Petition bearing No.  

1370 of 2010.  

15. As  far  as  the  allegation  of  bias  against  the  members  of  the  

Committee  is  concerned,  the  petitioner  had  in  his  letter  dated  25.5.2010  

objected to Shri Shashank Manohar remaining on the Committee.  At that time  

he did not raise any objection to the other members of the Committee, namely  

Shri Arun Jaitely and Shri Chirayu Amin. In paragraph 3 (C) of this letter he  

stated as follows:-

“C. It is submitted that it is not my endeavor to create   any technical hurdle in the process and no hurdle shall be caused   if  an  independent  body  constituting  of  other  members  of  the   Board is formed.  It is submitted that there are only 14 members   of the Governing Council and hence BCCI can choose and appoint   independent persons to investigate into these allegations……..”

16. In his Writ Petition No.1370 of 2010, the petitioner joined S/Shri  

Chirayu Amin and Arun Jaitely and Jyotiraditya Scindia as respondent no.4, 5 and  

6.  In para 4 of this Writ Petition, he stated as follows:-

”4. Respondent Nos.3 (sic), 4 and 5 and 6 are members   of  the  Disciplinary  Committee  of  Respondent  No.1  (“the   Disciplinary Committee”).  This Disciplinary Committee has been   entrusted with  the function  of  examining the  allegations  made   against the Petitioner, in the three Show Cause Notices, issued to   the  Petitioner.   The  Petitioner  is  challenging  the  constitution,   composition and continuation of the Disciplinary Committee.  The   Petitioner is also alleging institutional bias against the Disciplinary   Committee.   The  Petitioner  is  however  making  no  personal   

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allegation of personal bias or malice against Respondent Nos. 5   and 6.”

Thus, it is clear that as far as Shri Jaitely and Shri Scindia are concerned, the  

petitioner stated that he was not making any personal allegation of personal bias  

or malice against them.  He was alleging institutional bias against the members  

of the Disciplinary Committee.

17. As far as Shri Chirayu Amin is concerned, all that was additionally  

stated against him was that Shri Amin had a 10% share in a party which gave  

the bid on behalf of an applicant from Pune.  Shri Sundaram pointed out that the  

bid of that party was rejected.  The only other blame against Shri Amin was that  

he succeeded the petitioner as the Chairman of IPL and, therefore, he would be  

biased against him.

18. The petitioner denies that he has played any deceit in the matter of  

entering  into  any  of  the  disputed  agreements,  or  that  he  has  received  any  

kickbacks.  The submission of Shri Jethmalani concerning bias was on the footing  

that the disputed agreements under which the petitioner is alleged to have made  

some 80 million dollars by way of kickbacks, were approved by the Governing  

Council of IPL on 11.8.2009.  Thus, this was known to all concerned and there  

was  no  deceit  on  the  part  of  the  petitioner,  and  therefore,  there  was  no  

substance in the allegation.  Respondents point out that these three members of  

the Disciplinary Committee were not present in that meeting, though, they were  

present in the subsequent meeting held on 2.9.2009 when these minutes were  

approved.  Petitioner’s allegation of bias is also on the footing that the three  

members  of  the  Committee  were  present  in  the  meeting  of  the  Governing  

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Council of IPL held on 25.6.2010, when it decided to charge the petitioner with  

fraud.   They  were  also  present  in  the  Special  General  Meeting  of  the  first  

respondent  held  on  3.7.2010  where  the  President  of  first  respondent  was  

authorized to take appropriate civil and criminal action against the petitioner.  An  

FIR was lodged in pursuance thereto on 13.10.2010.  It is therefore contended  

that the petitioner has a reasonable apprehension of bias against these three  

members that he may not get a fair hearing and an unbiased finding on the  

allegations from them.

19. As far as this aspect is concerned, the respondents maintain that  

they were kept in dark about the agreement/arrangement that the petitioner  

entered  into  with  the  concerned  parties  from  whom  he  is  alleged  to  have  

received kickbacks.  In any case, the three members of the Committee were not  

present in the meeting of Governing Council of IPL held on 11.8.2009 when the  

disputed agreements were allegedly approved.  And to take the argument at its  

best,  they  were  present  in  the  three  subsequent  meetings  referred  by  the  

petitioner.  These agreements were approved by the General Body on 2.9.2009.  

The  further  action  was  also  approved  in  the  Governing  Council  meeting  of  

25.6.2010 and Special General Meeting of 3.7.2010.  The question is whether the  

participation by these members in these three meetings would disqualify them  

from being the members of the Disciplinary Committee.   

20. In  view  of  these  objections  to  these  three  members  of  the  

committee,  we  asked  Shri  Jethmalani,  whether  he  was  objecting  to  these  

members because they were members of the Governing Council in which case  

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some other members from the General Body could be asked to be members of  

the  Committee.   Shri  Jethmalani,  however  stated  that  the  appellant  was  

objecting only to these three members of the Governing Council, and not even to  

the other members of the Governing Council.  Now, there is no logic as to why  

only these three persons can be said to be suffering from institutional bias, and  

not the other members of the Governing Council.  And, if the other members of  

the Governing Council could be members of the Disciplinary Committee, there is  

no reason as to why these three members could not be.   

21. Shri Jethmalani submitted that we are concerned with reasonable  

apprehension of bias.  This principle has been accepted by this Court in Manak  

Lal Vs. Prem Chand Singhvi reported in [AIR 1957 SC 425], in the context  

of an inquiry under the Bar Council Act, 1926.  At the end of paragraph 6 this   

Court had observed that ‘actual proof of prejudice in such cases may make the   

appellant’s  case stronger  but  such  proof  is  not  necessary  in  order  that  the   

appellant should effectively raise the argument that the tribunal was not properly   

constituted’’.   He pointed out that in  S. Parthasarthi Vs. State of Andhra  

Pradesh  reported in  [1974 (3) SCC 459],  the view taken by the Court was  

similar.   This  Court  held  that  the  test  of  likelihood  of  bias  was  based  on  

reasonable apprehension of a reasonable man fully cognizant of the facts, and  

relied upon the leading English judgment in the case of R Vs. Sussex, JJ, ex. p.  

McCarthy reported in (1924) 1 KB 256.  In paragraph 16 of S. Parthasarthi  

this Court has observed as follows:-

“The tests of “real likelihood” and “reasonable   suspicion” are really inconsistent with each other. We think that the   

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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, he 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. v. Lannon]. 1  

     1.  (1968) 3  WLR 694 at 707

We  may  mention  that  Shri  Jethmalani  drew  our  attention  to  the  recent  

development  in  English  Law in this  behalf,  where ‘real  danger  of  bias’  is  no  

longer considered to be the test, but the relevant consideration is as to whether  

there  was  real  possibility  that  the  tribunal  was  biased.   He  referred  to  the  

judgments in the cases of R. Vs. Gough reported in (1993) 2 All ER 724, and  

Porter Versus Magill reported in (2002) 1 ALL ER 465.

22. Shri Jethmalani and Shri Bobde drew our attention to a judgment  

of House of Lords in Mclnnes Vs. Onslow Fane reported in (1978) 3 All ER  

211 wherein three types of cases are discussed, viz. (i) application cases; (ii)  

inspection cases; and (iii) forfeiture cases.   It was submitted that principles of  

natural  justice  have to be followed in  any case in  the category  of  forfeiture  

cases.  In the present case the reputation of the petitioner was at stake and,  

therefore, the principle that no man should be judge in his own case, had to be  

followed.   According  to  the  petitioner,  the  members  of  the  Disciplinary  

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Committee could not be said to be unbiased.  They were part of the institution,  

and therefore suffered from institutional bias.   

23. In reply, Shri Sundaram, learned counsel for BCCI submitted that  

the members of a Society have to abide by the Rules and Regulations thereof  

and submit themselves to the jurisdiction of the domestic tribunal, though some  

of  the  members  of  the  tribunal  may  even  appear  to  him  to  be  acting  like  

prosecutors.  A member cannot place himself above the Institution. He is bound  

by the rules, and cannot complain unless the inquiry disclosed malafides or unfair  

treatment.  A society is comparable to a club or a Masonic Lodge.  A judgment in  

the case of T.P. Daver Vs. Lodge Victoria reported in [AIR 1963 SC 1144]  

is relevant in this behalf wherein this Court has held in paragraph 7 thereof as  

follows:-

“7.  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  in  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."  

Another difficulty that one is confronted with in proceedings held by   committees constituted by clubs is to demarcate precisely the line   

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between the prosecutor and the Judge. Maugham, J.  noticed this   difficulty and observed in Maclean's case1 (1929) 1 Ch. 602 thus :  

"In many cases the tribunal is necessarily entrusted with   the duty of appearing to act as prosecutors as well as that of   judges; for there is no one else to prosecute. For example, in a   case where a council is charged with the duty of considering   the conduct of any member whose conduct is disgraceful and of   expelling him if found guilty of such an offence, it constantly   occurs that the matter is brought to the attention of the council   by a report of legal proceedings in the press. The member is   summoned to appear before the council. The council's duty is to   cause him to appear and to explain his conduct. It may be that   in so acting the council are the prosecutors. In one sense they   are; but if the regulations show that the council is bound to act   as I have mentioned and to that extent to act as prosecutors, it   seems to be clear that the council is not disqualified from taking   the further steps which the rules require."  

Though it is advisable for a club to frame rules to avoid conflict of   duties, if the rules sanction such a procedure, the party, who has   bound himself by those rules, cannot complain, unless the enquiry   held pursuant to such rules discloses malafides or unfair treatment.”  

                          1.  LR (1929) 1 Ch D 602,   623

24. On the issue of bias however, Shri Sundaram pointed out that as  

far  as the law in  India  is  concerned,  a Constitution  Bench of  this  Court  has  

already clarified the legal position, and held that the test of ‘real danger’ of bias  

is the valid test and not the one of reasonable apprehension. In  M.P. Special  

Police Establishment Vs. State of M.P.  reported in  [2004 (8) SCC 788],  

the Constitution Bench was concerned with the question of bias in the context of  

sanction to prosecute the ministers.  In paragraph 14, the Court observed as  

follows:-

“…..The question in such cases would not be whether they   would  be  biased.   The  question  would  be  whether  there  is   reasonable  ground  for  believing  that  there  is  likelihood  of   apparent  bias.   Actual  bias  only  would  lead  to  automatic   

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disqualification where the decision-maker is  shown to have an   interest  in  the  outcome  of  the  case.   The  principle  of  real   likelihood of bias has now taken a tilt to “real danger of bias” and   “suspicion of bias…...”

The Constitution Bench referred with approval an earlier judgment in the case of  

Kumaon Mandal Vikas Nigam Ltd.  Vs. Girija Shankar Pant reported in  

[2001 (1) SCC 182].  In that case the question was whether the Managing  

Director had a bias against the respondent therein.  This Court had held that  

mere apprehension of bias was not sufficient but that there must be real danger  

of bias.

25. With respect to the doctrine of necessity, Shri Sundaram referred to  

the judgment of this Court in the case of Election Commission of India Vs.  

Dr. Subramaniam Swamy  reported in  [1996 (4) SCC 104] where in the  

context of the disagreement amongst the Election Commissioners, this Court had  

applied  this  doctrine  of  necessity.  He  pointed  out  that  this  Court  had  even  

observed that ‘if the choice is between allowing a biased person to act or to stifle   

the action altogether, the choice must fall in favour of the former as it is the only   

way to promote decision making’. Shri Jethmalani on the other hand submitted  

that  the  doctrine  of  necessity  could  be  applied  in  cases  of  constitutional  or  

statutory requirements, and cannot be brought into in matters of contract.  He  

submitted  that  this  judgment  should  be  read  as  such,  and  assailed  the  

application of doctrine of necessity in the present case.

26. Shri  Jethmalani drew out attention to a recent judgment of  this  

Court in  Justice P.D. Dinakaran Vs. Hon’ble Judges Inquiry Committee  

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and ors  reported in  [2011 (6) SCALE 97],  where this  Court  accepted the  

grievance of apparent bias against a Jurist Member of the Inquiry Committee and  

requested the Chairman of Rajya Sabha to nominate another jurist in his place in  

the inquiry against the petitioner.  Shri Sundaram however, pointed out that the  

committee was constituted as a matter of Constitutional requirement where the  

benchmark required with respect to fairness will be quite high.  In the present  

matter we are concerned with the question of likely unfairness on the part of  

members of a domestic tribunal of a society, and that context has to be kept in  

mind.   

27. We have noted the submissions of the rival parties.  The objection  

of Shri Jethmalani to the forming of the Disciplinary Committee was on the basis  

of rule 1 (q).  When we read this rule we find that the rule states that the Board  

shall at every Annual General Meeting appoint a Committee consisting of three  

persons.  The President shall be one of them and the function of the Committee  

is to inquire into and deal with the matters relating to any acts of misconduct  

etc.  In view of the wording of this rule, there is no difficulty in accepting that  

normally the President has to be one of the members of this Committee.  The  

question is  with  respect  to the necessity arising on account  of  the President  

being unavailable in a situation like the present one.  

28. In this connection, we must note that the word ‘shall’  has been  

interpreted as ‘may’ in a number of judgments while interpreting such provisions  

on different occasions.  In State of U.P. Vs. Manbodhan Lal reported in [AIR  

1957 SC 912] a Constitution Bench of this Court was concerned with the order  

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of  Compulsory  Retirement  of  the  respondent  who  had  challenged  it  on  the  

ground that the Union Public Service Commission had not been consulted.  This  

was in  the context  of  Article  320 (3)  (c)  of  the Constitution  which reads  as  

follows:-    

“320 (3)  “The Union  Public  Service  Commission or  the   State Public Service Commission, as the case may be, shall be   consulted.

(a)……….. (b)……….

(c) on all  disciplinary matters  affecting a person serving   under the Government of India, or the Government of a State in   a civil capacity, including memorials or petitions relating to such   matters.”

The Constitution Bench held that the consultation was not mandatory.  The Court  

observed in paragraph 11 of the judgment as follows:-

“……..the  use  of  the  word  "shall"  in  a   statute,  though generally  taken in a mandatory sense, does not   necessarily mean that in every case it shall have that effect, that is   to  say,  that  unless  the  words  of  the  statute  are  punctiliously   followed, the proceeding, or the outcome of the proceeding, would   be invalid.

On the other hand, it is not always correct to say that where the   word  "may"  has  been  used,  the  statute  is  only  permissive  or   directory in the sense that non-compliance with those provisions   will  not  render  the  proceeding  invalid.  In  that  connection,  the   following quotation from Crawford on 'Statutory Construction' - Art.   261  at p. 516, is pertinent :  

"The question as  to  whether  a  statute is  mandatory  or   directory depends upon the intent of the legislature and not upon   the language in which the intent is clothed. The meaning and   intention  of  the  legislature  must  govern,  and these  are to  be   ascertained, not only from the phraseology of the provision, but   also by considering its nature, its design, and the consequences   which  would  follow  from  construing  it  the  one  way  or  the   other........"  

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29. We may as well profitably refer to a judgment of this Court in the  

case of  State of A.P. and another Vs. Dr. Rahimuddin Kamal reported in  

[AIR 1997 SC 947].  In that matter this Court was concerned with Rule 4(2) of  

the  Andhra  Pradesh  Civil  Services  (Disciplinary  Proceedings  Tribunal)  Rules,  

1961,  where  the  expression  ‘shall’  had  been  used  in  the  Rules,  making  it  

obligatory upon the part of the Government, to examine the records, consult the  

Head of the Department and Vigilance Commission and then pass an appropriate  

order.  In that case the order of removal from service was passed in accordance  

with  law and after  conducting  appropriate  inquiry  but  without  consulting  the  

Commission.   The Court  took the  view that  the  expression  ‘shall’  had to be  

construed as ‘may’ and non consultation with the Commission would not render  

the order illegal or ineffective.

30. In  the  instant  case  the  petitioner  himself  had  objected  to  the  

President being the member of the Committee.  That being the position, the  

President recused himself from the Committee.  When a situation thus arises, in  

view of  the objection  of  the petitioner,  the society  cannot  be  left  without  a  

remedy.   The submission of  Shri  Jethmalani  is  that  the alternate  disciplinary  

committee has to be one which is not objected by the petitioner.  The rules lay  

down the terms of the contract amongst the members of the society, and the  

terms can be altered only with the consent of the concerned members.  As far as  

this submission is concerned, we must note that firstly, the rule does not say  

that if the President cannot be a member of the Committee no substitution shall   

take place,  nor does  it  say that  the substituting  member should be one not  

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objected by the delinquent against whom the enquiry is proposed.  This rule is  

being canvassed as a term of the contract of membership.  A member of the  

society  having accepted the rules,  agrees  to  the disciplinary  authority  of  the  

three  member  Committee  which  is  to  be  constituted  under  these  rules.   He  

cannot  claim  a  right  to  dictate  as  to  who  should  be  the  members  of  the  

Committee. Any such interpretation will lead to a situation that the delinquent  

will decide as to who should be the members of the Disciplinary Committee. Such  

a  submission  cannot  be  accepted.   In  our  understanding  the  rule  is  elastic  

enough, and in an appropriate situation the word ‘shall’ can be read as ‘may’.  It  

is very clear that, normally the President shall be a member of three Member  

Committee, but if for any reason his presence on the Committee is objected to  

on grounds of unfairness, and he recuses himself therefrom, the respondent no.1  

certainly has the power to substitute him by some other person. The action of  

the  respondents  is  sought  to  be  defended  on  the  basis  of  necessity.   The  

doctrine of necessity is a common law doctrine, and is applied to tide over the  

situations where there are difficulties.  Law does not contemplate a vacuum, and  

a solution has to be found out rather than allowing the problem to boil over.  

Otherwise, as proposed by Shri Jethmalani one will have to wait for one more  

year for a new President to be elected, which submission cannot be accepted.  

31. As far as the disciplinary actions by societies and associations are  

concerned, many of the societies under the Tamil Nadu Societies Registration Act  

and similar State Acts, are smaller societies.  It is another matter that the first  

respondent society is a large body having large resources.   If the members or  

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the Managing Committee of a Society receive a complaint of any misconduct on  

the part of any of its office bearers, surely the subject is expected to be taken up  

in the General Body Meeting of the Society.  These societies are expected to sort  

out the future course of action with respect to such allegations on their own on  

the  basis  of  their  internal  disciplinary  mechanism.   Merely  because  all  the  

members  of  a  society  have  participated  in  the  discussion  concerning  such  

allegation,  the  Society  can’t  be  expected  to  appoint  an  outsider  to  hold  the  

disciplinary proceeding.  It may not be financially possible as well for such small  

societies.  That apart, only a prima facie opinion is formed in such meetings.  

Merely  because  a  member  has  participated in  such a meeting  he cannot  be  

accused  of  bias  to  disentitle  him  from  being  appointed  on  the  Disciplinary  

Committee.

32. We have noted the submissions of the petitioner with respect to his  

apprehensions.  However, as far as the propositions of law are concerned, we  

cannot take a different view in the present case from the law laid down in the  

judgment  of  the  Constitution  Bench  of  this  Court  in  M.P.  Special  Police  

Establishment (supra), and the judgment of four Judges in  T.P. Daver Vs.  

Lodge Victoria  (supra).  As held in  M.P. Special  Police Establishment,  a  

mere apprehension of bias cannot be a ground for interference.  There must  

exist a real danger of bias.  And, following  T.P. Daver Vs. Lodge Victoria,  

though such domestic  inquiries  have undoubtedly  to be fair,  a member of  a  

society cannot stretch the principle  of fairness to the extent of demanding a  

tribunal consisting of outsiders, on the basis that the society members are biased  

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against him.  As we have noted, the petitioner has, in clear terms stated that he  

was not making any personal allegations against two members of the Disciplinary  

Committee, viz. Shri Jaitely and Shri Scindia.  Even the grievance against the  

third member Shri Amin cannot be said to be well founded.  The petitioner was  

alleging institutional bias against the members of the Committee, which was only  

on the basis of their participation in the meetings of the first respondent society.  

In  this  way,  institutional  bias  can  be  alleged  against  every  member  of  the  

Governing Council  of IPL and the General Body of the first respondent which  

cannot be accepted.  The petitioner may have an apprehension, but it is not  

possible to say from the material on record that he was facing a real danger of  

bias.  We cannot presume that the three member committee will not afford the  

petitioner a fair hearing, or that it will not render unbiased findings.  Taking a  

view as canvassed by the petitioner will lead to a demand for interference in the  

enquiries conducted by all other societies in such situations, and that cannot be  

approved in view of the law already laid down by this Court.  This is apart from  

the view that we have taken, that the Committee is validly constituted under  

Rule 1(q) in view of the necessity arising due to the recusal of the President of  

BCCI from the Committee.

33. This being the position, we find no error in the judgment and order  

dated 15.7.2010 passed by the Division Bench of the Bombay High Court in Writ  

Petition No.1370 of 2010.  Similarly, we do not find any error in the order of the  

Disciplinary Committee declining to recuse, or the decision of the Annual General  

Meeting of the first respondent to extend the term of this Disciplinary Committee  

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for the inquiry against the petitioner.  Consequently, there was no error in the  

two judgments of the High Court upholding those two decisions as well.

34. For the reasons stated above, all the three petitions are dismissed,  

though parties can certainly bear their cost of the litigation.

…………………………………..J.  ( J.M. Panchal )

  …………………………………..J.  ( H.L. Gokhale  )

New Delhi

Dated: September 26, 2011

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