The Supreme Court on Monday dismissed a Special Leave Petition (SLP) filed by the members of the Kerala Cricket Association against the decision of the Kerala High Court which had declared them the President and the Secretary of the Association as public servants as, in view of the High Court, they were performing public duty. The High Court opined thus in view of the fact that the Association was enjoying near monopoly status and selecting players for the State of Kerala, "very future of young cricketers, who are professionals thus depend on the Kerala Cricket Association".
In as much as the Supreme Court's order dated 31.01.2011 records, the petition under Article 136 of the Constitution has been dismissed observing as under;
We find no reason to interfere with the impugned order in exercise of our discretion under Article 136 of the Constitution. The Special Leave Petitions are, accordingly, dismissed.
Thus the findings of the High Court have been affirmed. However the declaration of law by the Supreme Court would have to await another matter. For those interested in the legal dynamics of the SLP dismissal by the Supreme Court, we recommend our earlier post wherein the effect of in-limine dismissal of SLP has been discussed in detail. The title for this post and also our comments above, therefore, do not state (like what the newspapers have been reporting) that the Supreme Court has declared that members of Cricket Association are public servants. The Court has only not found a reason to exercise its extra-ordinary jurisdiction in the present matter. There is no declaration of law on this issue, as we have explained in our earlier post.
For the benefit of our readers, however, we are extracting the relevant observations of the Kerala High Court which in K.BALAJI IYENGAR v. STATE OF KERALA held as under;
1. Whether office bearers of Kerala Cricket Association are public servants as defined under section 2(c) of Prevention of Corruption Act, 1988 is the question to be settled in the petition.
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10. The definition of 'public servant' under section 2(c) of the Act is much wider than the definition of public servant under section 21 of Indian Penal Code. As the only contention is that respondents 2 and 3 are public servants as defined under sub clause (viii) and (xii) of Section 2 (c), it is not necessary to consider the other sub clauses in clause (c) of Section 2. The relevant sub clauses as defined under section 2(c) reads:-
"viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;xii)any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."
11. First Explanation of Clause (c) provides that persons falling under any of the sub clauses are public servants, whether appointed by the Government or not. Second Explanation provides that wherever the word 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
12. Public duty is defined under clause (b) of Section 2 as follows:-
"public duty" means a duty in the discharge of which the State, the public or the community at large has an interest."
13. Under sub clause (viii), any person who holds an office by virtue of which he is authorized or required to perform any public duty is a public servant. Public duty as provided under the sub clause means a duty in the discharge of which the State, the public or the community at large has an interest. As rightly argued by the learned counsel appearing for respondents 2 and 3, the public or the community at large may have some interest in the performance of an act by a private individual. But for the reason that either the public or the community at large has an interest, on that act, it cannot be said that the private individual is a public servant as defined under sub clause (viii) of Section 2 (c). The performance of that public duty must be which, he is either authorized to do or required to perform, as he holds the office. Even if an act performed by a person is beneficial to the public or to the community at large and therefore the community has an interest on its performance, that by itself will not make the act a public duty or the person a public servant. It must be shown that the person is either required to perform or authorized to perform the same by virtue of the office which he is holding. The question is whether the duty to be performed by respondents 2 and 3 as Secretary and President of Kerala Cricket Association are public duties and if so, whether they are public servants as defined under sub clause (viii) of clause (c) of Section 2.
14. In order to attract sub clause (viii), the person must firstly hold an office. Secondly by virtue of that office he should be authorised to do a public duty or required to perform a public duty. Therefore even if a person is holding an office, but if by virtue of that office he is not authorised or required to perform any public duty, for the reason that he is holding an office, he will not be a public servant as defined under sub clause (viii). The essence of sub clause (viii) is that the person who holds the office, shall by virtue of that office, either be authorised or required to perform any public duty. The next question is what is public duty. Only if the public or the State or the community at large has an interest in that duty to be performed, it would be a public duty as provided under clause (b) of Section 2. Therefore if a person has to perform a duty and either the State, the Public or the community at large has an interest in that duty to be discharged by that person, the duty would be public duty as defined under clause (b) of Section 2 of the Act. The question then is what is the duty, in the discharge of which State, public or the community at large has an interest.
15. Word "duty" is not defined under the Act. Duty is defined in Encyclopedic Law Lexicon by Justice C.K.Thakkur Vol.2 2008 Edn. at page 1586 as follows:-
"The word "duty" connotes obligation. A Court or individual is said to be under a duty only when such Court or the person concerned is bound to perform the function. The word "duty" will not be apt in the context of a discretion to do the particular thing. That expression denotes that one cannot refute to perform the act but is bound to do it."
Black's Law Dictionary 7th edn. page 521 gives the following meaning to " duty".
"A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right"
16. Annxure E bye-law of Kerala Cricket Association shows the following aims and objects namely:-
a) To instill, promote and propagate interest in Cricket among the people.b) To popularize, regulate and control Cricket in the State.c) To participate in, conduct and regulate matches and tournaments.d) To arrange for the coaching of players.e) To train and maintain a panel of umpires.f) To organize and affiliate District Cricket Association; andg) To resort to all such measures and do all such acts as are conducive to the furtherance of Cricket.
As per the bye-law, the office bearers of the Association are the President, Vice Presidents, Honorary Secretary, Honorary Joint Secretary and the Honorary Treasurer. Under clause 11 of the bye-law, affairs of the Association shall be governed and controlled by the General Body and managed by the Central Council. Under the byelaw Central council shall have the powers as may be specifically allotted to by the General Body in addition to the following powers specifically provided which include-
(a) to carry out the objects of the Association specified in the Memorandum of the Association.(b) to interpret, make, repeal, amend, add to and maintain or public all necessary regulations, byelaws. etc.(c) To allocate the duties of the Honorary Secretaries as between themselves and to define whenever necessary the powers of the office bearers association.(d)(i) To prohibit any act or practice by any member or by cricketer or professional cricketer serving the Association or an official coach or umpire appointed by the Association which in the opinion of the Council us detrimental to the interests of the game and deal with any member disregarding such prohibition in such manner as it may in its discretion think proper(ii) To take such action as it deems fit against a District Association including disaffiliation(e) To arbitrate and to decide all disputes or questions referred to it by the members or by any other person or Association.(f) To inflict penalties on any member or any person for the infringement of the laws of cricket or the rules of the Association.(g) To appoint a manager or managers and get his or their assistance to manage tours undertaken by the Association(h) To invite the co-operation of persons other than its members for any special purpose and to select them as members of any sub-committee.(i) To reinstate upon teams or otherwise and for good causes any player who has ceased to be an amateur or a professional as the case may be.(o) To maintain a panel of first class umpires.(p) To execute, sign, seal, deliver or cause to be executed, signed, sealed and delivered all such agreements, deeds, documents and assurances as may be necessary to carry out the objects of the Association.(u) To appoint the various selection committees.(v) To prescribe norms for the satisfactory conduct of tournaments by affiliated clubs etc.
Hence being the Secretary and President of the Association, respondents 2 and 3 are required and authorised to perform the duty in furtherance of the said aims and objects of the Association. The question is whether the office bearers of the Cricket Association, who hold office, by virtue of holding the office are authorised or required to perform any public duty.
17. On certain aspects there is no dispute between the parties. The Kerala Cricket Association is a Society registered under Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The Association was not created under any statute. The Association has not only the monopoly status as regards the regulation of the game of cricket in Kerala but can also lay down criteria for its development for all intend and purport. Kerala Cricket Association is recognized by the State of Kerala as the body to promote and regulate the game of cricket. The Kerala Cricket Association has to select the team to represent the State of Kerala in the Ranji Trophy and other allied tournaments. It has to select not only the teams but also umpires. The Association has to organize one day internationals. The team is not known as the team of Kerala Cricket Association but the team representing State of Kerala. If a player is not selected to State team, he cannot aspire to play for the Indian team. Cricket is now not a mere game. The very future of young cricketers, who are professionals thus depend on the Kerala Cricket Association. The decision taken by the Association would thus affect materially the players who have thus an interest on the performance of the duty by the office bearers. Hence for all intent and purport Cricket Association exercises the monopoly of cricket.
18. The Honourable Supreme Court in Zee Telefilms Ltd. and another v. Union of India and others (2005(4) SCC 649) had occasion to consider the character of BCCI to which Kerala Cricket Association is affiliated. Their Lordships held:-
219. "The Board's activities representing" the country are not confined to international forums only. The Board within the country organises and conducts the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy. Although, these are domestic events, indisputably only those who are members of the Board and/or recognised by it can take part therein and none else. This also goes to show that the Board regulates domestic competitive cricket to the fullest measure and exercises control over its members which represent the five zones in India, all the State federations besides a few other clubs which are its members, two of which it will bear repetition to state, are governmental organisations.
220. Indisputably the Board is a regulator of cricket played at the country level both off and on the fields including selection of players and umpires. ICC possesses and exercises all the powers to regulate international competitive cricket. It exercises disciplinary power also as in case of violation of the Rules, a country member or the player may be derecognised. ICC exercises a monopoly over the sport at the international level whereas the Board does so at the country level. It is the Board only, to the exclusion of all others, that can recognise bodies who are entitled to participate in the nominated tournaments. Players and umpires also must be registered with it. In the event of violation of its Rules and Regulations, which may include participation in an unauthorised tournament without its permission, a player or umpire would forfeit his right to participate in all official cricket matches which for all intent and purport shall be the end of the career of a professional cricketer or umpire.
221. In our constitutional scheme, rule of law would, by all means, prevail over rule of cricket. A body regulating the game of cricket would be compelled by the court to abide by rule of law. If the promotion of the cricket, selection of the cricket team, the regulation of cricket are all matters which the community at large has an interest, then those duties are to be performed by respondents 2 and 3 as the office bearers of the Cricket Association.
19. Question then is whether the duty to promote the game of cricket in the State of Kerala, duty to select the team to represent the State, duty to regulate the game within the State are public duties as defined under clause (b) of Section 2. True, a private individual may do acts which may be beneficial to the community at large, though such private citizens are not bound by any law or regulation to do such acts. Therefore for the reason that on such acts being performed by a person in which the community at large has an interest will not make it a public duty. Unless the community at large has a right to enforce the said act or performance, it will not be a public duty. The argument of the learned counsel appearing for respondents 2 and 3 is that the community at large or the public has no right to enforce the performance of the act which respondents 2 and 3 are to be performed as office bearers of the Association and when there is no corresponding right available to the public at large or members of the community, it cannot be termed a public duty. The Honourable Supreme Court in Zee Telefilms Ltd (supra) held:-
136. The Board while enjoying monopoly in cricket exercises enormous power which is neither in doubt nor in dispute. Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player's career as was in the case of Greig. The right to pursue an occupation or the right of equality are embedded in our Constitution whereby citizens of India are granted much higher right as compared to the common-law right in England. A body although selfregulating, if performs a public duty by way of exercise of regulatory machinery, a judicial review would lie against it as was in the case of Datafin. The question has since been considered from a slightly different angle viz. when such action affects the human right of the person concerned holding that the same would be public function. (See Donoghue.) If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or by reason thereof an injury or material prejudice is caused to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the Board being public functions, any violation of or departure or deviation from abiding by the Rules and Regulations framed by it would be subject to judicial review. Time is not far off when having regard to globalisation and privatisation the rules of administrative law have to be extended to private bodies whose functions affect the fundamental rights of a citizen and who wield a great deal of influence in public life."
Therefore submission of learned counsel appearing for respondents 2 and 3 that though the public or the community may have interest in the performance of the conduct of the Association, what is being performed is not a public duty cannot be accepted. Their Lordships of the Supreme Court in Zee Telefilms Ltd (supra) held:-
"Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian Cricket team, controlling the acitivities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32."
20. Learned counsel appearing for respondents relying on the decision of the Apex Court in Nirmal Kaur's case (CDJ 2009 SC 937) argued that so long as respondents 2 and 3 are not to performing any public duty as authorised or required by virtue of the offices held by them, they cannot be public servants as defined under sub clause (viii) of clause (c) of Section 2 of the Act. The facts of that case are different. The respondent in that case was running a coaching centre. Charge was framed against him for the offences under sections 420, 465, 467, 468, 471 and 120B of Indian Penal Code and Section 13(1)(d) read with section 13(2) of Prevention of Corruption Act. The trial court framed charge finding that respondent is a public servant relying on sub clause (viii) (xi) and (xii) of clause (c) of Section 2 of the Act. Their Lordships of the Supreme Court set aside that finding holding that by running a coaching centre, respondent was not performing any public duty. It was held that the submission that he is a public servant, overlooks the basic requirement of sub clauses (viii) of clause (c) of Section 2, which is applicable only when a person holds an office by virtue of which she is authorised or required to perform any public duty. As it is nobody's case that respondent was holding an office by virtue of which she was authorised to perform any public duty, she cannot be a public servant. That principle cannot be made applicable to the case of respondents 2 and 3.
21. It is not disputed that respondents 2 and 3 are holding the offices of the Secretary and President of Kerala Cricket Association respectively. In their capacity as Secretary and President they are authorised and required to perform their duties. When the Kerala Cricket Association is having the monopoly of regulating cricket in Kerala including selection of cricket team for the State, controlling the activities of the players and others involved in the game, the duties authorised or required to be performed by the President and Secretary are public duties, they cannot be heard to contend that they are not performing those public duties as authorised or required by virtue of the office they are holding. Thus when the duties to be performed by the President and Secretary of the Kerala Cricket Association, by virtue of the office they are occupying eventhough Kerala Cricket Association is a society registered under the Travancore Cochin, Literary, Scientific and Charitable Societies Registration Act, 1955, it cannot be equated with the acts voluntarily performed by an individual who runs a coaching centre. Both are distinct and different. Though the public may have interest in the acts performed by a person who is running a coaching centre, he is not performing the said act by virtue of any office held by him. He is not performing it either as authorised or as required by virtue of any office. When respondents 2 and 3 are the office bearers of the Cricket Association and the duties to be performed by them are either as authorised or required by virtue of that office,they would definitely be public duties, if the public or the community at large has an interest in it.
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