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2014 DIGILAW 1747 (BOM)

Gerald A. Fernandez v. Bandra Gymkhana

2014-08-06

S.C.GUPTE

body2014
JUDGMENT P.C. The Notice of Motion is taken out by the Plaintiff/Applicant praying for stay of an expulsion order. The Plaintiff is a member of Defendant No.1 gymkhana. By the impugned expulsion order, the Plaintiff was expelled from the membership of Defendant No.1. The expulsion order is challenged in the present suit. 2. The Plaintiff is a senior citizen of 64 years and has been a member of the first Defendant gymkhana over the last 40 years. It is the Plaintiff's case that the Plaintiff has been victimized by the Defendants for raising his voice and objecting to the violations of the Rule Book by the members of the managing committee. It appears that on 29 March 2012, after the Plaintiff's complaint in respect of certain violations in respect of guests to the club, who were allowed entry in the card room without paying guest fees, the Plaintiff was given a show cause notice on 29 March 2012 calling upon the Plaintiff to explain why no action should be taken against the Plaintiff for infraction of Rule 14 of the Club Rules for his alleged action in respect of the entry of 18 guests allowed into the Gymkhana. The Plaintiff submitted his explanation in response to the show cause notice. It appears that the show cause notice and the explanation of the Plaintiff were referred to a disciplinary committee of Defendant No.1 gymkhana. The disciplinary committee gave its recommendations to the managing committee. The managing committee of the gymkhana in its meeting held on 7 March 2013 passed a resolution expelling the Plaintiff from the gymkhana and revoked his membership. Pursuant to the expulsion order, the Plaintiff made a representation to the managing committee of Defendant No.1 calling upon it to immediately withdraw the expulsion order, accept his membership fees and reinstate him as a member of the gymkhana. This representation was dealt with and replied by Defendant No.1 on 7 December 2013, refusing to accept to the Plaintiff's request for withdrawal of the expulsion order. The Plaintiff thereupon filed the present suit, inter alia, praying for an interim relief of stay of the effect and operation of the expulsion order. 3. The record of the case shows that the Plaintiff was issued a show cause notice for an alleged infraction of Rule 14 of the rules and regulations of Defendant No.1 gymkhana. The Plaintiff thereupon filed the present suit, inter alia, praying for an interim relief of stay of the effect and operation of the expulsion order. 3. The record of the case shows that the Plaintiff was issued a show cause notice for an alleged infraction of Rule 14 of the rules and regulations of Defendant No.1 gymkhana. Rule 14 empowers the managing committee of the gymkhana to take cognizance of the infraction of any of the rules or bye-laws, or of ungentlemanly conduct or action, brought to its notice and take action against the member guilty of such infraction or ungentlemanly conduct or action, as the managing committee may consider likely to endanger the harmony or affect the character or stability of the club. The Plaintiff's explanation in this behalf was considered by a disciplinary committee of the gymkhana which came to a conclusion that there was indeed such an infraction or ungentlemanly conduct or action as would endanger the harmony or affect the character or stability of the club. The disciplinary committee thereupon recommended an action under Rule 14 against the Plaintiff. By the time, the managing committee considered the inquiry report and recommendations of the disciplinary committee, the earlier managing committee which had instituted the inquiry had changed and a new managing committee of gymkhana took its place. This managing committee proceeded to consider the report of the disciplinary committee and passed an order of expulsion. 4. It is submitted by the learned Counsel for the Plaintiff that whilst the new managing committee considered the report of the disciplinary committee finding an infraction under Rule 14 and ordered expulsion of the Plaintiff, no opportunity was given to the Plaintiff to offer an explanation or tender his resignation from the gymkhana. It is submitted that Rule 14 requires a notice of the special meeting to be called for the purpose of expulsion of a member and an opportunity to be given to such member inter alia to offer his explanation. It is submitted that the managing committee is bound to consider such explanation and only in the event the managing committee is not satisfied with the explanation offered, the Committee is entitled to proceed with the expulsion. It is submitted that this rule was breached by the managing committee at the time of the expulsion complained of, in the present suit. 5. It is submitted that this rule was breached by the managing committee at the time of the expulsion complained of, in the present suit. 5. On the other hand, it is submitted by the Defendants that the opportunity given to the Plaintiff to offer his explanation, when the disciplinary committee of the club considered whether or not there was an infraction or ungentlemanly conduct or action on the part of the Plaintiff in breach of Rule 14 as would warrant an action under that Rule, is itself a sufficient opportunity to offer explanation within the meaning of Rule 14. Learned Counsel relies upon the judgment of the Supreme Court in the case of T.P. Daver vs. Lodge Victoria No.363, S.C. Belgaum [ AIR 1963 SC 1144 (V 50 C 173)] as also the judgments of our Court in the cases of Ravi Kiran Aggarwal vs. Matadin Kejriwal [ 2012(2) Mh.L.J. 27 ], Bandra Gymkhana vs. Cyril L. Vas [Civil Application No.4637/2007 in first Appeal No. 2219/2007 dated 18.10.2007] and Royal Western India Turf club Ltd. vs. Vinayak J. Gaekwad [1006(5) Bom.C.R. 481]. He also relies upon a Full Bench decision of the Orissa High Court in the case of Krishna Chandra Pillai vs. Union of India [AIR 1992 ORISSA 261]. Based on the decisions cited, the learned Counsel submits that this Court ought not to sit in judgment over a decision of a private tribunal, namely, the managing committee of the gymkhana and interfere with the decision. 6. In a leading authority on the point, the Supreme Court in the case of T.P. Daver (supra) laid down the principles concerning interference by a civil court in the matter of expulsion of a member of a club. It was observed by the Supreme Court in that case that the source of power of associations like clubs and lodges to expel their members is the contract on the basis of which they become members. The Supreme Court held that the contractual origin of the rule of expulsion has its corollary in the cognate rule that in expelling a member the conditions laid down in the rules must be strictly complied with. The Supreme Court held that the contractual origin of the rule of expulsion has its corollary in the cognate rule that in expelling a member the conditions laid down in the rules must be strictly complied with. The question whether the doctrine of strict compliance with the rules implies that every minute deviation from the rules, whether substantial or not, would render the act of such body void, would depend upon the nature of the rule infringed, namely, whether it is mandatory or directory, which in turn depends upon the purpose for which it is made and the setting in which it appears. The Supreme Court held that once it is found that the club or the association has acted in accordance with rules having regard to the mandatory or directory nature of the particular rule, as the case may be, a civil court thereafter cannot sit in judgment as a court of appeal from the decision of the body. In other words, the jurisdiction of a civil court to interfere with a decision of a private body like the managing committee of a club or gymkhana is limited only in cases where the body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice. Our Court has followed these principles of law enunciated in the case of T.P. Daver (supra) in the cases cited by the learned Counsel for the Defendants. In the case of Ravi Kiran (supra), the court was concerned with an alleged infraction of a rule of expulsion, which, according to the Plaintiff in that case, required a club to supply to the erring member a copy of the report of a disciplinary committee so as to enable the member to show effective cause against the charges framed by the club for his expulsion. After considering the law laid down in T.P. Daver's case (supra), our Court observed that so far as non-supply of copy of the report was concerned, the appellant (the expelled member) had not shown as to what prejudice was caused to him due to non-supply of the copy of the report. The Court noted that the statement of charges supplied to the appellant made known the particulars of the charges against the appellant and the appellant had adequate opportunity to deal with such charges. The Court noted that the statement of charges supplied to the appellant made known the particulars of the charges against the appellant and the appellant had adequate opportunity to deal with such charges. The Court observed that it was necessary in the matter of domestic inquiry for a delinquent to show as to what was the prejudice caused to him because of deviation from the rule. It is in that context that this court observed that every deviation from rules or procedure was not liable to be interfered with by the High Court in an action impugning the decision of the domestic tribunal. The approach of the High Court shows nothing but the application of the principles of law laid down in T.P. Daver's case. That principle requires the court to consider in the facts of a particular case whether the rule, infraction of which is complained of, is mandatory or directory. It may be that in a given case, the rule is merely directory and a deviation from such a rule, absent any prejudice shown to have been caused to the delinquent member, may not invite interference of the Court. As held by the Supreme Court in the case of T.P. Daver (supra), whether or not the rule, infringement of which is claimed in the suit, is mandatory or directory depends upon the purpose for which such rule is made and the setting in which the same appears. As we shall observe later, the particular rule, which is nothing but affirmation of the principles of natural justice which are required to be observed in the case of expulsion by Defendant No.1 gymkhana, must be held to be mandatory. 7. In the judgment of Bandra Gymkhana (supra), a learned Single Judge of our Court was concerned with a submission on the part of the delinquent member that the club in question in that case acted dishonestly or in bad faith. This Court after taking into account the law laid down by the Supreme Court in T.P. Daver's case (supra) and analyzing the facts of the case, came to the conclusion that prima facie there was sufficient material on record to hold that the appellant gymkhana had complied with all the formalities. This Court after taking into account the law laid down by the Supreme Court in T.P. Daver's case (supra) and analyzing the facts of the case, came to the conclusion that prima facie there was sufficient material on record to hold that the appellant gymkhana had complied with all the formalities. The Court held that having complied with the requirements of the rule of expulsion, there was no question of interference by a civil court, merely because in similarly situated cases, the appellant gymkhana had taken a different view. Our Court held that the court was not concerned with the actual use of power and/or authority and was not testing the tribunal's power under Article 14 of the Constitution. 8. In the case of Royal Western India Turf Club Limited (supra), the court was concerned with the expulsion of a staff member. It was not a case dealing with the club law or relating to the expulsion of a member. The Court in the context of the expulsion of a staff member in an inquiry held for the purpose by the club, held that the impugned action was taken by the club after a duly conducted inquiry in respect of an act of its subordinate which was not disputed. The court in this context held that granting of an injunction at an interlocutory stage would amount to granting a decree and permitting the respondent staff member to join at the interlocutory stage, when the decision on the suit was yet to be arrived at. That this decision has no application to the facts of the present case. In the present case, as noted below, we are concerned with a serious infraction of a mandatory rule which the defendant gymkhana was bound to observe while taking drastic action of expulsion of its member. 9. The decision of the Full Bench of Orissa High Court in Krishna Chandra Pillai (supra) is rendered under Article 311 of the Constitution and has no application to the facts of the present case. 10. 9. The decision of the Full Bench of Orissa High Court in Krishna Chandra Pillai (supra) is rendered under Article 311 of the Constitution and has no application to the facts of the present case. 10. Rule 14 of the Club Rules, which is invoked in the present case, clearly contemplates two stages: The first consists of the managing committee arriving at a decision as to whether or not the delinquent member of the club is guilty of an infraction of the rules or bye-laws of the club or such ungentlemanly conduct or action as the managing committee would consider likely to endanger the harmony or affect the character or stability of the club. Once such finding is arrived at by the managing committee, the rule gives two options to the managing committee and that is the second stage. The first option is to suspend the member from all or any of the privileges of membership for such period of time and upon such terms as the managing committee may in its absolute discretion think fit. The second option is expelling member from the gymkhana. In the case of the latter option, the managing committee must act at a meeting specially called for the purpose. Secondly, the managing committee must act on the vote of at least 10 members of the managing committee at such meeting. The third requirement is that the managing committee must give the member to be expelled an opportunity to offer an explanation or tender his resignation from the gymkhana. If such explanation is satisfactory, the managing committee is bound to accept the same or accept it upon such terms as the managing committee thinks proper. The managing committee may, in the alternative, accept the resignation offered by the member. It is only if the managing committee is not satisfied with the explanation offered or if such member declines to tender his resignation, the managing committee is entitled to proceed with the expulsion of such member. Obviously, this rule is for the benefit of a delinquent member and affirms the requirement of observing the principles of natural justice before taking a drastic action of expulsion of a member. By its very nature, the requirement of this rule is mandatory. Obviously, this rule is for the benefit of a delinquent member and affirms the requirement of observing the principles of natural justice before taking a drastic action of expulsion of a member. By its very nature, the requirement of this rule is mandatory. It is submitted by the learned Counsel for the Defendants that the rule merely gives power to the managing committee to act in the manner laid down therein and is not in the nature of a requirement to be followed by the managing committee. As held by me above, the very purpose of the rule, with which we are concerned, and the setting in which it appears, make it abundantly clear that the requirement of allowing the member to offer his explanation is a mandatory requirement and the managing committee does not only have the power but a duty to allow the member to offer such explanation. 11. Having regard to the nature of the rule, infraction of which on the part of the Defendants is alleged by the Plaintiff, the Court is satisfied that the Plaintiff has made out a clear prima facie case of illegality of the expulsion order. 12. Considering the fact that the Plaintiff is a senior citizen of 64 years of age and also considering the fact that he has been a member of the club for 40 years, the balance of convenience would certainly weigh in favour of the Plaintiff. During the pendency of the suit, if the order of expulsion, which is, as noted above, found to be clearly in violation of the rule relating to expulsion, is allowed to continue, the Plaintiff would be deprived of the privileges of membership at this advanced age and may not see the revocation of the expulsion order. 13. In view of the fact that interim relief is being granted to the Plaintiff on the ground that the expulsion order was passed without offering an opportunity to the Plaintiff to explain his conduct and also having regard to the fact that the Court has not gone into the merits of the decision of the managing committee even from the point of view of alleged malafides or otherwise, the managing committee of Defendant No.1 gymkhana will be at liberty to consider the report of the disciplinary committee afresh after allowing the Plaintiff to submit an explanation for any action under Rule 14. All contentions of the parties in this behalf are kept open. 14. In these premises, the Notice of Motion is made absolute in terms of prayer clause (a), subject to the clarification noted above. There shall be no order as to costs. 15. Defendant No.1 is directed to forthwith return the membership card of the Plaintiff to enable the Plaintiff to avail all the privileges of membership. 16. The application of the learned Counsel for the Defendants for stay of this order is refused.