Joachim Carvalho vs Union Of India & Ors
2012 Latest Caselaw 964 Del

*                   THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 8422 OF 2011

                                              Reserved on: 07.12.2011
%                                             Pronounced on:13.2.2012

JOACHIM CARVALHO                                     ....PETITIONER
               Through:                 Mr. Jayant Bhushan, Sr. Advocate
                                        with   Mr.    Soumik     Ghosal,
                                        Advocate.

                                  VERSUS

UNION OF INDIA & ORS                                . . . RESPONDENTS

Through: Ms. Maneesha Dhir, Advocate with Ms. Mithu Jain, Advocate for UOI.

Mr. Sandeep Sethi, Sr. Advocate with Ms. Shyel Trehan, Ms. Pardmita Mukherjee, Advocates for R.2 Mr. D.S. Narula, Sr. Advocate with Ms. Manmeet Arora and Ms. Fareha A. Khan, Advocates for R.4.

Mr. P.V. Kapoor, Sr. Advocate with Mr. Anshu Bhanot, Advocate for R.5.

CORAM:-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE:

1. This petition is filed in public interest by the petitioner who is a

former member of the Indian Hockey Team and an Olympian. The

petitioner claims himself to be a public spirited person. He states that he

was awarded the Arjuna Award for his outstanding achievements as one

of India‟s best captains and has a genuine interest in the future of the

sport of Hockey in India.

2. This petition has been filed on the ground that hockey players of

eminence are being subjected to threats and are being prevented from

participating in a world class hockey tournament being organised in the

country.

3. The respondents impleaded in the present writ petition include the

Union of India through the Ministry of Youth Affairs and Sports

(respondent no.1), Hockey India (respondent no.2), Indian Olympic

Association (respondent no.3) and Nimbus Communication Ltd.

(respondent no.4). Respondent no. 1 is, amongst other, assigned the

role of creating infrastructure and promoting capacity building for broad

basing sports as well as for achieving excellence in various competitive

events at the national and international levels. In this regard, it has

introduced the National Sports Development Code of India through a

statutory notification with effect from 31.01.2011 with the objective of

sports development, inter alia, through adoption of good governance

practices by the National Sports Federation. Respondent no.2 is a

Society registered under the Indian laws and established, inter alia, for

promotion of the game of hockey. Respondent no. 3 is a Society

registered under the Indian laws and is the apex body in the field of

Olympic Sports in India. Respondent no. 4 is another National Sports

Federation which is recognized by the Central Government for

management and regulation of hockey in India. Respondent no. 5 is a

company incorporated under the Companies Act, 1956 which is, inter

alia, engaged in the business of sports promotion and event management

in India.

4. The respondent no.1 has derecognized the respondent no.2 as the

National Federation for the Management, Control and Promotion of

Hockey in India and conveyed this decision to the FIH on 06.08.2010.

In its place, the respondent no.4 has been recognized as the National

Sports Federation for Hockey in India by the respondent no.1. However,

FIH continues to recognize the respondent no.2 only. The respondent

no.4 sanctioned a new domestic Hockey event to be organized with a

reputed sports promotion and event management company. Indian

hockey players with varying domestic and international experience

entered into contracts with the company for a 3 years‟ period to

participate in this domestic event sanctioned by the respondent no.4.

Many players want to participate in these competitions.

5. Some restrictions, however, are put by the respondent no.2 in the

way of hockey players to participate in the aforesaid hockey events

contemplated by the respondent no.4. It would be pertinent to mention

here that though the respondent no.2 stands derecognized by the

respondent no.1 and even this decision is conveyed to FIH, currently it is

only the respondent no.2 which is recognized by the FIH as a National

Association admitted into the membership of the FIH as the Government

Body for India. Therefor, insofar as in the national events are

concerned, the FIH recognizes the respondents no.2 and not the

respondent no.4. The FIH has also introduced new bye-laws in respect of

its own functioning as well as that of its member National Association,

under the shelter of these bye laws respondent no.2 enacted a code of

conduct adopting the principles forming the basis of the FIH bye-laws

and providing for disciplinary action against Indian players who

participate in domestic events which are not sanctioned by respondent

no.2. Respondent no.2 in exercise of its functions as the member of the

FIH has refused to grant sanction in favour of this event. Consequently,

the players who have signed the contracts with the sports promoter are

faced with the threat of disciplinary action and a potential denial of the

opportunity to represent India at international hockey events in terms of

the Code of Conduct introduced by Respondent no.2.

6. By this petition, the petitioner is challenging the decision of the

respondent no.2 to give effect to the "Code of Conduct For all Players in

Domestic/International Competitions" (hereinafter referred to as the

"Code of Conduct") under which Indian Hockey players including the

petitioner would be made subject to the disciplinary action by respondent

no.2 and denied the opportunity to represent India at International

Hockey events if the said players participated in any event which is not

sanctioned by respondent no.2.

7. Now we proceed to take note of the events in some detail which

led to this litigation between the two federations.

8. Pursuant to the unification of the respondent no. 4 and the Indian

Women‟s Hockey Federation to form the India Hockey Confederation

(hereinafter referred to as "IHC") on 04.11.2000, the FIH approved the

formation and constitution of IHC for the governance of the game in

India.

9. Since 2001, all matters concerning hockey in India were

administered by the IHC which conducted International events with the

approval of the FIH. Citing several reasons, which included the mis-

governance accountable to the respondent no.4, the Executive Council of

the respondent no.3 suspended the respondent no.4 by a resolution dated

28.04.2008, from its position as a National Sports Federation under the

guidelines for assistance to National Sports Federation, 2001. It was

intimated to respondent no.4 and all its state units that respondent no.4

was suspended with immediate effect and that respondent no. 3 was to

form an Ad-hoc Committee of five members to administer and manage

the affairs of respondent no.4 till all issues relating to its governance

were finally resolved.

10. The respondent no.4 filed Writ Petition (Civil) No.3713/2008 in

this Court on 13.05.2008 against its suspension by the Executive

Council of respondent no.3, and later against the suspension ordered by

respondent no.1 vide letter dated 12.05.2005. During the pendency of

this Writ Petition, respondent no.3 disaffiliated the respondent no.4 as

the National Sports Federation for Hockey in India on 10.05.2009, and

the ad-hoc committee appointed by the Executive Council of respondent

no.3 was dissolved and disbanded.

11. On 20.05.2009, respondent no.2 was registered as a new society,

and was given provisional affiliation on 28.05.2009. The respondent

no.1 also granted recognition to the respondent no.2 pursuant to the

affiliation by the respondent no.3.

12. By order dated 21.05.2010, the suspension and disaffiliation of

respondent no.4 by the respondents no.1 and.3 were quashed by this

Court. It was held:

" This court believes that even now it is not too late for the MYAS to get its act together and set things in order with the cooperation of both the IHF and the IOA and any other body that may have been set up. Instead of again panicking about the revival of the IHF, it requires to be seen how the interests of hockey in India can be best served. Sports bodies have to have a degree of autonomy with the government playing the role of an effective regulator. They must be allowed to function in a democratic manner with persons really interested in developing the game participating in its affairs. The knee-jerk reaction to losses at international events, which are inevitable in competitive events, and looking for persons to blame, cannot be conducive to a healthy development of any national sport. For a proper enquiry into the problems besetting Indian hockey the cloud of „suspension‟ over the IHF should be lifted. The past should be put behind and new

beginning made. The submission made by Mr. Harish Malhotra that IHF;s suspension should continue is accordingly rejected.

For the aforementioned reasons the decision dated 28th April, 2008 of the IOA placing the IHF under suspension and the decision dated 10th May, 2009 of the IOA disaffiliating the IHF are hereby quashed. The decision dated 12th May, 2008 passed by the MYAS temporarily withdrawing the recognition of the IHF and the subsequent order dated 10th/11th August 2009 passed by the MYAS derecognizing the IHF are also hereby quashed."

13. Respondent no.1 addressed letter dated 27.07.2010 to the office

bearers of the respondents no.2, 3 and 4 issuing a clarification in light of

the decision of this Court on 21.05.2010. It was stated in this letter that

there were two recognized National Sports Federations, only one of

which, namely, Respondent no.2 enjoyed the support of FIH. In view of

the same, the Respondent no. 1 undertook to comply with the directions

of this Court and to resolve the matter in the best interest of hockey in

the country.

14. By a speaking order dated 05.08.2010, respondent no.1

derecognized respondent no.2 as the National Sports Federation for the

management, control and promotion of hockey in India, in the light of

the judgment dated 21.05.2010 of this court in Writ Petition (Civil)

No.3713/2008. The respondent no.1 addressed a letter dated 06.08.2010

to FIH informing them about the development as regards the restoration

of the status of respondent no.4 as the National Sports Federation for

Hockey in India, and the consequent de-recognition of respondent no.2,

with the request to not assign any international tournament or have any

commercial dealings with respondent no.2 thereafter. The Respondent

no.2 challenged the aforementioned letters dated 05.08.2010 and

06.08.2010 before the Supreme Court in a Writ Petition under Article 32

of the Constitution of India. The matter is still pending adjudication.

However, certain interim arrangements were permitted at the request of

respondent no.2 by the Supreme Court while keeping in view the

urgency in certain situations. Some of these orders are as under:-

(a) Order dated 17th August, 2010 whereby the Apex Court took note of the fact that FIH had recognized the respondent no.2 Hockey India and team selected by it alone would be permitted to participate and in view thereof , following directions were given:-

"In the circumstances, pending further orders, we permit the petitioner (hockey India) and the second respondent (IOA) to finalise the Women Hockey Team for participation in the World Cup and take all necessary steps in that behalf for sending the team so that participation of Indian Team in the World Cup is assured.

(b) Order dated 27th August, 2010 wherein the Supreme Court considered the question who will field the Men‟s Hockey Team and Women‟s Hockey Team in the Commonwealth Games to be held in October, 2010 in New Delhi. The Court again permitted the Olympics Association to field the team in collaboration with the Hockey India/respondent no.2.

(c) Orders dated 22nd October, 2010 which was passed for making arrangement in regard to participation of the hockey teams in the Asian Games which was held in China in November, 2010. In this order the Hockey India (R.2), Indian Hockey Federation (R.4) and Indian Olympic Association were directed to held discussion with Sports Ministry and sort out the matter.

(d) Orders dated 11th March, 2011 directing that interim orders dated 27th August, 2010 would apply in regard to participation of the hockey teams in future games as well which would mean permitting the respondent no.2 to select the team and send the team in international squad.

(e) Orders dated 8th April, 2011 whereby leave is granted and while expediting the hearing, ad-interim orders are directed to continue till further orders.

To sum up, the effect of the aforesaid orders of the Supreme Court

is that insofar as international events are concerned, authority is given to

respondent no.2 to select Indian team and send the same since it is

respondent no.2 which is recognized by FIH.

15. In December, 2010, the respondent no.5, a reputed sports

promoter and event manager launched "Worlds Sports Hockey"

(hereinafter referred to as the "said domestic event") with the sanction of

the respondent no.4. the respondent no. 5 was to underwrite the entire

cost of the said domestic event and was to pay the respondent no.4 an

annual fee of Rs 30 crores for the development of Hockey in India. It is

pertinent to note that the said domestic event was the first of a financially

sustaining hockey event in India.

16. One of the most welcome features of the said domestic event was

that the earnings of the players participating in the event were stipulated

under the contract, which also guaranteed a minimum payment along

with income from endorsements and performance incentives available to

the players.

17. The respondent no.5 entered into three-year agreements with over

140 Indian hockey players to participate in the said domestic event.

Under the terms of the agreement, the contracting player is required to

perform his services exclusively during the period beginning from the

date of signing of the agreement till 30.04.2014, and this exclusivity

condition was made applicable where the contracting party was playing

for his national team, or in test matches for his international team.

18. Once these players signed the agreement with the respondent no.5

for participating in the aforesaid domestic event, they come under threat

insofar as their participation in international events is concerned. As

pointed out above, the respondent no. 2 has enacted

Code of Conduct as per which disciplinary action can be taken against

any Indian player who participate in domestic event which is not

sanctioned by the respondent no.2. The relevant clause of the said Code

of Conduct are as under:-

"HOCKEY INDIA CODE OF CONDUCT FOR ALL PLAYERS IN DOMESTIC/INTERNATIONAL COMPETITIONS

All the Players must adhere to the following in Domestic competitions:-

1.Participate only in sanctioned events of Hockey India including age group teams from Under-16 upto Masters as per FIH bye laws dated 11 March, 2011.

(A sanctioned event means any domestic event organized or sanctioned by the relevant Continental Federation and/ or National Association (hockey India) and/or the FIH)

As per the FIH bye laws, an event is any indoor or outdoor Hockey match, tournament, competition or other event, at whatever level played, whether international, continental, national or local and including age-group events such as "masters" events.

2.Disciplinary action shall be taken against the players who participated in any event which is not sanctioned by Hockey India.

3. Obtain NO OBJECTION CERTIFICATE from Hockey India before playing for any foreign team/club etc. xxxxxx

BREACHES OF CODE AND SANCTIONS

 Breaches of the Code of Conduct shall be dealt with in the first instance by the Team Manager whilst away by investigating and instigating appropriate interim measures.

 The Team Manager is required to keep a contemporaneous note of any incident and report to HOCKEY INDIA at the most appropriate opportunity and certainly no later than through the medium of the Post Event Report.

 HOCKEY INDIA shall take further action as is deemed necessary.

 In the case of a serious breach whilst away at an event, this could mean being asked to leave the competition and/or the country in which the event is being held.

 A breach of this Code of Conduct could affect whether or not HOCKEY INDIA invite you to represent Indian game.

19. We would also like to reproduce Bye-Law to Article 5 which

deals with "sanctioned and unsanctioned events". The relevant portion

of the said Regulations is as follows:-

"A. Introduction

1. These regulations have been adopted in recognition of the following fundamental sporting imperatives:

1.1 The governance of the sport of Hockey, like most other sports, is organized in a pyramid structure, with the FIH as the sole and exclusive international governing body, one Continental Federation recognized as the sole and exclusive governing body for each continent and one national Association (HOCKEY INDIA) recognized and admitted into membership of the FIH as the sole and exclusive national governing body for each country where the sport is played.

xxxxx

1.3 Unsanctioned Events threaten to undermine these fundamental sporting imperatives;

xxxxx

2. In order to further the aforementioned fundamental sporting imperatives, these regulations:

2.1 confirm the right of the FIH, the Continental Federations and the National Associations to maintain and control the official sporting calendar of International Events and Domestic Events;

2.2 confirm the primacy of national representative competition over other types of competition by requiring an Athlete to obtain a No- Objection Certificate from the Home National Association, confirming that it has no objection to his participation in an Event organized or sanctioned by another National Association, as a condition of participation in such Event and

2.3 require a National Association

a. not to participate in Unsanctioned Events;

b. to prohibit participation by Athletes and other organizations and individuals under its jurisdiction in Unsanctioned Events and c. not to permit an Athlete from another National Association to participate in an Event that it organizes or sanctions unless he has first obtained a No- Objection Certificate from his Home National Association confirming that it has no objection to his participation in such Event.

xxxxx

4. These regulations come into force immediately and National Associations must implement them by 31 st March, 2011 (the Effective Date). The prohibitions will apply to all Events taking place after that date, but they shall not have retrospective effect, and therefore, no action will be taken under these regulations or any National Association‟s implementing regulations against any National Association, organization or individual on account of any legally binding commitment that the national Association, organization or individual made prior to the Effective Date. Instead, the regulations in effect prior to the Effective Date shall apply in respect of any such commitments.

5. For the purpose of these regulations:

        5.1              xxxxx
        5.2              xxxxx
        5.3              xxxxx

5.4 An International Event is an Event in which National Representative Teams compete. It includes (without limitation) Events staged as part of a multi-sport event as the Olympic Games.

        5.5              xxxxx
        5.6              xxxxx

        5.7 A Sanctioned Event is:

a. any International Event organized or sanctioned by the relevant Continental Federations) and/or the FIH in accordance clause B.1 below; and

b. any Domestic Event organized or sanctioned by the relevant Continental Federation(s) and/or National Association(s) (HOCKEY INDIA) and/or the FIH in accordance with clause B.2 below.

5.8 An Unsanctioned Event is any Event that is not a Sanctioned Event.

B. Procedures for Sanctioning a particular Event.

1. xxxxx

2. Sanctioning of the Domestic Events

2.1 Where a proposed Domestic Event would be open only to teams in membership of or affiliated to one National Association 9HOCKEY India), and would be staged entirely within that National Association‟s territory, then in order for that event to be organized as a Sanctioned Event it must be organized or sanctioned by that National Association (HOCKEY INDIA)

2.2 Where a proposed Domestic Event would be open to more than one National Association‟s teams and/or Athletes, and/or would be staged by one national Association in another national Association‟s territory or in more than one National Association‟s territory, then in order for that event to be recognized as a Sanctioned Event:

a. If the event is open only to teams and/or Athletes in membership of or affiliated to National Associations within one Continental Federation, and the event would be staged entirely within that continent, then it must be sanctioned by that Continental Federation; while

b. if the event is open to teams and/or Athletes in membership of or affiliated to National Associations from different Continental Federations, and/or it would be staged (in whole or in part) outside of the team‟s continent, it must be sanctioned by the relevant Continental Federations, and by the FIH.

20. According to the respondent no.2 this Code of Conduct is the by-

product of the Code of Conduct prescribed by FIH and the respondent

no.2 has no option but to adhere to the FIH mandate. Otherwise, the FIH

may even bar the entry of India in the International events.

21. It is a piquant position that emerges at two levels. At first level,

the situation is that though the respondent no.1 i.e. Union of India has

derecognized the respondent no.2 and in its place has given recognition

to respondent no.4, insofar as FIH is concerned, it has not accepted this

decision of the respondent no.1. As per the FIH, the respondent no.2

currently stands recognized. The FIH is the controlling body of

International events and all participating countries have to conform and

subscribe to the rules made by FIH for participating countries.

Furthermore, having regard to the interim orders passed by the Apex

Court, insofar as International events are concerned, as of now, the

respondent no.2 is the body which represents India. Therefore, when

question of selecting National Hockey Team for participating in

International events arises, it is the respondent no.2 which is to play

dominant and exclusive role and send teams to such international

events. While doing so, the respondent no. 2 is also supposed to ensure

that the rules and regulations as well as Code of Conduct of FIH is

respected and followed. Once, this is kept in mind, it becomes difficult

for the players to participate in the domestic events proposed to be

organized by the respondent no.4 and 5 as that may debar such players

from participating in international competition.

22. At other level, the laudable object behind organizing such

domestic hockey event which respondents no.4 & 5 want to organize,

cannot be undermined. By participating in these events, the hockey

players would be able to make a respectful earning which has eluded the

hockey players of this country till now. It may attract more youngsters

to the game of hockey, who at present are driven to other sports as

greener pastures. This may also sound well for the future of the game of

hockey in this country and the event may serve a public purpose. Thus,

not only new domestic hockey events to be organized by the respondent

no.4, with a reputed sport promotion and event management company,

may prove to be a boon for the Indian hockey players, boosting their

morale and securing them financially, but there are also good chances

of it lending valuable support to the promotion and up-liftment of the

game of hockey in this country and to regain its past glory.

23. This conflicting scenario at the aforesaid two levels poses a

difficult problem, solution whereof is not easy. If these players

participate in the domestic events, their participation in the international

events is threatened. If they do not participate in the proposed domestic

hockey events planned by the respondent no.4 that may not be good for

the sport of hockey in the country. One cause of this unfortunate

scenario is the fight between the respondent no.2 on the one hand and the

respondent no.4 on the other. Before we ponder over the issue and find

the solution, we would like to make certain observations on the basis of

arguments advanced by the learned counsel for the parties.

24. The FIH had written letter dated 15th March, 2011 referring to the

proposed events. No doubt, in para 3 of this communication, it is stated

that the event known as "World Series Hockey" is not recognized or a

sanctioned event as far as the FIH and its members are concerned, the

main concern expressed in this communication is that the dates of the

events were clashing with period when the players were required for

national representative duty (which included participation in

international events as well as training and preparation for those

events). It was for this reason, the FIH impressed that it had adopted

regulations requiring members not to participate in unsanctioned events

and requiring players to choose whether to participate in sanctioned or

unsanctioned events. At the same time, in para 5.1 it is clarified that the

new regulations would apply in respect of the commitments made after

31st march, 2011. It would mean that new regulations are not applicable

for those commitments which are made prior to 31 st March, 2011. It is in

this context in para 5.2 wherein it is further mentioned by FIH that

players are required to ensure that in their contractual arrangements they

retain the ability to comply with the regulatory requirements of the sport

and not the other way around.

25. Even the Regulations of FIH clarifies that they are coming into

force from 31st March, 2011 and will not have any retrospective effect

and would not affect any legally binding commitment with the national

association, organization or individual as made prior to the aforesaid

effective dates. Minutes of the meeting of Hockey India and Indian

Hockey Federation held on 25th July, 2011 confirm to the same effect as

per which the respondent no.2 Hockey India itself confirm that they

would not impose restrictions on the participation of the players who

were contracted before 1st April, 2011 in the proposed World Series

Hockey league being organized by respondent no.4 (IHF). The only

stipulation made therein was that such commitment should be subject to

training schedule in the national camps and duration for which the

players can be spared for such participation.

26. It has also come on record that the respondent no.2 has already

organized preparatory campus for Olympic Qualifier no.1. The first

camp was to be held from 15th December, 2011 to 6th January, 2012 i.e.

for 23 days, though according to respondent no.2 it was only a fitness

camp. Second camp was from 16th January, 2012 till the Olympic

Qualifiers no.1 i.e. for a period of 40 days which was a skill camp.

27. When the matter is to be looked into in this perspective, according

to us, the problem can be resolved once it is ensured that the domestic

event to be organized by respondent no.4 with respondent no.5 as

sponsor, do not come in conflict with the training schedule prescribed

for international events viz. not only the international competitions but

the training schedule for that as well. Though, originally the respondent

no.4 had scheduled to start the series from 17th December, 2011, which

was somewhat conflicting with the international training schedule,

during the course of arguments it was suggested by counsel for

respondents no.4 and 5 that they will not go ahead with the said domestic

events "World Series Hockey" as per the aforesaid schedule but would

be ready to reschedule the entire event. If the dates are fixed in March,

2012, the apprehension of the FIH can be taken care of as those dates do

not come in conflict with any international event.

28. Keeping in view the boost which this series can give to the game

of hockey in India, thereby not only subserving a larger public interest,

but also benefiting the individual players financially by participating in

this series, we are of the view that endeavour should be made to hold

this domestic event.

29. Since the FIH is not a party nor we have any jurisdiction over the

same, and for this purpose cooperation of FIH is required, we are of the

opinion that the matter can be placed before the FIH in the same

perspective as narrated by us in this judgment. Thus, clarification on this

aspect can be sought from FIH. At the same time, the FIH can be

impressed upon to sanction the event if it is still required, moreso, when

the new dates to be fixed by the organizers are not in any way clashing

with the schedule fixed by the FIH for international events.

30. We may place on record that counsel for the respondent no.2 had

argued that it was a motivated petition filed by the petitioner who had

personal interest in the matter as he was associated with respondents

no.4 & 5. However, having regard the public importance of the issue, it

may not be necessary to go into this aspect.

31. We may also place on record another argument of the learned

counsel for the respondent namely regulations which are framed by the

FIH is based on the decision of the experts and it is also necessary to

have the preparatory camps for Olympic events, if India wants to put a

good show in the said event. There cannot be any quarrel about this

argument. It is for this reason, we have already suggested that the

domestic event can be arranged in such a manner that it does not come

in conflict with preparatory camps or the period when the international

events are going to be held.

32. The writ petition stands disposed of in terms of the observations

made herein above. All pending applications also stand disposed of.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE FEBRUARY 13, 2012 skb