Jwala Gutta vs Department Of Sports & Anr.
2013 Latest Caselaw 4723 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of Decision: 10.10.2013

+                              W.P.(C) No.6503 of 2013

JWALA GUTTA                                               ..... Petitioner
                          Through:    Mr. Gopal Jain, Ms. Bina Gupta and
                                      Mr. Abhay Anand Jena, Advs. with
                                      petitioner in person

                                       versus

DEPARTMENT OF SPORTS & ANR.             ..... Respondents
            Through: Mr. Shanti Bhushan, Sr. Adv. with
                      Mr. Rohit Singh, Mr. Alok Sarna and
                      Mr. Kartik Seth, Advs. for R-2.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                     JUDGMENT

V.K.JAIN, J. (ORAL)

CM No.14146/2013 (Exemption) Allowed subject to just exceptions.

WP (C) No.6503/2013 Issue notice.

Mr. Rohit Singh, Advocate accepts notice for respondent No.2. Notice be issued to respondent No.1.

Counter affidavit be filed within two (2) weeks. Rejoinder be filed within a week thereafter.

List for hearing on 12.11.2013.

CM No.14145/2013 (Stay) Issue notice.

The petitioner before this Court is a well known Badminton player. The Indian Badminton League is a franchise of respondent No.2 Badminton Association of India which, in turn has six franchises representing six different cities of India. The petitioner was captain of Delhi franchise given the title `Delhi Smashers‟. A match between `Delhi Smashers‟ and another franchise team, namely, `Banga Beats‟ was scheduled to be held at 8.00 p.m. on 25.8.2013 and four players were to be nominated by each franchise, to play in the said match. The case of the petitioner is that about 40 minutes before the match was to commence, the Chief Referee disclosed to them that `Banga Beats‟ had replaced one of their nominated team member Hu Yun by another player Jan Jogersan. The petitioner protested against the aforesaid change on the ground that it was violative of the Rules & Regulations. As a result of the aforesaid protest, `Banga Beats‟ decided to replace Hu Yun by another team member and ultimately the match was won by `Delhi Smashers‟.

2. On 1.9.2013, the name of the petitioner was withdrawn by respondent No.2/Badminton Association of India from a tournament in Japan. This was followed by a notice dated 4.9.2013 to the petitioner.

The said notice, to the extent it is relevant, reads as under:- "Whereas it has been decided by the BAI in its meeting dated 31st August 2013 to initiate disciplinary proceedings against Miss Jwala Gutta for her alleged involvement leading to the delayed start of the IBL tie between the Krrish Delhi Smashers and Banga Beats played at Bangalore on 25th August 2013, thereby severely denting the image and prestige of the Tournament, the IBL and the BAI in front of the international,

National and Domestic viewers as well as the International Broadcasters Whereas the referee of the Tournament Sri Girish Natu has submitted his report on the fiasco to IBL Governing Council implicating Miss Jwala Gutta as instrumental for coercing her team members for uncalled for indiscipline putting the entire game of Badminton in India to shame in front of the whole world. Whereas the referee further reports that Miss Jwala Gutta resorted to long, heated and at times offensive arguments with the Governing Council Members present on the scene, who were trying to diffuse the situation. Whereas the referee further reports that the stand of Miss Jwala Gutta has caused harm to the spirit and interest of the tournament Whereas the referee further reports that Miss Jwala Gutta had failed to maintain the stature of the tournament, discipline and respect to the rules, thereby imposing unwarranted hardship to the TV viewers, spectators and all others concerned Whereas Mr Sai Praneeth, player of Krrish Delhi Smashers was compelled and prevented by Miss Jwala Gutta from playing in the tie even though he was prepared to enter the court to start the tie, thereby intentionally causing disruption to the timely start of the tie resulting in severe consequences to the prestige of the tournament thus proving her purposeful motives in disrupting the tie and the tournament Now, therefore Miss Jwala Gutta is, hereby, called upon to submit her written statement of explanation within 14 days from the date of receipt of this memo, failing which, it will be presumed that she has nothing to offer in explanation and action as deemed fit will be taken against her."

The petitioner responded to the aforesaid show cause notice, vide e-mails dated 11.9.2013 and 14.9.2013 stating, inter alia, as under:-

"2......Please appreciate that any changes with respect to the opponent team‟s composition at the last minute causes confusion, anxiousness and unrest within the team since the entire preparation and team strategy is based on the competence and capabilities of each member of the other side‟s team.

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5. .....The change made by Banga Beats was clearly in violation of the rules and regulations of IBL. The allegations of "coercion" are very serious and I strongly deny the same. The delay, if any, in the game occurred owing to time taken by the Governing Council and the team owners in addressing the issue, which involved a patent violation of the rules and regulations of IBL.

6. ......I did not have any arguments, as alleged in your mail, with the Governing Council. The delay, therefore caused to the match, was owing to an attempt made by Banga Beats to violate the IBL rules and regulations and later retracting from it since not allowed by the Governing Council. It is submitted that as an international player and following the ethics of the game, a breach of IBL rules and regulations was highlighted well in advance to the team owners and with their intervention such breach was prevented to be implemented. Such intervention and joint efforts clearly brought pride and prestige to the tournament."

3. The Disciplinary Committee of Badminton Association of India, after considering the show cause notice issued to the petitioner and her reply thereto, submitted a report stating therein, inter alia, as under:-

"...In the instant case she herself admits that she has been in the forefront of all the incidents that took place on the scene causing irreparable damage to the spirit and prestige of the game. Had not wiser counsel prevailed the IBL and the game of Badminton would have been put to great shame before the viewers of the world and the international Broadcasters. Her actions were of such serious and damaging consequences that a further delay by another ½ hour would have meant that the entire game of Badminton in the country, the BAI, and the IBL would have been brought to such disrepute before the entire world that the prestige of BAI and IBL would have been dented beyond repair and all the agencies of Badminton in the country would have been made laughing stock in front of the whole world."

xxxx xxxx xxxx xxxx xxxx

"The Disciplinary Committee expected her to be apologetic in the minimum. But unfortunately instead of being sorry for the unwarranted behaviour, she had grown more aggressive and strident in her attitude, as the explanation submitted by her is sufficient proof of that."

"Under the above circumstances, the Disciplinary Committee, after thorough and threadbare examination and careful consideration of the entire issue placed before it, is of the unanimous opinion that Ms Jwala Gutta cannot exonerate herself from the unsavoury incidents that occurred that would have caused irreparable damage to the prestige of the IBL. She had no regrets for the indiscipline caused by her."

xxxx xxxx xxxx xxxx xxxx

"Under these circumstances, the members of the Disciplinary Committee are of the unanimous opinion that the explanation submitted by her is totally unsatisfactory, calling for severe action. The Committee, therefore unanimously recommends that any of the following punishments be imposed upon the grossly erring Ms.Jwala Gutta:

1. Life time ban from all games organized by BAI and its subordinate units.

2. Six year suspension from all Badminton activities in the country

However in the event of her submitting an unconditional apology to the Hon. President BAI, the Hon. President BAI, taking a lenient view on humanitarian considerations, may consider relaxation of the punishment to the extent deemed fit by him."

4. Pursuant to the aforesaid report, the impugned communication dated 7.10.2013 was sent by the Honorary Secretary of respondent No.2 to the petitioner informing that a three-Member Committee had been

constituted for issuing a further show cause notice to her for seeking her reply on the punishment proposed and after an opportunity for hearing, including the personal hearing if so requested, in order to take final decision on the proposed punishment. She was also informed that till submission of the report in this regard by the aforesaid Committee, her name shall not be considered by the Selection Committee for participation in any international tournament, inside or outside India.

Being aggrieved from the aforesaid decision, the petitioner is before this Court by way of this writ petition.

5. The first contention of the learned counsel for the petitioner is that since the incident in question happened during an IBL League match, any action against the petitioner for the misconduct attributed to her could be taken only in terms of the Rules & Regulations of IBL. The learned counsel further submits that IBL Players‟ Code of Conduct applies to IBL and the players participating therein and as provided in Clause 2.2 of the said Code all Players are subject to the Code and IBL Laws of Badminton. A perusal of Clause 4 of IBL Players‟ Code of Conduct would show that „Players‟ on site offences‟ include inappropriate conduct during any match or at any time while within the precincts of the site of IBL and not conducting oneself in an honourable and sportsmanship like manner. Clause 5.1 of the aforesaid Code provides that if a player has at any time behaved in a manner severely damaging to the reputation of the sport, that player may be deemed by virtue of such behavior to have engaged in conduct contrary to the integrity of the game of Badminton.

6. The learned senior counsel appearing for respondent No.2, on the other hand, submits that action against the petitioner can be taken by the

Executive Committee of the Association as well as its President/Secretary in terms of Memorandum of Badminton Association of India. Reliance, in this regard, was placed upon clause 18 of the aforesaid Memorandum. The aforesaid Clause to the extent it is relevant reads as under:

"18. Suspension or Expulsion

If an affiliated unit, associate member or official directly or indirectly connected with the Association refuses or neglects to comply with any provision of the Rules or is guilty of such conduct as the Executive Committee deem likely to affect the character of stability or interest or the Association, such official or affiliated unit or associate member shall be liable for expulsion or suspension...."

In respect of players, the Executive Committee shall be competent to take action by bare majority after calling for an explanation. Pending enquiry, interim action can be taken by President/ Secretary."

It would, thus, be seen that the aforesaid Clause would apply only where an official refuses or neglects to comply with the Rules of Badminton Association of India or is accused of conduct which is likely to affect the character or stability or interest of the Association. The expression "official" has been defined in Clause 7 (viii) to include office bearers, members of the Executive Committee, Umpires, Coaches, Managers and any person(s) assigned with specific official responsibilities. A player, therefore, is not included in the aforesaid expression. Moreover, this is not the case of respondent No.2 in the show cause notice that the petitioner refused or neglected to comply with any specific rule of the said respondent. As regards second part of

the aforesaid Clause, even if a player is deemed to be an official the misconduct attributed to the petitioner, in my view, cannot be said to be a conduct likely to affect the character or stability or interest of respondent No.2/Badminton Association of India. In fact, even in the show cause notice, issued to the petitioner this was not the case of respondent No.2 that the act committed by her (petitioner) was likely to affect the character or stability or interest of the Badminton Association of India. Therefore, prima facie, it appears to me that Clause 18 of the Memorandum would not apply and consequently the proceedings initiated by respondent No.2 cannot be sanctified under the aforesaid Memorandum.

7. Respondent No.2 has not placed on record any other Rule or Regulation with respect to disciplinary action against the players for a misconduct committed by him/her. In the absence of any such Rules & Regulations it is not possible for the Court to ascertain as to who was competent to initiate disciplinary action against the petitioner, what was the procedure required to be followed for taking such an action and what are the penalties which can be imposed upon a player found guilty of misconduct of the nature attributed to the petitioner. Therefore, prima facie, the action initiated against the petitioner could not have been initiated under Clause 18 of the said Memorandum. The impugned communication dated 7.10.2013, therefore, needs to be stayed on this ground alone.

8. As noted earlier, the Disciplinary Committee recommended that in the event of the petitioner submitting an unconditional apology to the President of the Badminton Association of India, it may take a lenient view and consider relaxation of the punishment proposed by the

Committee. The respondent No.2 is yet to take a final decision with respect to the punishment it deems appropriate to be awarded to the petitioner. In case the petitioner chooses to apologize as recommended by the Disciplinary Committee, respondent No.2 may take a lenient view and may let off the petitioner with a milder punishment such as fine, warning, caution or reprimand. In fact, the emphasis in the report of the Disciplinary Committee appears to be more on the refusal of the petitioner to apologize and less on the nature of the misconduct attributed to her. In the absence of a final decision on the penalty to be imposed upon the petitioner, the decision taken by the President/Secretary of respondent No.2 not to consider the petitioner for any national or international tournament inside or outside India would be rather premature. Respondent No.2, in my view, ought to have waited for the final decision on the penalty to be imposed upon the petitioner, instead of taking such an extreme action in the meanwhile.

9. For the reasons stated hereinabove, the impugned communication dated 7.10.2013, to the extent it stipulates that the petitioner will not be considered for participation in any national or international tournament inside or outside India till, submission of the report of the newly constituted Committee, is hereby stayed. During the course of hearing, I was informed that on 9.10.2013, respondent No.2 has sent a communication to the Organizers of Denmark Open Tournament withdrawing the name of the petitioner from the said Tournament. The respondent No.2 is directed to forthwith withdraw the said communication and permit the petitioner to participate in the aforesaid Tournament. Till further orders of the Court, the respondent No.2 shall not withdraw the name of the petitioner from any tournament and shall

duly consider her, subject to her being otherwise eligible, for participation in the national or international tournament, inside or outside India.

The application stands disposed of.

Dasti under the signatures of the Court Master.

OCTOBER 10, 2013                                          V.K. JAIN, J.
ks/b'nesh