Santhosh Karunakaran vs Ombudsman Cum Ethics Officer
2021 Latest Caselaw 2854 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                      WP(C).No.28478 OF 2020(H)


PETITIONER:

               SANTHOSH KARUNAKARAN,
               FORMER RANJI TROPHY CRICKETER & MEMBER,
               THIRUVANANTHAPURAM,
               DISTRICT CRICKET ASSOCIATION, AGED 45 YEARS, S/O.LATE
               KARUNKARAN PILLAI, CRA 209, SOUPARNIKA,
               CHEMBAKASSERY, THIRUVANANTHAPURAM - 695 008.

               BY ADV. SRI.RAJIT

RESPONDENTS:

      1        OMBUDSMAN CUM ETHICS OFFICER,
               KERALA CRICKET ASSOCIATION,
               REPRESENTED BY SECRETARY,
               JAWAHARLAL NEHRU INTERNATIONL STADIUM, KALOOR,
               ERNAKULAM - 682 017.

      2        KERALA CRICKET ASSOCIATION,
               REP. BY SECRETARY SREEJITH V.NAIR, KCA COMPLEX,
               TC- 24/131(1), SASTHAMKOVIL ROAD, THAIKKAD P.O.,
               THIRUVANANTHAPURAM, KERALA STATE- 680 104.

               BY ADVS. SRI.K.N.ABHILASH, SC
                        SRI.SUNIL NAIR PALAKKAT

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD              ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28478 OF 2020(H)

                                        2

                                 JUDGMENT

The Writ Petition is filed challenging

Exts.P11 and P13 order passed by the Ombudsman

cum Ethics Officer of the Kerala Cricket

Association.

2. The petitioner claims to be a former

Ranji Trophy Cricketer, who continues to be

actively involved in the game of cricket in

various capacities. He along with one

Adv.P.J.Thomas had filed Ext.P1 O.A.No.10/2019

before the 1st respondent seeking the

following reliefs:

"a. Frame a model byelaw to be implemented in all the Districts of the State in terms of the model Byelaw recommended by the Lodha Committee and adopted by the Board of Control for Cricket in India;

b. Direct the Kerala Cricket Association to implement the Byelaw as framed by this Hon'ble Forum in all the District units under the Kerala Cricket Association.

c. Direct the Kerala Cricket Association to conduct elections by ensuring representation WP(C).No.28478 OF 2020(H)

from each district under the Kerala Cricket Association strictly in confirmity with the byelaws framed by this Hon'ble Forum. d. Grant such other reliefs deemed fit to this Hon'ble Ombudsman."

3. It is stated that the Kerala Cricket

Association ('KCA' for short) raised a

preliminary objection with respect to non

joinder of parties and requested for a hearing

on the same. It is stated that as per Ext.P2

order dated 02.08.2019, the 1st respondent

rejected the said objection observing the

following:

"2. If all the District Associations in the State were to be impleaded after notice to them, it may entail unnecessary delay.

Hence, it was suggested to the learned counsel for the KCA that the KCA can give through their websites to all District Associations in the form of the Amended Bye Law of the BCCI (as given by the applicants in this O.A) and the existing Common Bye Law as appended to the former Bye Law of the KCA found in the Blue Book and invite their suggestions/views to be furnished on or WP(C).No.28478 OF 2020(H)

before 16.09.2019 and thereafter, the KCA can submit before this forum in a tabular form incorporating the suggestions/views of the District Associations as also of the KCA so as to enable this Forum to finalise the Model Common Bye Laws uniformly applicable to all District Cricket Associations. Advance copy of the tabular form shall be furnished by the KCA to the applicants before filing the same. Call on 20.09.2019 at 2pm for further hearing."

4. It is stated that on 20.09.2019, it was

adjourned to 30.09.2019 since the counsel for

the KCA was not ready. By another proceedings

Ext.P4 of the very same date, it is stated

that the counsel for the KCA requested for a

fortnight's time to collect the views of the

District Associations and the clubs under them

in view of the forthcoming annual general body

meeting scheduled on 11.10.2019. The case was

thereafter posted to 29.10.2019. While so,

there was a change in the office of the

Ombudsman and the matter was listed thereafter WP(C).No.28478 OF 2020(H)

before the new Ombudsman on 13.02.2020,

25.02.2020 and 10.03.2020 respectively. The

petitioner submits that on 13.02.2020 and on

25.2.2020, the matter was adjourned due to

nonavailability of the counsel for the

petitioner and that on 10.03.2020, the

Ombudsman adjourned the matter in order to

study the file. It is the further case of the

petitioner that the applicant had been sending

reminders thereafter from 25.5.2020 to

28.9.2020 for taking up the matter through

video conferencing as the elections were due

for the District Cricket Associations and the

recommendations of the Lodha Committee were to

be made applicable before that. It is stated

that Exts.P6, P7 and P8 e-mails were sent

requesting for the same and finally as per

Ext.P9 e-mail, the petitioner was informed

from the office of the Ombudsman that the WP(C).No.28478 OF 2020(H)

matter was listed for final hearing on

3.10.2020. The Ombudsman dismissed the O.A on

that day as per Ext.P11 order stating that

petitioners did not take any steps to implead

the affected parties despite directions in the

orders dated 13.02.2020, 25.02.2020 and

10.03.2020. The petitioner has stated the

following in paragraph (ix) of the writ

petition, regarding the hearing held on

03.10.2020:

"(ix) On 03.10.2020, when the matter was taken up through videoconferencing, the Counsel appearing for the Applicant had joined the via the video link at 10:58 AM only to be disconnected/removed from the video link within a minute of the sitting even before the matter was taken up. Soon thereafter, the Ld. Ombudsman proceeded to dismiss the matter stating that it was defective. When the Petitioner protested, he was informed that detailed Order will be communicated later, and the Petitioner was removed from the video link. The Order was communicated to the Petitioner only on 04.10.2020.

After the hearing, the Petitioner herein WP(C).No.28478 OF 2020(H)

wrote a detailed email expressing his shock and surprise over the manner in which hearing was held. xxx"

5. The contention of the petitioner is

that he came to know about the direction to

implead all the District Cricket Associations

in the previous orders only after Ext.P11

order was passed by the Ombudsman on

03.10.2020. It is stated that thereafter he

sent Exts.P12 & P13 e-mails on 19.10.2020 and

28.10.2020, requesting for copy of the

proceedings. Thereupon as per Ext.P14 e-mail

dated 05.11.2020, the Ombudsman informed that

the proceedings cannot be issued since

Original Application is already disposed of

and Ombudsmen is only a persona designata and

not a court of record. The writ petition is

filed challenging the orders Exts.P10 and P11.

Petitioner also points out that the Ombudsman WP(C).No.28478 OF 2020(H)

of Andhra Cricket Association has as per

Ext.P15 order dated 10.11.2020 directed

implementation of the reforms in all the

District Associations and other cricketing

clubs.

6. The 2nd respondent has filed a

preliminary counter affidavit raising

objection to the locus standi of the

petitioner to file the writ petition pointing

out that he is not a member of the 2 nd

respondent or any of its affiliated District

Cricket Associations. It is further stated

that as per Section 22 of the Tranvancore

Cochin Literary, Scientific and Charitable

Societies Registration Act, 1955, when any

amendment is made in the provisions of the

memorandum or the rules and regulations of a

Society, a copy of the resolution effecting

the amendment, certified to be a correct copy WP(C).No.28478 OF 2020(H)

by not less than three members of the

governing body shall be filed with the

Registrar within fourteen days of the General

meeting at which the resolution was passed.

It is stated that the bye law of the 2 nd

respondent was already amended and it was also

registered as per the directions of the

Honourable Supreme Court. It is their further

contention that amendments and repeal shall be

passed and adopted by a ¾th majority of the members present and entitled to vote at a

Special General Meeting of the General body of

the KCA for the purpose or at the Annual

General Body Meeting and such amendment will

not be given effect to without the leave of

the Honourable Supreme Court. It is stated

that the District Cricket Associations, which

are affiliated units of the Kerala Cricket

Association, are governed by a common bye law WP(C).No.28478 OF 2020(H)

adopted by the District Cricket Association in

the year 2006 and the procedure and amendment

of those bye laws is governed by clause 37,

as per which, it can be made only in a General

Body Meeting of the State Association passed

by at least ¾th of its members present and voting. It is stated that clause 37(ii)

provides that proposal for any change in the

rules shall be made by at least ⅓rd of the total number of clubs and must reach the

Honourable Secretary, 15 days before the

General Body Meeting at which they are to be

considered. Such proposals shall be circulated

to the members as part of the agenda of the

meeting with copy to Kerala Cricket

Association. The Kerala Cricket Association is

having the powers to accept, reject or modify

the proposal for amendment and such decision

shall be final and binding. Therefore it is WP(C).No.28478 OF 2020(H)

stated that only members of the Association

can initiate the amendment procedure of the

bye laws and petitioner, who is not a member

of the Association, does not have the locus

standi to file the application. The 2nd

respondent has produced various judgments

based on which, it had amended the bye law in

accordance with the instructions issued by the

Committee of Administrators (CoA) consequent

to the various judgments of the Apex Court. It

is stated that the Committee of Administrators

had as per Ext.R2(8) e-mail dated 14.11.2018

informed the 2nd respondent that it had

complied with all the recommendations in the

Justice R.M.Lodha Commission report. It is

further stated that since the Registrar of

Society refused to register the amended bye

law, the 2nd respondent had approached the

Apex Court in W.P.(C) No.79/2019 and that the WP(C).No.28478 OF 2020(H)

bye law was registered thereafter on the basis

of direction of the Hon'ble Supreme Court in

Ext.R2(9) order dated 14.03.2019 in it to the

Registrar of Society. It is further stated

that election to the Office bearers of KCA and

of the member of the Apex council was

completed under the supervision of the

Committee of Administrators appointed by the

Honorable Supreme court. The election was

conducted on 07.09.2019 and Office Bearers

were elected as per Exts.R2(10) and R2(11)

status report. It is stated that in the O.A

filed by the petitioner, 2nd respondent had

filed Ext.R2(12) preliminary counter,

challenging the maintainability of the said

application. It is stated that this writ

petition is filed suppressing the said fact.

It is further stated that the petitioner did

not take steps for impleading the District WP(C).No.28478 OF 2020(H)

Associations as directed by the 1st

respondent. According to the 2nd respondent,

even now, the matter is pending before the

Honourable Supreme Court.

7. I heard Sri. Rejit, the learned counsel

for the petitioner and Sri. K.N.Abhilash, the

learned Standing Counsel appearing for the 2nd

respondent.

8. It is seen that the petitioner did not

take any steps for impleading the District

Associations even after the 1st respondent

issued a direction on 13.02.2020 and continued

to direct the petitioner since then granting

him further time. The Ombudsman had stated

that the issue as to whether District

Associations' presence was required, was heard

in detail on 20.10.2020 and order was passed

on that day. Ombudsman found that the presence

of the District Association was necessary for WP(C).No.28478 OF 2020(H)

a proper adjudication of the issue arising in

the case. Such an order was passed taking note

of the earlier order passed in the OA, to the

effect that publication in the website would

be sufficient. Ombudsman found that the new

bye law has been brought into effect as per

the direction of Justice R.M.Lodha Commission

report and impleadment of the District

Associations are necessary. Order dated

13.02.2020, reads as follows:

"As per last proceedings it can be seen that the District Associations are not a party and whether they have to be impleaded has to be considered by this Ombudsman and a detailed hearing was ordered. Learned counsel for the applicant submitted before this Forum that the prior byelaw is also dealing with the District Associations.

Surely now, new byelaw has been brought into effect as per the directions of the Lodha Committee, in respect of KCA. The stand of the learned counsel for the applicant is that an earlier order will show that a web site publication of the proceedings by KCA will be sufficient. But WP(C).No.28478 OF 2020(H)

I feel that when the matter goes to the root of the structure of the District Association, direction for issue of notice is necessary. Surely counsel for the applicant also brought to my notice Rule 37(2) of the earlier bye-law. Even after going through the same, I feel that notice is necessary. Notice to the District Associations are necessary as it will materially affect them. Implead the District Associations by the applicant and give notice. Call on 25.2.2020 for consideration of the impleading and issuing notice."

9. When the matter came up on 25.2.2020,

the Ombudsman noticed that no steps were taken

for impleading. On 10.03.2020, the matter was

adjourned to 24.03.2020 directing that

impleading petitions shall be filed positively

before the posting date. The 1st respondent

has dismissed the O.A in the aforesaid

circumstances, when the petitioner refused to

take any steps as directed and insisted for

hearing the matter.

WP(C).No.28478 OF 2020(H)

10. The contention of the petitioner in

this case is that there was no such order

either on 13.02.2020 or on 25.02.2020 or on

10.03.2020. Though there is no reason to

disbelieve the statement in Ext.P11 order of

the Ombudsman, I called for the records from

the Ombudsman and perused the same and found

that no steps were taken by the petitioners in

the O.A to implead the parties despite the

orders passed by the Ombudsman. It is also

relevant to note the following statement of

the Ombudsman in paragraph 3 as to the manner

in which communications were made by the 2nd

petitioner:

"xxx But when the files perused it is seen that no steps taken by the applicants as ordered on 10.3.2020. Under such circumstances, the case was not posted for hearing. Now a letter dated 19.9.2020 received from Advocate P.J.Thomas, the 2nd applicant herein. After going through the letter, it is decided to post the case even WP(C).No.28478 OF 2020(H)

though application is defective. No purpose will be served by hearing a matter where necessary parties are not impleaded. But the letter says as follows: "And decide the matter in OA.10/2019 at the earliest and then proceed with election as a uniform manner failing which we will be initiating Civil and Criminal proceedings against your office corrupt practice." Thus it can be seen that there is no other option, but to post the case. The 2nd applicant is none other than an Advocate. xxx"

Records would reveal that petitioner

has not approached this Court with clean

hands. Redressal of grievance against the

dismissal of an order is not to be sought by

accusing the author of the order raising

baseless allegations. In the circumstances of

the case, Therefore I am of the considered

view that petitioner does not deserve any

relief from this Court under Article 226 of

the Constitution of India. The question of

validity of the subsequent order Ext.P13 also WP(C).No.28478 OF 2020(H)

do not deserve consideration for the very same

reason.

              Accordingly,   the   writ   petition    is

    dismissed.                                 Sd/-

                                            P.V.ASHA
                                              JUDGE

    ww
 WP(C).No.28478 OF 2020(H)



                            APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           A TRUE COPY OF THE ORIGINAL APPLICATION

NO.10/2019 DATED 25/06/2019 FILED BEFORE THE OMBUDSMAN CUM ETHICS OFFICER OF KERALA CRICKET ASSOCIATION.

EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE OMBUDSMAN CUM ETHICS OFFICER OF THE KERALA CRICKET ASSOCIATION IN O.A.NO.10/2019 DATED 02/08/2019.

EXHIBIT P3 A TRUE COPY OF THE ORDER OF THE OMBUDSMAN CUM ETHICS OFFICER OF THE KERALA CRICKET ASSOCIATION IN O.A.NO.10/2019 DATED 20/09/2019.

EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE OMBUDSMAN CUM ETHICS OFFICER OF THE KERALA CRICKET ASSOCIATION IN O.A.NO.10/2019 DATED 20/09/2019.

EXHIBIT P5 A TRUE COPY OF THE AFFIDAVIT FILED BY SH.V.RAMKUMAR, RETD.JUDGE OF THE HON'BLE HIGH COURT OF KERALA DATED 17/10/2019 IN UNNUMBERED WP(C) NO...../2019 (F.NO.51083/2019).

EXHIBIT P6 A TRUE COPY OF THE EMAILS DATED 25/05/2020.

EXHIBIT P7 A TRUE COPY OF THE EMAILS DATED 10/06/2020.

EXHIBIT P8 A TRUE COPY OF THE EMAILS DATED 29/07/2020.

EXHIBIT P9 A TRUE COPY OF THE EMAIL DATED 28/09/2010 ADDRESSED TO THE PETITIONER STATING THAT THE MATTER IS LISTED FOR FINAL HEARING.

EXHIBIT P10 A TRUE COPY OF THE EMAIL DATED 03/10/2020 SENT BY THE PETITIONER TO THE OMBUDSMAN.

EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 03/10/2020 PASSED BY THE LD. OMBUDSMAN CUM ETHICS OFFICER OF THE KERALA CRICKET ASSOCIATION IN O.A.NO.10/2019.

WP(C).No.28478 OF 2020(H)

EXHIBIT P12 A TRUE COPY OF THE EMAIL DATED 19/10/2020 ADDRESSED TO THE OMBUDSMAN REQUESTING FOR COPIES OF PROCEEDINGS.

EXHIBIT P13 A TRUE COPY OF THE EMAIL DATED 28/10/2020 ADDRESSED TO THE OMBUDSMAN REQUESTING FOR COPIES OF PROCEEDINGS.

EXHIBIT P14 A TRUE COPY OF THE EMAIL DATED 05/11/2020 FROM THE OFFICE OF THE OMBUDSMAN ADDRESSED TO THE PETITIONER.

EXHIBIT P15 A TRUE COPY OF THE ORDER DATED 10/11/2020 PASSED OFFICE OF THE OMBUDSMAN, ANDHRA CRICKET ASSOCIATION IN CASE NO.5/2020 IN THE MATTER OF V.PRABHUPRASAD V. KRISHNA DISTRICT CRICKET ASSOCIATION & ANR.

RESPONDENTS' EXHIBITS:

EXHIBIT R2(1) THE TRUE COPY OF THE JUDGMENT REPORTED IN 2015 KHC 4215 (2015(3) SCC 251) OF THE HON'BLE APEX COURT.

EXHIBIT R2(2) THE TRUE COPY OF THE RELEVANT PAGES OF THE LODHA COMMITTEE REPORT DATED 18.12.2015 SUBMITTED BY JUSTICE R.M.LODHA IN CIVIL APPEAL NO.4235/2014 BEFORE THE SUPREME COURT.

EXHIBIT R2(3) THE TRUE COPY OF THE JUDGMENT REPORTED IN 2016 KHC 6483.

EXHIBIT R2(4) THE TRUE COPY OF THE JUDGMENT REPORTED IN 2018 KHC 6572.

EXHIBIT R2(5) THE TRUE COPY OF THE JUDGMENT DATED 07.10.2016 IN CIVIL APPEAL NO.4235/2014.

EXHIBIT R2(6) THE TRUE COPY OF THE JUDGMENT DATED 21.10.2016 IN CIVIL APPEAL NO.4235/2014.

EXHIBIT R2(7) THE TRUE COPY OF THE CHAPTER I OF THE BYELAW REGISTERED BY THE BCCI IN SEQUENCE TO THE JUDGMENT EXT.R2(5) JUDGMENT. WP(C).No.28478 OF 2020(H)

EXHIBIT R2(8) THE TRUE COPY OF THE E-MAIL COMMUNICATION DATED 14/11/2018 SENT BY THE COMMITTEE OF ADMINISTRATORS APPOINTED BY THE HON'BLE SUPREME COURT IN C.A-4235/2014.

EXHIBIT R2(9) THE TRUE COPY OF THE JUDGMENT DATED 14/3/2019 IN C.A-4235/2014 & WPC-79/2019 OF THE HON'BLE SUPREME COURT.

EXHIBIT R2(10) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE ELECTION OFFICER MR.SASIDHARAN NAIR (RETIRED DISTRICT JUDGE AND FORMER CHIEF ELECTION COMMISSION OF STATE OF KERALA) DATED 9/10/2019.

EXHIBIT R2(11) THE TRUE COPY OF THE 10TH STATUS REPORT WITHOUT EXHIBITS SUBMITTED BY THE COMMITTEE OF ADMINISTRATORS DATED 28/10/2018 IN C.A- 4235/2014 BEFORE THE HONORABLE SUPREME COURT.

EXHIBIT R2(12) THE TRUE COPY OF THE COUNTER DATED 12.07.2019 IN OA NO.10/2019 ON THE FILES OF OMBUDSMAN OF THE KERALA CRICKET ASSOCIATION.

EXHIBIT R2(13) THE TRUE COPY OF THE AFFIDAVIT EXECUTED BY THE COUNSEL FOR THE PLAINTIFF IN OS NO- 871/2020 ON THE FILES OF MUNSIFF'S COURT THRISSUR.

EXHIBIT R2(14) THE TRUE COPY OF THE ORDER DATED 09.12.2019 IN CIVIL APPEAL NO.4235/2014.