RITU PRAKASH DESAI Vs. WILLINGDON SPORTS CLUB

JUDGEMENT

(1.) This Notice of Motion is taken out in a suit filed by the Plaintiffs, who are respectively a member of Defendant No.1 Sports Club and her spouse, against the club and its Balloting and disciplinary committee, Defendant No.2 to the present suit. The Club has initiated disciplinary proceedings against the Plaintiffs, through the committee. The grievance of the Plaintiffs is that the committee has denied legal representation to them in the proceedings, relying on Rule 32(f)(iv) of the Rules and Byelaws of the Club. The suit seeks a declaration that Rule 32(f)(iv) is void and non est in law and not enforceable against the Plaintiffs and a perpetual injunction restraining the Defendants from prohibiting the Plaintiffs to be represented through their Advocate in the disciplinary proceedings.

(2.) On a sexual harassment complaint made by a fellow member of the club against Plaintiff No. 2, the Balloting and Disciplinary Committee of the club has issued a show cause notice to Plaintiff No. 1, who is the spouse of Plaintiff No. 2 and a member of the club, and initiated a disciplinary inquiry pursuant of such notice. Rule 32(f)(iv) of Rules and Byelaws of the Club, on the basis of which legal representation has been denied to the Plaintiffs, provides that : "No member shall have the right to be represented by an Advocate or a representative at any disciplinary proceedings." It is the submission of Mr. Seervai, learned Senior Counsel appearing for the Plaintiffs, that the subject rule is treated by the club not as a directory rule, but as a mandatory rule, which prohibits legal representation to the member, who is called upon to show cause in a disciplinary inquiry. Relying on the decision of the Supreme Court in the case of Union of India v. Tulsiram Patel (1985) 3 Supreme Court Cases 398, it is submitted by learned Counsel that principles of natural justice apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter. Learned Counsel submits that in such a case principles of natural justice require that such body of men must decide the matter fairly and impartially and that includes allowing the delinquent a proper opportunity to show cause against the charge levied against him. Learned Counsel accepts that it may be permissible in a given case not to allow a lawyer to represent the member inquired against, but the rule of the club, which completely prohibits any legal representation whatsoever to the member in the matter of a disciplinary inquiry, certainly offends the rules of the natural justice. Learned Counsel submits that this is particularly so, when the disciplinary committee itself comprises of legal practitioners, as is the case in the present matter. Relying on the judgment of the Court of Appeal in the case of Enderby Town Football Club Ltd v. Football Association Ltd Chancery Division Decision [1971] Pg.591, learned Counsel submits that a tribunal may well exercise its discretion and decline legal representation, but to fetter its discretion by rigid bonds would be impermissible. Relying on the Scottish judgment in the case of Wiles v. Bothwell Castle Golf Club 2005 S.L.T. 785, learned Counsel submits that whatever may be the principles of club law enunciated by older cases, the present day courts must recognize the nature of a social or sporting club, which has undergone important changes over the years, such clubs now being often hubs around which the social and business lives of their members revolve; Courts should now be more ready to intervene even on procedural matters, where they earlier did not. Learned Counsel submits that the impugned rule of the club in so far as it bars legal representation altogether must be held to be bad in law and struck down. Lastly, learned Counsel submits that in the alternative, for the very same reasons, the rule should be so interpreted, or possibly read down, as to deny legal representation as of right, whilst, at the same time, preserve the discretion of the disciplinary committee to allow such representation in a suitable case.

(3.) Mr. Khambatta, learned Senior Counsel for the Defendants, counters these submissions inter alia citing the law laid down by the Supreme Court in the case of T.P. Daver v. Lodge Victoria No.363. Relying on this law, learned Counsel submits that any power in a club to expel its member is sourced in the contract amongst the members and with the club. It is submitted that any person who joins an association or a club agrees to be governed by the rules of such association or club, under which he may be expelled and has no right of redress against such expulsion, so long as it is according to the rules and in good faith. Relying on the judgment of Calcutta High Court in the case of M.S. Ezra v. Mahendra Benerje (1946-47) 51 CWN 612, learned Counsel further submits that the Court cannot sit in appeal and scrutinize any inquiry or, for that matter, the validity of any rule of expulsion, such rule merely being an embodiment of the contract between the members. Learned Counsel does not dispute that natural justice ought to be part of any disciplinary inquiry even under the club law, but the right to legal representation, submits Counsel, is not necessarily part of natural justice, particularly when the rules of the club prohibit such representation.