The Delhi High Court has dismissed the appeal by the Delhi and District Cricket Association, upholding the order of the Additional District Judge for an injunction on the suspension of DDCA secretary Vinod Tihara.
The High Court has ruled that the DDCA Apex Council is not the competent authority to suspend the secretary, who has been appointed (elected) by the General Body of the Association, which is registered as a company under the Companies Act of India.
The court in its 25-page order has observed that “…the Apex Council of the appellant (DDCA) is akin to the Board of Directors of a company. It does not constitute or substitute for the General Body of the company, therefore, it cannot usurp any powers of the General Body of shareholders… When a statute specifically mandates that the director shall be removed by the company, i.e. the shareholders/general body of the company, then the statutory scheme would have to be followed in letter and spirit.”
The court also declined to entertain DDCA counsel’s argument that the DDCA Ombudsman Justice (Retd.) Badar Durrez Ahmed has held Tihara guilty of indiscipline and misconduct, which was detrimental to the interest of DDCA.
“The decision of the learned Ombudsman may be non-justiciable…, inasmuch as he has found that respondent No.1 (Tihara) has acted against the interests of the DDCA as well as against the interest of the game of cricket. However, the conduct of respondent is not under examination by this Court. Instead, what is to be determined is whether R-1 (Tihara), as Secretary of the DDCA (akin to Director of a Company) can be removed by the appellants’ Apex Council (Board of Directors) or by the company itself, i.e., by the General
Body of the shareholders,” states the order.
The High Court further observed that an ordinary member can be removed by the Board of Directors, “but the Secretary (i.e. the Director) of the Association is in a different position, and he can be removed from that post only by the General Body which had appointed him. The underlying principle being that only the appointing authority can be the dismissing/removing authority and not the peers of the Apex Council, who are collectively chosen and entrusted with the administration of the DDCA by its General Body. Members of the Apex Council are equal to each other in terms of their appointment and cannot be removed by a peer. Although the position and functions of the members of the Apex Council are defined in terms of the AOA (articles of association), nevertheless they being appointed by the General Body can only be removed by the latter, higher authority…
“What clearly emanates from the above discussion is that only the company i.e. General Body can remove a director, because anything other than that would be in derogation of the statutory provisions.”
The court while dismissing the DDCA petition and terming it “without merit” had further directed that “… it would be prudent that the matter be resolved at the earliest i.e. the issue be placed before the General Body of the Association to consider the position of the respondent’s (Tihara’s) Membership/Secretaryship, in view of the decision of the learned Ombudsman. The appellant may take a decision in this regard in four weeks from the date of this order.”
The orders pave the way for Tihara to continue as the DDCA Secretary till the time association’s general body decides otherwise.
It will be interesting to see if, and when, the DDCA apex council decides to call the general body to act upon the decision of the ombudsman.