'We do not accept this explanation' - Bombay High Court

The Bombay High Court's order on the BCCI's two-man committee investigating the IPL mess includes some scathing comments about the manner in which the board approached the task at hand, from the actual manner in which members were contacted to the breach of its own constitutional provisions in the process and its silence on several issues raised by the petitioner.

In the 61-page order, a copy of which is with ESPNcricinfo, Justices SJ Vazifdar and MS Sonak also reveal how the BCCI was caught out while trying to sidestep questions on the composition of the committee.

Tuesday's order prompted the board's interim president Jagmohan Dalmiya to concede that it created an "embarrassing" situation for the BCCI.

Although the committee's findings allowed N Srinivasan to resume as the BCCI president, a position from which he had stepped aside pending the probe, the High Court's ruling has exposed the faulty methods adopted to appoint the probe panel. The most important question was whether the BCCI had broken its own rules in the appointment of the committee once Sanjay Jagdale, the then-BCCI secretary who was originally appointed to the panel, had resigned.

The order hinged on Rule 2.2 of the IPL's Operational Rules, which says: "The commission will comprise up to three members of the IPL Code of Behavior Committee as selected by BCCI." The order quoted this, saying: "Rule 2.2 expressly permits a commission to be comprised of three members of the IPL Code of Behavior Committee as selected by BCCI. Rule 2.2 therefore mandatorily requires a member of the IPL Code of Behavior Committee to be on the commission. In other words a commission cannot be constituted without at least one member of the IPL Code of Behavior Committee."

However, Rafique Dada, arguing for the BCCI, told the court that the need to appoint only two independent members on the commission without having any of the five members from the code of behaviour committee was "born out of necessity", since no one was available.

With Jagdale, Ajay Shirke and IPL chairman Rajiv Shukla tendering their resignations, the behaviour committee was left with only two members - Arun Jaitley, the DDCA president, and commentator Ravi Shastri. "There is no reason furnished as to why they [Jaitley and Shastri] were not appointed on the commission. There is no explanation why respondent No. 1 [the BCCI] did not appoint them. Respondent No. 1 did not even ask them to be on the commission," the court observed.

Dada, the order said, explained that Shastri, in his post as television commentator, was a frequent overseas traveller. "We do not accept this explanation," the order said. "Most important is the fact that, as his name appears on the IPL Code of Behavior Committee, it must be presumed that he would be in a position to discharge his function as a member of the committee."

According to the court the onus was on the BCCI to prove and establish why no one from the code of behaviour committee could be part of the probe committee, making it necessary to appoint two independent members instead. "It must be held therefore, that the said commission was not duly constituted. It was constituted contrary to and in violation of the provisions of Rules 2.2 … of the Operational Rules," the order read.

The court also questioned the BCCI entrusting to a sole official - its game development manager Ratnakar Shetty - the task of coordinating the setting up of the committee, and that the process was undertaken without anything beyond bilateral discussions. "It does appear curious that in a matter as important as this the General Manager, Game Development, of the IPL and nobody else initiated the process and thereafter virtually orchestrated the same singlehandedly. Normally, in a matter of such importance, we would have expected the Governing Council to have met and deliberated the issue at a meeting or at least by way of video conferencing. There is no explanation why they did not do so … Even the alleged ratification of Dalmiya's decision to constitute a commission of the learned Judges alone is not supported by any documentary evidence. In short the entire process leading to the formation of the commission was undertaken orally," the court stated.

According to an affidavit filed by Shetty, he was the one making the calls to set the committee in place. Shetty said he called Jaitley and the BCCI's "legal advisor" before calling other members of the IPL governing council to inform them of the availability of T Jayaram Chouta and R Balasubramanian, the two retired high court judges who eventually comprised the panel. However, the petitioner argued that nowhere during the hearing as well as in the affidavit was the name of the legal advisor mentioned, nor was it furnished to the court as the case was being heard. "Despite the same," the order said, "respondent No. 1 has not filed a sur-rejoinder or cared even otherwise to furnish the details [of the legal advisor]. This would be necessary to refute the petitioner's contention that respondent No. 2 [Srinivasan] was responsible for the appointment of the members of the commission."

Cricket Associatoin of Bihar secretary Aditya Verma's petition also contended that Srinivasan was the BCCI president when the original three-man commission was appointed and he had decided to step aside only on June 2, three days after the formal appointment of the probe panel. Responding to this, the court said what role Srinivasan played exactly could only be conclusively established in a "trial" but did point to a "degree of probability" of him having had a hand in the appointment of the members of the inquiry committee.

"These are indeed very serious allegations in a matter which is even more serious. On this issue, the most that can be said in favour of the petitioner at this stage … is that it has made out a prima-facie case that respondent No. 2 was involved in the formation of the commission. The least that must be said in favour of the petitioner is that the respondents have not established that respondent No. 2 had no role to play in the formation of the commission," the court said.