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Judgment
The petitioners in all these writ petitions were the members of the Board of Directors of the 2nd respondent-Society (The Coorg District Coffee Growers Cooperative Society, Mercara) during the period from 23-4-1975 to 29-8-1978. They have, in these writ petitions under Art. 226 of the Constitution, challenged the order dated 29-8-1978 passed by the Joint Registrar of Co-operative Societies, Mysore Division, Mysore, in No. ADM, DSQ. 542/77-78 (Exhibit C disqualifying them u/s 126-A of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as the Act), from holding arty office in any Co-operative Society for a period of three years from the date of the order.
The basis for, passing that order was that the petitioners had drawn T. A. and D. A. more than what was permitted by the Bye-law No. 30 of the 2nd respondent Society. The case of the petitioners was that they had drawn T. A. and D. A. as there was a resolution bearing No. 29 dated 29-7-1976 enhancing the T. A. from 0-30 paise per kilometer to 0.42 paise per kilometer and again there was another resolution bearing No. 200 dated 28-3-1972 (sic) further enhancing the rate of T. A. from 0.42 paise to 0.50 paise and D. A. from Rs. 10/- to Rs. 15/- per day Passed by the previous Committee of Management. It is also to be noticed at this stage itself that the General Body of the 2nd respondent-Society has approved the amendment of the Bye-law No. 30 of the Bye-law by a resolution dated 20-2-1975 for enhancing T. A. and D. A, and that matter is still pending before the Government as the Registrar of Co-operative Societies has refused to register the amended bye-laws.
Bye-law No. 30 as it stood then and now also reads as follows :
"The services of the members of the Board of Directors shall be gratuitous. However, they may be paid a sitting fee of Rs. 10.00 only for each meeting and 0-32 paise per K. M. for journeys for attending the meetings. They may also be paid T. A. and D. A. at the following rates for journeys performed by them in connection with the business of the Society :
(1) 32 Paise per K. M. when journeys are performed either in their own vehicles or in public conveyance plus daily allowance of Rs. 10.00.
(a) Any delegate or any member of the society who represents the society at the General Body meeting of any other society may also be paid at the rates prescribed in 30 (i) and (ii)."
From the aforesaid Bye-law it is clear that the Petitioners were not entitled to draw T. A. more than 0.32 paise per Kilometer for journeys for attending the meetings and sitting fee of Rs. 10/- for each meeting. Therefore, it is not Possible to hold that the Joint Registrar is not justified in coming to the conclusion that the petitioners, have contravened Bye-law No. 30 and as such, they have become liable for the consequences provided u/s 126-A of the Act.
The Provisions contained in S. 126-A(1)(b) and (d) of the Act, are as follows:
"Removal and disqualification of a member of a Committee--- (1) If any member of a committee of a Co-operative Society during the term of his office,
(a) xx xx xx
(b) has acted or has been acting fraudulently or with gross negligence or in contravention of the provisions of this Act, the rules or the bye-laws of the co-operative society or without the sanction of the co-operative society where such sanction is necessary or contrary to any resolution of the co-operative society or its committee or in any way prejudicial to the interest of the co-operative society; or
(c) xx xx xx
(d) is not discharging his duties satisfactorily, the Registrar may, either on a report made to him or otherwise, by order, remove, such member and in cases falling under Clauses (b), (c) and (d) disqualifying him from serving on the committee of the cooperative society or holding any office in any co-operative society for such period, not exceeding three years, as he may specify."
From the aforesaid provisions, it is clear that if a member of the committee acts in contravention of the Byelaws of the society, he can be disqualified in the manner provided therein. That being so, in the instant case, the petitioner being the members of the Board of Directors, by- drawing more T. A. and D. A. than what is provided by Bye- law No. 30 of the Society, have acted in contravention of the Bye-law No. 30, therefore, they are liable to be disqualified. To this extent, the order of the Joint Registrar of Co-operative Societies cannot be sad to suffer from any infirmity.
But, Sri Narayana Rao, the learned Counsel for the petitioners, submitted that the Joint Registrar has not acted judiciously and has acted arbitrarily in imposing the period of disqualification. No reasons are-given for disqualifying the petitioners for the maximum period of three years. The disqualification prescribed by Section 126-A of the Act are of very serious nature affecting a very important right of a members of a co-operatives society.
From the provisions contained in Section 126-A(1)(d) of the Act it is clear that on coming to the conclusion that a member of a committee has acted in contravention of the provisions contained in clauses (b), (c) and (d) of sub-section (1) thereof, the authority may not only remove such members from the committee of the concerned society; but, can also disqualify him from serving on the committee of the concerned society or holding any office in any co-operative society for a period not exceeding 3 years. By the impugned order, the petitioners have been disqualified from holding any office in any co-operative society for a period of 3 years. Consequently, they cannot hold any office for a period of three years in the 2nd respondent society also. When a statute gives several alternatives in the matter of awarding punishment, it is incumbent upon the authority to find out, having regard to the facts and circumstances of the case, which one is appropriate to be imposed. Similarly, the period of punishment also is to be determined after taking into consideration the extenuating circumstances if any existing in the case. No doubt, one of the objects of inflicting punishment is to see that it acts as a deterrent. But equally important principle of law is that the sentence should not be excessive. Thus, it is to be held that the period and extent of the disqualification to be imposed u/s 126-A of the Act, does not automatically follow the determination that a member of the committee has acted in contravention of the Bye-laws of the society or, done anything coming within the purview of sub-clauses (b), (c) and (d) of sub-section (1) thereof. The duration and extent of the qualification has to be determined on taking into consideration of all the relevant facts and circumstances established in the case.
Awarding of punishment is as much an integral and important part of the decision in the case as the decision relating to the guilt. Therefore, the first respondent, while fixing the extent and duration of the disqualification, is required to take into consideration all the extenuating circumstances established in the case which will have a bearing upon the determination of the question relating to the extent and duration of the disqualification to be imposed. In the instant case, the first respondent without taking into consideration the extenuating circumstances and even without assigning any reason has imposed the maximum period of disqualification, which cannot the sustaine.
In this section further development that has taken place is that the petitioners have deposited the excess amount of T. A. and D. A, and sitting fee drawn by them during the period when they were Directors of the society. The first respondent has, by the very impugned order, dropped the action against some of the Directors of the Society who have deposited the amount. In addition to this, the Petitioners have undergone considerable period of disqualification in so far it related to the holding of office in the 2nd respondent-Society. These are very relevant circumstances to be taken into consideration by the first respondent while fixing the extent and duration of disqualification.
For the reasons stated above, it is held that the first respondent is right in coming to the conclusion that the petitioners have contravened the Bye-laws of the 2nd respondent Society and thereby have become liable for the disqualification as provided u/s 126-A of the Act. Consequently, the impugned order (Exhibit-C) passed by the first respondent to that extent is not liable to be disturbed or interfered with But, that portion of the order by which the petitioners are, disqualified from holding any office in any co-operative society for a maximum period of three years cannot be sustained. Accordingly, these writ petitions are partly allowed and the impugned order Exhibit C dated 29-8-1978 bearing No. ADM. DSQ. 542/77-78 passed by the first respondent in so far it relates to the imposing of disqualification on the petitioners from holding any office in any co-operative society for a period of three years only is quashed.
The matter is remitted to the first respondent with a direction to consider the question relating to the extent and duration of disqualification to be imposed upon the petitioners u/s 126-A of the Act.
The first respondent is also directed to dispose of the matter within one month from the date of receipt of this order.
Let a copy of this order be despatched to the first respondent, without any undue delay.
Order accordingly.