By the Court: Govind Mathur, J.

Reportable

The Additional Registrar, Cooperative Societies, Udaipur Division, Udaipur, by an order dated 6.8.2012, while exercising powers under Section 30(2) of the Rajasthan Cooperative Societies Act, 2001 (hereinafter referred to as the Act of 2001), removed the petitioner from the office of the President and Membership of the Management Committee of Kachchher Dugdh Utpadak Sahkari Samiti Ltd. To challenge the order aforesaid, the petitioner preferred a petition for writ and that came to be rejected under the order dated 22.8.2012, hence, this special appeal is preferred.

Learned Single Bench negatived contention of the petitioner that under the scheme of the Act of 2001 the power to remove a person from membership of the cooperative societies, its executive or any office vests with Joint Registrar, thus, the order impugned is without jurisdiction being passed by the Additional Registrar. The other argument of the petitioner that as per Rule 36 of the Rajasthan Cooperative Societies Rules, 2003 (hereinafter referred to as the Rules of 2003), there should be a proposal by the registering authority for initiating proceedings under Section 30(2) of the Act of 2001, but in the instant matter no such proposal was made.

In appeal, learned counsel for the appellant while reiterating the grounds referred above also submitted that the order impugned is bad being passed without affording reasonable opportunity to the petitioner to state his objections.

To adjudicate the issues involved, it shall be appropriate to notice certain necessary facts giving rise to present litigation.

The petitioner was elected as a Director and Chairman of Udaipur Zila Dugdh Utpadak Sahkari Sangh Limited, Udaipur. At the instance of one Assistant Project Officer working with Mahatma Gandhi NAREGA Panchayat Samiti, Chittorgarh an FIR was registered with Anti Corruption Bureau and while acting upon that a raid was made at the house of the petitioner on 29.6.2012. The raid party recovered a sum of Rs.10,000/- in a newspaper Dainik Bhaskar, Udaipur Edition. The petitioner was arrested on 29.6.2012 (Friday) and was released on bail on 2.7.2012 (Monday). The petitioner preferred a miscellaneous petition before this Court under Section 482 Code of Criminal Procedure to challenge the first information report referred above and the proceedings initiated in pursuance thereto. In the background aforesaid, a notice dated 9.7.2012 issued by the Additional Registrar, Cooperative Societies, Udaipur was served upon the petitioner on 9.7.2012 calling her explanation and objections as to why she be not removed from the office of the Chairman, Kachchher Dugdh Utpadak Sahkari Samiti Limited and also from membership of its Management Committee. The petitioner on 30.7.2012 submitted detailed objections and also claimed for adducing evidence to defend herself and for grant of an opportunity of personal hearing. The matter was fixed before the Additional Registrar, Cooperative Societies, Udaipur on 6.8.2012 and as per the petitioner on the same day the matter came to be disposed of without even calling her for hearing. The petitioner stated that she was present in the office of the Additional Registrar, Cooperative Societies on 6.8.2012 but the Additional Registrar without calling her to adduce evidence and to avail opportunity of hearing, passed the order impugned on same day removing her from the office of the President of the Cooperative Societies and also from membership of its Management Committee.

As already stated, the order impugned dated 6.8.2012 was subject matter of the writ petition that came to be dismissed under the judgment impugned. Learned Single Bench arrived at the conclusion that under Rule 36 of the Rules of 2003 a proposal is required to be made by the registering authority for initiating process under Section 30(2) of the Act of 2001, but if no such proposal has been made, then that will not vitiate the proceedings as the substantive provision under the Act of 2001 does not postulate for making any proposal. The power provided under the Act of 2001 may be exercised by the Registrar, Cooperative Societies as per Section 30 even in absence of such proposal. Learned Single Bench also arrived at the conclusion that passing of the order by the Additional Registrar, Cooperative Societies instead of Deputy Registrar, Cooperative Societies too does not make the order bad as the authority of the Registrar has been delegated to various subordinate officials for better functioning and administration. Beside that, the Additional Registrar, Cooperative Societies, Udaipur Division, Udaipur, is in-charge of entire Udaipur Zone, thus, hold competence for taking action as per Section 30 of the Act of 2001.

Before proceeding further, it shall be relevant to mention that during pendency of this appeal the investigating agency has already submitted a final report to the court competent with conclusion that no offence was committed by the petitioner under Prevention of Corruption Act, 1988 or otherwise and she was subjected to a conspiracy. The final report submitted by the investigating agency is yet pending consideration before the court competent.

In this appeal, it is also argued by counsel for the appellant that as per Section 30 of the Act of 2001, powers under sub-section(2) could have been exercised only by extending a reasonable opportunity to the petitioner to state her objections. The term reasonable opportunity is something more than simple adherence of the principle of audi alterm partem. It is asserted that the appellant under the communication dated 30.7.2012 raised several objections and also claimed for affording an opportunity to adduce evidence and further for personal hearing, but that was not given. The denial/non-grant of such opportunity violates right of the appellant to have a reasonable opportunity.

Per contra, the stand of counsel for the Department of Cooperative is that the Act of 2001 and the Rules framed thereunder nowhere postulates for granting such opportunity, thus, asking for tendering objections is sufficient compliance of the provisions of Section 30(2) of the Act of 2001.

Heard counsel for the appellant and the counsels for the respondents.

Before examining the rival submissions made by learned counsel for the parties, it shall be appropriate to notice that by the Constitution (Ninety-seventh Amendment) Act, 2011, one more directive principle of State policy i.e. Article-43B was added in part-IV of the Constitution of India, which reads as under:-

The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.

The inclusion of the directive principle aforesaid in part-IV of the Constitution indicates significance of the cooperative movement in socio economic progress of the country.

By the same Amendment Act, part-IXB was included to the Constitution which relates to the cooperative societies. Article 243ZI empowers the State legislature to enact law with respect to incorporation, regulation and winding-up of cooperative societies based on the principles of voluntary formation, democratic member-control, membereconomic, participation and autonomous functioning. As per clause (2) of Article 243ZJ, the term of office of elected members of the board and its office-bearers shall be five years from the date of election and the term of officebearers shall be coterminous with the term of the board. Part-IXB of the Constitution extends constitutional status to a cooperative society and also ensures its autonomy and democratic functioning. A constitutional protection is also provided to the management committees of the cooperative societies and its office-bearers to work for the term of their election subject to reasonable checks provided by the Union or State legislature, as the case may be. The emphasis of the legislature is to extend broader autonomy to the cooperative societies in their administrative control and management. While examining merits of the case in hand, we have to keep in mind the constitutional intent as depicted under Article 43-B and Part-IXB of the Constitution of India.

Section 30 of the Act of 2001 is a check to the right protected under clause (2) of Article 243ZM of the Constitution as that empowers Registrar to curtail term of a committee, cooperative society and its member in certain eventualities. The exception carved out in the Act of 2001, thus, is required to be examined by taking all necessary care to ensure constitutional intents relating to cooperative societies.

Section 30 of the Act of 2001, to the extent that is relevant in resolving present controversy, reads as under:-

30. Removal of Committee or member thereof-- (1) If, in the opinion of the Registrar, the committee of a cooperative society or any member of such committee persistently makes default or is negligent in the performance of the duties imposed on it or him by this Act or the rules or the bye-laws or commits any act which is prejudicial to the interest of the society or its members, or wilfully disobeys directions issued by the Registrar for the purpose of securing proper implementation of cooperative production and other development programmes approved or undertaken by the Government, or is otherwise not discharging its or his functions properly, or in the case of the State Cooperative Bank or a Central Cooperative Bank, does not comply with the regulations made or issued by the Reserve Bank of India from time to time in respect of such societies or does not fulfil any eligibility criteria specified by the Reserve Bank of India and a request has been received from the Reserve Bank of India or the National Bank to the effect, the Registrar may propose removal of such committee or the members of such committee, as the case may be.

(2) On the proposal to remove a committee or a member thereof under sub-section (1), the Zonal Registrar, in case of a Primary Society, the Registrar, Cooperative Societies, Rajasthan in case of a central society and the State Government in case of an apex society, may, after giving the committee or the member, as the case may be, a reasonable opportunity to state its or his objections, if any, by order in writing, -

(a) remove the committee and appoint a Government servant as an Administrator to manage the affairs of the society for a period not exceeding six months; or

(b) remove the member of such committee and get the vacancy filled up for the remainder of the term of the outgoing member, according to the bye-laws.

The procedure to execute authority under Section 30 of the Act of 2001 is given under Rule 36 of the Rules of 2003 and relevant portion of that reads as under:-

36.Procedure for removal of committee or member thereof.-(1)Notwithstanding anything contained in the bye-laws of a society but subject to the provisions of sub-section(1) of section 30, the Registering Authority of a society may propose to remove the committee or any member of the committee of the society.

(2) On receipt of the proposals of the Registering Authority under sub-rule(1), the authority specified in sub-section(2) of section 30 shall, before making an order on such proposals, give an opportunity to the committee or member concerned to show cause, within fifteen days from the date of issue of notice, as to why the proposals shall not be accepted.

(3) Where the authority specified in sub-section (2) of section 30 accepts the proposals of the Registering Authority made under sub-rule(1), he shall, by an order in writing

(a) remove the committee and appoint an administrator, who shall be a government servant, to manage the affairs of the society; or

(b) remove any member of the committee of a society and get the vacancy filled up for the remainder of the term of the outgoing member according to the bye-laws.

True it is, Section 30 of the Act of 2001 and Rule 36 of the Rules of 2003 nowhere mentions about holding a complete inquiry for removing a committee or its member from office, but the term used under sub-section(2) of Section 30 i.e. a reasonable opportunity to state its or his objections is having its own significance and that indicates all necessary due care require to be observed while invoking authority under Section 30 of the Act of 2001. It is pertinent to mention here that if the legislature was intending to adhere the doctrine of audi alterm partem in its simple nature, then there would have been no need to use the word reasonable as a prefix to opportunity. The use of word reasonable as a prefix to opportunity changes the entire complexion of the process that is to be adhered while considering objections made by the committee or its member, as the case may be.

The word reasonable as given in different dictionaries means as follows :-

As per Websters Third New International Dictionary, the term reasonable means

Being in agreement with right thinking or right judgment, not conflicting with reason, not absurd, not ridiculous, a conviction, a theory, being or remaining within the bounds of reason, not extreme, not excessive, a request, a hope of succeeding, spent a amount of time in relaxation, is of a size, moderate as, not demanding too much, a boss, not expensive, that allows a fair profit, having the faculty of reason, rational, possessing good sound judgment, well balanced, sensible, can rely on the judgment of a man.

As per Blacks Law Dictionary, the term reasonable means-

Fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason, rational, governed by reason, under the influence of reason, agreeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.

As per The New Shorter Oxford English Dictionary, the term reasonable means

Endowed with the faculty of reason, rational, Now rare, in accordance with reason, not irrational or absurd, proportionate, having sound judgment, ready to listen to reason, sensible, also not asking for too much, within the limits of reason, not greatly less or more than might be thought likely or appropriate, moderate, in price, of a fair, average, or considerable amount, size, etc., requiring the use of reason.

As per the dictionary meaning the word reasonable is having a very broad amplitude and that may vary facts to facts, however, an objective, fair and just conclusion supported by acceptable reasons is its foundation. The reasonable opportunity to state its or his objections, thus, means the opportunity to state objections to arrive at just and fair conclusion.

The term reasonable opportunity itself has been explained and interpreted by Honble the Supreme Court with reference to clause (2) of Article 311 of the Constitution of India. Under clause (2) of Article 311 reasonable opportunity of being heard is required to be given to a civil servant who may be dismissed or removed from service or reduced in rank as a consequent to an inquiry in relation to charges of misconduct. In Khem Chand v. Union of India & Ors. (AIR 1958 SC 300 [LQ/SC/1957/138] ), Honble the Supreme Court summarised the ingredients of reasonable opportunity under Article 311(2) of the Constitution as under:-

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.

Para (c) referred above has lost its importance after 42nd constitutional amendment, however, in view of the law laid down in the case of Union of India & Ors. v. Mohd. Ramzan Khan (AIR 1991 SC 471 [LQ/SC/1990/740] ), a report of the inquiry officer is an adverse material to the person effected and, therefore, copy of it is required to be given to the person concerned before penalising him with dismissal, removal or reduction in rank. The other extension of the concept of reasonable opportunity is that an opportunity of personal hearing is required to be given to the person effected before subjecting to a penalty. The order of penalty should be speaking and reasoned one is an another important facet of this concept.

Having considered the terms reasonable and reasonable opportunity as above, it can be said that under the administrative law the doctrine of reasonable opportunity is an objective mode to adjudicate a disputed issue and that demands a fair, proper, moderate and satisfactory opportunity to the person effected to place his version of facts before the authority competent to decide the issue or to take penal action and further that the competent authority should consider such version of the effected person without any bias, prejudice or on extraneous factor, and while doing so, as far as possible an opportunity of personal hearing should also be given. The objective consideration includes the duty of supporting findings by reasons.

As already stated, a cooperative society is a body created under a law which is required to be governed in consonance with provisions of part-IXB of the Constitution of India with the endeavour of the State to protect its autonomy, democratic control and professional management. Meaning thereby, a cooperative society should have minimum interference of the State or any other agency than the body authorised to administer the society. Under Section 30 of the Act of 2001 the Registrar is having authority to remove a committee of a cooperative society or any member of such committee in prescribed eventualities by extending reasonable opportunity to state objections. Whether the opportunity given is reasonable or not, that is to be seen by examining facts of the case and while doing so, the prime consideration is fairness, objectivity, the reasons given to invoke exceptional power in addition to comfort and convenience of the person affected. These ingredients are required as the phrase used in the statute is not opportunity but reasonable opportunity. The calling of explanation or objection would have been sufficient if the term used in the statute would have been opportunity to state objection. But, use of term reasonable puts a burden upon the authority competent to have something more than just calling objection. The legislature has used the word reasonable with a view to provide all possible chance to the person concerned to defend him/her. This one is a statutory protection given to the cooperative societies to ensure their autonomous and democratic status and also social welfare catalyst role. While discharging such an important and exceptional duty, the authority competent is also required to satisfy himself that whatever action he is taking is in complete compliance of the law and further by keeping in mind that his decision would affect a body whose autonomy and democratic functioning is required to be maintained as a constitutional mandate.

With this background, this Court is required to examine that what shall be the appropriate reasonable opportunity of stating objections for a person effected who is being subjected to authority under Section 30 of the Act of 2001.

Under Section 30 of the Act of 2001, a reasonable opportunity is required to be given to the person effected to state his objections on basis of which a proposal is made for his removal from the office and such removal is not simplicitor, but stigmatic in view of the fact that this power can be invoked only after arriving at the conclusion about the default or negligence in performance of duties or by causing injury to the interest of the society or its members. Such a determination can be made only after holding an inquiry. An elected member or officer bearer of a cooperative society in our democratic system cannot be put at a place worst than the civil servant. A valuable protection is provided to the civil servants under Article 311 of the Constitution of India and in the same analogy the persons who are not civil servants, but are office bearers of the bodies created and protected under the Constitution of India deserves to be protected. The legislature has extended this protection to the office bearers and members of the executive committees of the cooperative societies by using the term reasonable opportunity to state its or his objections in Section 30 of the Act of 2001. In view of that though no reference of such inquiry is given under Section 30 of the Act of 2001 and Rule 36 of the Rules of 2003, but that is implicit due to use of word reasonable opportunity under Section 30 aforesaid.

In the case in hand the Additional Registrar acted upon certain newspapers and also on basis of a proposal made by the Managing Director of Udaipur Dugdh Utpadak Sahkari Sangh Ltd. The Managing Director in no case is having authority to make any such proposal. Be that as it may, the Additional Registrar under the notice dated 9.7.2012 mentioned certain facts and sought explanation from the petitioner. The petitioner in response thereto made a request to hold an inquiry and also to provide an opportunity of hearing. The Additional Registrar instead of conducting inquiry passed the order dated 6.8.2012 even without providing an opportunity of personal hearing to the petitioner. The total discussions made by the Additional Registrar to hold the petitioner guilty, is as under:-

LANGUAGE

The order removing the petitioner does not disclose as to how the Additional Registrar find the objections raised by the petitioner worthless. The Additional Registrar should have dealt with all the objections and also should have given reasons, if, he was of the view that no opportunity of personal hearing was desirable looking to the exceptional facts, if any. A very strange fact of the case is that the petitioner was called to appear before the Additional Registrar on 6.8.2012 and she was present in the office, then too the matter was decided in her absence. The Additional Registrar as a matter of fact should have conducted an inquiry to arrive at a definite conclusion to adjudicate the allegations levelled against the petitioner for the act that was said to be prejudicial to the interest of the society or its members by framing definite charge against her and by asking for explanation. On being not satisfied with the explanation given, then by providing adequate opportunity for defence including the opportunity of personal hearing. The unfortunate part of the instant case is that in the garb of Section 30 of the Act of 2001 the Additional Registrar has put an elected member and office bearer of a body created under Constitution even at a lower pedestal than to a civil servant by throwing her out from the office without affording adequate opportunity to defend herself. The charge against the petitioner though would have been quite serious, but in no event she could have been removed from the office without holding an inquiry. These facts clearly establish violation of a valuable right of the petitioner to have reasonable opportunity to state the objections relating to the proposed removal from the office. In view of it, the order impugned is apparently bad.

Accordingly, without examining the grounds on which learned Single Judge dismissed the writ petition, we are inclined to accept this appeal for the reasons given, hence, is allowed. The petition for writ too is allowed by setting aside the order impugned dated 6.8.2012 passed by the Additional Registrar, Cooperative Societies, Udaipur Division, Udaipur in exercise of the powers under Section 30(2) of the Act of 2001. Consequently, the petitioner stands restored as President and Member of the Management Committee of Kachchher Dugdh Utpadak Sahkari Samiti Ltd., Kachchher, District Udaipur.

No order to costs.