( 1 ) CAN the Gujarat State Co-operative Tribunal be validly constituted without inclusion of a `lawyer-member ? This question has arisen in the context of Rule 78 of the Gujarat State Co-operative Societies Rules 1965 which prescribes qualification of members of the Gujarat State Co-operative Tribunal. Another question is-If members of managing committee of a society decide to spend the finds of the society in irregular fashion on account of over exuberance due to honest mistake and without any unjust or improper motive would it amount to misconduct inviting action for `surcharge as provided under Section 93 of the Act ?

( 2 ) THESE are the main questions which call for examination and answer in the backdrop of the following facts:

( 3 ) RESPONDENT No. 1-Society is registered as a co-operative society on February 24 1949 and its registration No. is 12589. It is a federal society. At the relevant time petitioner No. 22 was the Manager of the Society and other petitioners were the members of the Managing Committee of the Society. In connection with the affairs of the Society for the period commencing from July 1 1973 to June 30 1975 special audit was carried out which was completed on October 20 1976 Thereafter respondent No. 2 ordered that one Shri B. C. Vora be appointed as an Investigating Officer for carrying out investigation under Section 93 (1) of the Gujarat Co-operative Societies Act (hereinafter referred to as the Act for brevity sake ). In this order certain items for the purpose of investigation were mentioned. Thereafter another order dated April 27 1977 was passed and further items were included for the purpose of investigation. The petitioners were called upon to explain the allegations made against them. The petitioners replied to the same. After affording an opportunity of being heard and after following the procedure in accordance with law the Investigation Officer passed an order dated August 10 1979 By this order he held that the petitioners were liable for the following items:1 The Committee had given wrist-watches and/or clocks to the members of the Committee on the occasion of Silver Jubilee celebration of the Society. This was not in accordance with the provisions of Sections 65 and 66 of the Act. The members of the Committee were liable to reimburse the Society in respect of the expenditure incurred in this behalf. 2 That stainless steel utensils like TAPELI (cooking pot) were given to the staff members and to the ordinary members of the society on the occasion of Silver Jubilee. For the expenditure incurred on this count also the Managing Committee members were held liable. 3 An amount of Rs. 18 839. 28 P was spent from the `sahakar Prachar Fund and an amount of Rs. 96 35. 75 P was spent from `customer bonus fund. All the members of the Committee were held liable for the aforesaid amount also.

( 4 ) THE petitioners felt aggrieved by the aforesaid order and preferred two separate appeals being Appeals Nos. 152 and 153 of 1979 before the Gujarat State Co-operative Tribunal. The Tribunal after hearing the parties held that the order passed by the Investigating Officer was legal and valid and and dismissed the appeals by its common order dated June 18 1981 The petitioners have preferred this Special Civil Application under Article 227 of the Constitution of India and have challenged the legality and validity of the aforesaid orders passed by the lower authorities. The petitioners challenge is two-fold: (1) The constitution of the Tribunal was not in accordance with the provisions of the Act and Rules inasmuch as at the relevant time no Member of the Tribunal possessed requisite qualifications of being an advocate or pleader of not less than ten years standing. Therefore the constitution of the Tribunal being against the provisions of law and particularly against the provisions of Rule 78 of the Cooperative Societies Rules 1965 (the Rules for short) the decision rendered by the Tribunal is il