Authors: Chandan Kumar Rai1, Arti2 and Sanjeev Kumar1
1Ph.D. Scholar, Dairy Extension Division, NDRI, Karnal-132001, Haryana, India
2Ph.D. Scholar, DES&M, NDRI, Karnal-132001, Haryana, India
The new concept of producer companies is based on the recommendations of an expert committee led by noted economist, Y. K. Alagh. The committee was asked (a) to frame a legislation that would enable incorporation of cooperatives as companies and conversion of existing cooperatives into companies and (b) to ensure that the proposed legislation accommodated the unique elements of cooperative business with a regulatory framework similar to that of companies.
Formation: Any ten or more individuals, each of them being a producer, that is, any person engaged in any activity connected with primary produce, any two or more producer institutions, that is, producer companies or any other institution having only producers or producer companies as its members or a combination of ten or more individuals and producer institutions, can get a producer company incorporated under the Act. The companies shall be termed as limited and the liability of the members will be limited to the amount, if any, unpaid on the shares. On registration, the producer company shall become as if it is a private limited company with the significant difference that a minimum of two persons cannot get them registered, the provision relating to a minimum paid-up capital of Rs. 1 lakh will not apply and the maximum number of members can also exceed 50. Members' equity cannot be publicly traded but be only transferred. As such, "producer companies would not be vulnerable to takeover by other companies or by MNCs.'
Objectives of producers companies: The objects of producer companies shall include one or more of the eleven items specified in the Act, the more important being:
- Production, harvesting, procurement, grading, pooling, handling, marketing, selling, export of primary produce of members or import of goods or services for their benefit;
- Processing including preserving, drying, distilling, brewing, venting, canning and packaging of produce of its members; and
- Manufacture, sale or supply of machinery, equipment or consumables mainly to its members.
Management Objectives of producers companies:
- Every producer company is to have at least five and not more than 15 directors. Minimum prescribed for private limited is two and for public limited three, while the maximum will depend on the number mentioned in the respective Articles. Usually the maximum is pegged at twelve.
- A full time chief executive, by whatever name called, is to be appointed by the board. He shall be an ex-officio director and will not be liable to retire by rotation. He shall be entrusted with substantial powers of management as the board may determine. This provision differs from that applicable to limited companies - a private limited need not have any chief executive while public limited companies, only with paid-up capital exceeding Rs. 5 crores, have to have a managing director.
- A stipulation that could dismay company secretaries is that only producer companies having an average annual turnover exceeding Rs. 5 crores in each of three consecutive years need have a whole-time secretary. It is not mentioned what would happen to the incumbent, if the turnover falls below this minimum. This is in contrast to the mandate that private and public limited companies having a paid-up capital of Rs. 2 crores or more should have a whole-time secretary.
Members will be eligible to receive bonus shares. An interesting provision is for the distribution of patronage bonus (akin to dividend) after the annual accounts is approved - patronage bonus means payment out of surplus income to members in proportion to their respective patronage (not shareholding). Patronage, in turn, is defined as the use of services offered by producer companies to their members by participation in their business activities. Incidentally, there is an error in drafting - the powers of the board include "determination of the dividend payable'' - it should have been "patronage bonus payable.''
Reserves: Every producer company has to maintain a general reserve in every financial year and in case there is a not sufficient fund in any year for such transfer, the shortfall has to be made up by members' contribution in proportion to their patronage in the business this is a well-thought out provision.
Audit: An unnecessary stipulation is that "without prejudice to the concerned sections in the Act,'' the auditors of producer companies have to specially report on some additional items such as debts due and bad debts, verification of cash balances and securities, details of assets and liabilities, loans extended to directors and details of donations and subscriptions. These are all integral parts of any audit, both statutory and internal and one fails to understand the logic behind this stipulation.
Internal audit: It is mandated that every producer company should carry out internal audit of its accounts by chartered accountants. The Act has not so far made it compulsory for limited companies to carry out internal audit, although listed companies, by virtue of the clause in the listing agreement relating to corporate governance, are to have a full-scale internal audit system.
Resolution of disputes: Any dispute relating to the formation, management or business of producers companies is to be settled by conciliation or by arbitration under the Arbitration and Conciliation Act, 1996 as if the parties to the dispute have consented in writing to such procedure. The arbitrator's decision shall be final. This seems to be inequitable since usually an arbitration award can be appealed against in high courts.
Inter-State cooperative societies
With objects not confined to one State may make an application to the Registrar for recognition as producer companies. The statute also provides for reconversion of such producer companies to their former status as inter-State cooperative societies subject to the approval of High Court.
In conclusion, it is to be noted that "all the limitations, restrictions and provision of the Act, other than those specified in Part IXA, applicable to a private limited company, shall, as far as may be, apply to a producer company, as if it is a private limited company under the Act in so far as they are not in conflict with the provisions of this Part.'' In other words, a producer company is a hybrid between a private limited company and a cooperative society
About Author / Additional Info:
I am currently pursuing PhD (Agricultural Extension Education) at ICAR-NATIONAL DAIRY RESEARCH INSTITUTE, Karnal-132001, Haryana (INDIA).