CS Divesh Goyal

As we are aware that MCA has issued a Notification dated 30th June, 2016 Companies (Appointment and Remuneration of Managerial Personnel) Amendment Rules, 2016 and made some major amendments in Rule 5 “Disclosure in Board’s Report -remuneration of employees”.

BACKGROUND:

Many professionals have been raising two questions on interpretation of applicability of the Rules:-

i. If Company is not falling in limit of Rule 5(2) (a,b,c), whether company have to disclose the name of top 10 employees or not in the Board’s Report?

ii. Whether all the Companies have to disclose in the Board’s report, the information regarding remuneration of employees and other details as given in Rule 5(2) OR only listed companies have to disclose?

Let’s first discuss the first question:

Whether Company have to disclose the name of top 10 employees if no employee is falling in limit of Rule 5(2) (a,b,c). Some people hold a view that Company have to disclose in directors’ report regarding name of top 10 employees only when those employee fall in criteria of Rule 5(2) (a,b,c). One of the arguments put forth by the people supporting the first school of thought where no employee is receiving salary as give in rule 5. Employees are getting minimal salary in thousands then it doesn’t affect the interest of stake holder therefore no need to disclose.

Statutory Provisions Contained Under the Act:

Provisions of the Companies Act, 2013 to the extent relevant for our discussion, are stated as under (with necessary comments and modifications, wherever felt necessary)

1. As stated in Section 134(3)(q): The Company shall attach to the financial statement laid before a company in general meeting, a report by its Board of Directors, which shall include such other matters as may be prescribed.

Section 134 states that if anywhere in the Companies act, its mentioned that Company will disclose such details in director Report then Company shall have to comply the same and have to disclose such details in Directors’ Report.

2. As stated in Section 197(12): Every Listed Company shall disclose in the Board’s report, the ratio of the remuneration of each director to the median employee’s remuneration and such other details [1]*as may be prescribed.

Language of Law: [2]Rule 5(2) of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 states that the board’s report shall include a statement showing [3]

i. the names of the top ten (10) employees in terms of remuneration drawn

AND

ii. the name of every employee, who-

a. if employed throughout the financial year, was in receipt of remuneration for that year which, in the aggregate, was not less than one crore and two lakh rupees (1.02 Crore p.a.);

b. if employed for a part of the financial year, was in receipt of remuneration for any part of that year, at a rate which, in the aggregate, was not less than eight lakh and fifty thousand rupees per month (8.5 lac p.m.)

c. if employed throughout the financial year or part thereof, was in receipt of remuneration in that year which, in the aggregate, or as the case may be, at a rate which, in the aggregate, is in excess of that drawn by the managing director or whole-time director or manager and holds by himself or along with his spouse and dependent children, not less than two percent of the equity shares of the company

Interpretation Note:

Therefore, as per the language of Rule 5(2) Company have to give details of two type of employees:

I. the names of the top ten employees in terms of remuneration drawn; and (“here after referred as ‘Class I’ employees)

II. the name of every employee, who receive remuneration as mentioned above(“here after referred as ‘Class II’ employees)

There may be situation when employees of class II includes in Class I or vice versa.

Example: If there is situation when no employee of the Company received the remuneration as per limits given in class II employees in such situation whether company required to give details of top 10 employee if the Company in Board Report.

YES, as the rule 5(2) used the word AND between both the sentence. It is clear that Company have to give details of top 10 employees in Directors’ Report.

CONCLUSION

Whether employees receiving or not receiving remuneration as full time (1.02 crore p.a.), part of the financial year (8.5 lac p.m.) etc.  Company has to disclose name of top 10 employees in its Board of Directors’ Report.

Let’s first discuss the SECOND QUESTION:

Whether only listed Company required disclosing in the Board’s report, the information regarding remuneration of each employee and other details or all the Companies required disclosing.

Some people hold a view that all the Companies required to disclose such information in Directors Report. One of the arguments put forth by the people supporting the first school of thought that rule 5(2) starts with word BOD shall include statement showing the name of every employee of the ‘COMPANY’. It’s not mention the every listed Company as mentioned in rule 5(1). Therefore, its applicable on all the Companies according to them.

It was beyond doubt that the Rule 5 was made pursuant to sub-section (12) of Section 197 and was applicable only in case of Listed Companies. However, due to drafting anomalies, there was one school of thought that some clauses of sub-rule (1) of Rule 5 and the sub-rule (2) of Rule 5 applies to all companies.

In an attempt to bring clarity and remove drafting infirmities, on 30th June, 2016, the Central Government came out with several amendments to Rule 5 and also enlarged its scope; mainly of sub-rule (2) of Rule 5.

Statutory Provisions Contained Under the Act:

Provisions of the Companies Act, 2013 to the extent relevant for our discussion, are stated as under (with necessary comments and modifications, wherever felt necessary)

As stated in Section 197(12): Every Listed Company shall disclose in the Board’s report, the ratio of the remuneration of each director to the median employee’s remuneration and such other details [4]*as may be prescribed.

Preamble to the Remuneration Rules is as under:

“In exercise of the powers conferred under sub-section (4) of section 196, sub-section (5) of section 197, sub-section (12) of section 197, section 200, sub-section (1) of section 198, sub-section (1) of section 203, sub-section (1) of section 204 and sub-section (1) of section 205 of the Companies Act, 2013,read with sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013) and in suppression of the Companies (Central Government’s) General Rules and Forms, 1956 or any other relevant rules prescribed under the Companies Act, 1956 (1 of 1956) on matters covered under these rules, except as respects things done or omitted to be done before such suppression, the Central Government hereby makes the following rules, namely:-“

Disclosure in Board’s report:-

Rule 5(1) Every listed company shall disclose in the Board’s report-

1. the ratio of the remuneration of each director to the median remuneration of the employees of the company for the financial year;

2. the percentage increase in remuneration of each director, Chief Financial Officer, Chief Executive Officer, Company Secretary or Manager, if any, in the financial year;

3. the percentage increase in the median remuneration of employees in the financial year;

4. the number of permanent employees on the rolls of company;

5. average percentile increase already made in the salaries of employees other than the managerial personnel in the last financial year and its comparison with the percentile increase in the managerial remuneration and justification thereof and point out if there are any exceptional circumstances for increase in the managerial remuneration;

6. the key parameters for any variable component of remuneration availed by the directors;

7. affirmation that the remuneration is as per the remuneration policy of the    company.

Rule 5 is made pursuant to sub-section (12) of section 197

In the list of statutory provisions stated above, preamble has also been listed out as a key aid for interpretation. Why so? “The preamble of statue has been said to be a good means to find out its meaning, and, as it were, a key to the understandings of it, and as it usually states, or professes to state, the general object and intention of the Legislate in passing the enactment, it may legitimately be consulted for the purpose of solving any ambiguity or of fixing the meaning of words which may have more than one, or of keeping the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt.”

Further, it is settled principle that normally the opinion of the authority concerned that the rule made by it is necessary to carry out the purposes mentioned in the Act and when this opinion is recited in the preamble to the Rules, it should be greatly respected. In the preamble of the Rules, it is being mentioned from very beginning that they are made under various sections including the one we are concerned with as regard the powers intended to be exercised by the Central Government i.e. sub-section (12) of section 197. Therefore, there doesn’t seem to be any justification to enlarge the authority and intent of the Central Government.

In other words, no doubt that the Central Government has wide powers to frame rules pursuant to Section 134, however, it is evident from the reading of preamble to Remuneration Rules and Account Rules that the Rule 5 of the Remuneration Rules has not been framed pursuant to powers vested by the legislature under section 134; it is made pursuant to powers vested by virtue of Section 197(12). In fact, the Central Government has framed Rule 8 of the Account Rules pursuant to Section 134.

Thus, irrespective of what powers the Central Government has under Section 134, Rule 5 of Remuneration Rules can not go beyond the express powers stipulated in sub-section (12) of Section 197 and hence, Rule 5 shall apply only to Listed Companies.

It is worth noting that the Central Government understood these drafting infirmities and brought out several changes in Rule 5 as could be seen from the number of deletions being made in sub-rule (1) of Rule 5 and deletion as well as minor additions made in sub-rule (2) of Rule 5. Even in absence of these amendments made w.e.f June 30, 2016, the legal position would have remained to be the same.

Rule 5(2) already discussed above in question no.1.

Drafting Infirmities and Ambiguities Rectified Vide Amendment Dated June 30, 2016

Sub-rule (1) of Rule 5 begins with the words “Every listed company shall disclose in the Board’s report….” whereas sub-rule (2) of Rule 5 uses the words “the board’s report shall include a statement showing [5][the names of the top ten employees in terms of remuneration drawn and the name of every employee, who—]

Here, it is pertinent to apply the rule of contextual interpretation. In Reserve Bank of India case (supra), the Apex Court ruled that interpretation must depend on the text and the context and if the text is the texture, context is what gives the colour, therefore, neither can be ignored. The interpretation is best which makes the textual interpretation match the contextual. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.[6]

Sub-rule (2) of Rule 5 has to be read in context of sub-rule (1) and sub-section (12) of Section 197. Further, wordings of sub-rule (2) of Rule 5 has gone through vast changes vide June 30, 2016 amendment and considering the present wordings of sub-rule (2) of Rule 5 it can be safely held that the sub-rule (2) applies only to listed companies.

To further strengthen the arguments made above, we may consider to see the wordings with which sub-rule (2) of Rule 5 used to start before the amendment dated June 30, 2016, which is reproduced as under:

“The board’s report shall include a statement showing the name of every employee of the company, who”

It is worth pointing out that vide amendment dated June 30, 2016 the Central Government has explicitly deleted the words “of the Company” in sub-rule (2) of Rule 5, to get rid of the drafting infirmity which was existing prior to the said amendment.

Perhaps, there was some confusion in the mind of few, due to the use of the word “Company” in sub-rule (2) as against the use of the word “Listed Company” in sub-rule (1) of Rule 5; further, erstwhile clause (vii) of sub-rule (1) of Rule 5 required even an unlisted company to state the variations in the net worth of the company as at the close of the current financial year and previous financial year. The said clause (vii) of sub-rule (1) of Rule 5 has also been deleted vide amendment dated June 30, 2016.

All these changes in the Remuneration Rules w.e.f. June 30, 2016 indicate the correct legal position in so many words and thereby, brings in much needed clarity.

LITERAL RULE OF INTERPRETATION

Before we discuss this issue at length, it may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule.

The literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says “this is a pencil”, then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.[7]

Interpretation Note:

As per the section 197(12) specifically mentioned the word “Every Listed Company”

shall disclose in directors report ration of remuneration and such other details. These other details are stated in rule 5. Rule 5 is given in this chapter only because it refer/complete in 197(12).

Therefore, it is clear that Governing/ charging section of Rule 5 is section 197(12). As per literal rule of interpretation if section 197(12) applicable only on the Listed Companies then rule 5 shall also applicable only on the listed Companies. Even in Rule 5(1) also mentioned that “every listed” Company. Only rule 5(2) not mentioned the word “Every listed Company”.

CONCLUSION

In view of legal position as discussed above, it is clear that the provisions of Rule 5 applies only to listed companies. In reality, the amendment dated June 30, 2016 has brought out the much needed changes in the Rule 5 and has removed various drafting infirmities. Thus, the mandate of sub-rule (1) and sub-rule(2) of Rule 5 does not create any issues at all for the unlisted companies as it doesn’t apply to them.

[1] Details are prescribed under Rule 5 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014

[2] Rule of Section 197

[3] substituted vide MCA notification date 30.06.2016

[4] Details are prescribed under Rule 5 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014

[5] substituted for “the name of every employee of the company, who—” by the Companies (Appointment and Remuneration of Managerial Personnel) Amendment Rules, 2016, w.e.f. 30-6-2016.

[6] Referred to in Reliance Industries Ltd. and Anr.Vs. State of Maharashtra and Ors. (Bombay High Court) [2006] MANU/MH/0265/2006

[7] B. Premanand and Ors.Vs. Mohan Koikal and Ors. (SC 2011) MANU/SC/0249/2011 –Para 33.

(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)

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