Introduction:
Since inception of the provisions of appointment of Whole Time Company Secretary is being treated as a significant position in a company. As per the Companies Act, 1956 Companies having paid-up capital 5 Crores or more was required to compulsorily appoint a CS in Whole time employment.
The Companies Act, 2013, in fact, has uphold the position of a CS in whole time employment and increased their responsibilities by designing this position as a Key Managerial Person (Herein after referred as KMP) along with MD,CEO,WTD, CFO.
Notification No. G.S.R. 390E issued dated on 9th June 2014 by MCA mandates a company having paid up capital of Rs. 5 Crores or more shall appoint a Whole Time Company Secretary (Hereinafter referred as ‘CS’). It is noteworthy to mention here that apart from CS, all other KMPs are applicable in case of company having paid up capital of Rs. 10 Crores .
(At the initial time of implementation of Rules the limit was 10 Crores & then amended by bringing down this limit for CS to 5 Crore,)
Section 203 of the Companies Act, 2013 read with rule 8 of Rules The Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 which has a paid up share capital of five crore rupees or more shall have a whole-time company secretary.”
Section 205 (1) has further prescribed the functions of Company Secretary. Both the provisions of Section 203 & 205 has been notified Notified Dated on 01/04/2014
In SEBI Act too the importance of a CS has been respected. If the Company is a Listed Company or going to be listed shortly then the Company shall appoint a CS for complying all applicable SEBI Rules. SEBI (LODR) 2015 has mandated to keep a CS as the Compliance officer of the Company.
Functions of a CS in Whole Time Employment:
Section 205. defines the core functions of a CS. Accordingly the function are as below:
(1) Compliance with applicable laws;
(2) Comply with Secretarial Standard;
(3) Guidance to the Board and Directors (collectively and individually);
(4) Convene , attend, Board, Committee Meetings;
(5) To obtain required approval of the Board / shareholders;
(6) Represent the Company to various authorities;
(7) To assist the Board in conducting affairs
(8) To assist and advise the Board in ensuring good corporate governance and in complying with the corporate governance requirements and best practices; and
(9) To discharge such other duties as have been specified under the Act or rules; and
(10) Such other duties as may be assigned by the Board from time to time.
Other Duties normally performed by a CS:
11. A CS in Whole Time Employment look after compliance all the Corporate Laws applicable to that Company;
12. A CS looks after the fund requirements of the Company and analyze, decides and supervise the procedure to avail necessary funds for the requirements of the Company;
13.They maintain relations with the Financials Institution(s) from which the company avails financial facilities and comply with the various pre and post Loan disbursements formalities/Compliances;
14. Along with other KMPs a CS is empowered to authenticate documents of the Company.
15. Maintains the Intellectual Properties of the Company.
16. To keep themselves updated about various latest development of Government Policies and update the board on time.
17. Maintains relation between stakeholders and Board
18. Dispute resolution amongst Board members
IMPORTANCE OF A CS:
We can broadly clarify the Indian Corporates in categories:
1. Family managed Company;
2. Professionally managed Company;
Family Managed Company:
Traditionally in India the Business houses are owned and managed by close family members. Though the concept of Professional Board has well been accepted as a right way to look after the business and growth , but still the control of the major corporate houses are kept at the hand of the few trusted family men.
In this situation it is always expected that there must be someone who know the law and procedure of compliance of various provisions applicable to that Company to protect the company and to advise the Board every time regarding strategic planning and compliance requirement of the transactions.
The main purposes of appointing a CS is to advise the Board of the Company collectively, as well as Individually, regarding the need of fulfilling the various statutory compliance on time and in proper manner and to minimize the risk.
A Whole Time CS is responsible for ensuring the fulfillment of various compliance with statutory and regulatory understanding and thereby fulfilling the need of building a Complied Corporate Environment in India.
Professionally managed Company:
In a professionally managed Company the position of a CS is equally important. He remains available to advise the Board on compliance need of various transactions and advise the Board.
1. Specialty of CS:
Perhaps “CS” is the only professional in India which is generously dedicated to look after the fulfilling various compliance need and reporting requirements with various Government agencies, as and where requited in line with the requirement of the Law of Land.
2. CS A KMP:
The Companies Act, 2013 (Hereinafter referred as ‘Act’) has given the status of Key Managerial Person (Hereinafter referred as ‘KMP)to a Whole Time Company Secretary. Accordingly to the act following classes of Companies shall have to appoint a Whole Time CS:
a paid up share capital of five crore rupees or more shall have a whole-time company secretary.”
However, it is always advisable to keep a CS in all types of Company to look after it’s long term growth and risk minimization.
3. Special status of Whole Time CS, amongst KMPs:
The importance of CS in whole time employment can be seen from the fact that amongst all KMPs this is the only position in which a special education, in the form of Membership of ICSI, has been mandated.
The legislators has kept their confidence on the membership of the ICSI as the crucial criteria to be appointed as a ‘CS’ in a Company having paid up capital is more than 5 Crores.
Further, If the office of any whole-time key managerial personnel, including CS is vacated, the resulting vacancy shall be filled-up by the Board at a meeting of the Board within a period of 180 days from the date of such vacancy.
4. ‘CS’- the Conscious Keeper of the Company:
A CS is being treated a conscious keeper of a Company. He/ she has to keep his/ her ears open , so that all required compliances, due diligence are to be done with due expertise, as and when required. It is his/her responsibilities to take pragmatic steps to keep the company fully compliant.
It is also their primary responsibility to keep themselves abreast of all the legal requirement/developments/amendment, latest development of Government Policies and update the board on time.
5. CS –The Officer of the Board of the Board:
A CS , being an officer of the Board present himself/herself at the Board Meetings . He/ she specifically ensure that decisions of the board of directors are duly implemented and co-ordinates with various department of the Company.
6. Difference between a ‘CS’ with other Like minded Professional like Advocates/CA:
Difference between CS and Advocates/Lawyer:
A lawyer is the member of Bar Council of India and regulated by them whereas a CS is a member of Institute of Company Secretaries of India (ICSI) ,Theses are two completely different Professional and domain. Advocates are normally looking after Court proceedings, whereas a Whole Time CS is the in-house Governance Professionals and look after all the day to day Statutory formalities and advising.
A Lawyer appears before the various Court , on behalf of the Company, and can argue on behalf of his clients in court cases whereas a CS co-ordinates with the Lawyer as Company Representative and principle officer.
Difference between CS and CA:
A CA is the member of Institute of Chartered Accountants of India (ICAI) and regulated by them whereas a CS is a member of Institute of Company Secretaries of India (ICSI) . A CA is treated as an expert in Auditing techniques of Financials and Taxation, having expert knowledge in Accounting , Taxation etc., whereas a CS is being treated as Compliance and Governance Professionals having expertise in Companies Act and other Corporate Laws.
HINDRANCES:
It is the responsibility of the Corporates to select a suitable candidate as CS and to adhere his/ her advice as given to the Board from time to time. He/she must be given scope to directly interact with the Board. As they are holding special education and training in the form of a membership of ICSI, the board must keep faith on the ability of the person, which in long term can save the company from statutory non- compliances, managing risk.
It is experienced that as a key members of KMPs the CS automatically become a party to all legal non- compliances, litigations, whether the offence occurs with his knowledge or not. Therefore it is the responsibility of the Board to include them in all the core teams of strategic planning, due diligence and implementations.
Note: This article is the updation of my previous article published dated December 5, 2017 titled ‘Importance Of Whole Time Company Secretary (CS)’
(Author can be reached at Email Id : pjlawsolution@yahoo.in & Mobile : +91-9899797126)
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Nice article Sir..