According to Section 2(24) of the Companies Act, 2013, “Company Secretary” or ‘Secretary’ means a company secretary as defined in clause (c) of Sub-section (1) of Section 2 of the Company Secretaries Act, 1980 and who is appointed by a company to perform the functions of a company secretary under this Act.
According to clause (c) of Sub-section (1) of Section 2 of the Company Secretaries Act, 1980, a company secretary means a person who is a member of the Institute of Company Secretaries of India.
Apart from certain general secretarial duties to be performed, there are some statutory specified specific duties that need to be performed by a Company Secretary, and they are as follows:
1. Declaration regarding compliance with registration formalities : As per Sec. 7(1)(b) of CA’13, along with submitting MoA, and AoA, a company also needs to submit a dule declaration along with the same that all the necessary requirements w.r.t registration has been complied, and the same must be signed either by an Advocate, or Chartered Accountant, Cost Accountant, or a Company Secretary in practice who is engaged in such formation of company and whose name is there as manager, director or secretary in such Articles.
2. Authenticating documents, proceedings as well as contracts: Authentication is a form of attestation that the documents comply with all the required laws, and that the person so certifying is the one who has been appointed to do so, and such documents may be signed by any Key Managerial Personnel, or officer or employee of the company authorized by the Board, as per Sec. 21 of CA’13.
3. Signing Share Certificate: Such certificates need to be signed by two directors, out of which one has to be WTD or ID, if appointed, and Secretary or other such person as has been appointed by the Board.
4. Signing of Annual Return: As per Sec. 2(1), Annual Return needs to be filed with Registrar of Companies, with signature of director and a company secretary, and if the company don’t have a CS, then to be signed by a CS in Practice.
5. Signing of Annual Financial Statements: As per Sec. 134(1), the financial statements need to be signed on behalf of board by chairperson of company, or by two directors out of which one to be MD and the other being CEO (if he is a director), the CFO, and the CS, wherever they stand appointed.
6. Appearing before NCLT: A CS can appear before NCLT on behalf of his/her company, as per Sec 432.
7. Secretary of Audit Committee: A CS has to be a secretary of such audit committee as required to be formed by the applicable listed companies, as per the SEBI Regulations under listing obligations.
8. Compliance officer of the Company: Pursuance to Regulation 6 of SEBI (LODR) 2015, a listed company needs to appoint a CS as a compliance officer for looing after the following compliances: Ensuring conformity with all the regulatory laws as well as rules in due spirit and letters of law, Co-ordinating and reporting with Board, Stock Exchanges, Depositories, and such other entities or regulators with respect to the company specific compliance with such rules and regulations as have been prescribed or framed by such authorities from time to time, Ensuring that the procedure followed is correct to ensure authenticity as well as comprehensiveness of the reports and information filed by such listed entity, Monitoring the e-mail address of the company on time-to-time basis for ensuring that all the grievance redressal mechanism is followed for ensuring the protection and rights of investors.
9. Demat Shares: A CS has to co-ordinate between stock exchange and depository in case of demat shares.
10. Additional Duties: In addition to such statutory duties, he or she might be provided with certain additional duties w.r.t personnel, finance and administration matters, that depend on company-to-company basis.
Liabilities of a CS can be divided into two ways:
1. Statutory Liabilities (some of which are mentioned below):
1. Default in complying with name requirements: Fine of Rs. 1000 every day not exceeding Rs. 1 Lakh till such default continues.
2. Default in filing return on allotment: Fine of Rs. 1000 every day during such default persists or Rs. 1 Lakh, whichever is less.
3. Default in delivering Share or Debenture Certificates: fine upto Rs. 5 Lakh.
4. Default in filing Annual Return: Fine ranging from Rs. 50,000 to Rs. 5 Lakh.
5. Default in holding AGM: Fine upto Rs. 5000 during which such default persists, extending upto Rs. 1 Lakh.
6. Failure to maintain registers of members: Fine ranging from Rs. 50,000 to Rs. 3 Lakh.
7. Other liabilities as are provided under provisions of Companies Act of 2013.
2. Contractual liabilities (some of which are mentioned below):
1. Liable for negligence on part of his or her duty.
2. Liable for breaching or exceeding his or her authority.
3. Liable for disclosing any secret information of the company to outsiders.
4. Liable for earning secret profits on account of his position.
5. Liable for fraud
6. Any other such contractual duties for which to be held liable as specified in provisions of Companies Act of 2013.
Apart from the same, a CS is also defined as an ‘officer in default’ along with MD, WTD, etc, and therefore can be punished under respective offences.
Can also be punished as a KMP, as per certain provisions of Companies Act of 2013.
Moreover, if a case is filed against a company or corporation, then a summon can also be served on a CS, apart from director or other principal officer of the company or on the registered office of such company, as per Order 9 Rule 2 of Civil Procedure Code of 1908.
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Disclaimer:- The entire contents of this document have been prepared on the basis of relevant provisions and rules and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information.
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