In my previous write up “Appointment of a Company Secretary as per Companies Act, 2013” had discussed about Who is a company secretary and who need needs a company secretary and company secretary appointment obligation on companies. In regard of that article I received multiple calls and emails.
Appointment of a Company Secretary has been one of the most talked topics in the recent times as Companies not just appoint them because there is a statutory requirement for a few class of the company including listed companies or company having paid-up capital more than the prescribed limited but due to the reason or the compliance to file E- form INC 22A. While Filing From 22-A, The Ministry of Corporate Affairs is insisting for compliance of appointment of Company Secretary for companies that has paid up capital of Rs.5 Crore of more. So, it becomes a mandatory condition for appointment of Whole time Company Secretary by Companies with paid up capital of Rs.5 Crore more.
For much more clarification we shall discuss in detail about CS (Company Secretary) Appointment in companies incorporated in India, as Introduction of Form INC 22A has created a problem for companies those which are in Non Compliance of Rule 8A of Section 203 of Companies Act, 2013 due to which now companies are forced to appoint company secretary, to file E-form INC 22A else there company can become inactive due to Non-Compliance. Therefore Companies having paid up capital more that 5 crore and have not appointed a Company Secretary (CS) will not be able to file form INC 22 A.
DEFINITION OF COMPANY SECRETARY:
As per Section 2 sub-section 24 of 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 who is appointed by a company to perform the functions of a Company Secretary under this Act;
AS PER COMPANY SECRETARIES ACT, 1980:
“Company Secretary” means a person who is a member of the Institute of Company Secretaries of India.
The requirement to appoint a Company Secretary in Private Limited Company is governed by the Provision of Rule 8A and in Public / Listed Company by the provisions of Rule 8 of The Companies “Appointment and Remuneration of Managerial Personnel” Chapter XIII under Section 203 of the Companies Act, 2013.
WHO IS REQUIRED TO HAVE COMPANY SECRETARY/ KMP?
All listed company and all other company having paid-up share capital of Rs. 5 crore or more shall have whole-time Company Secretary.
|Company having Paid Up capital less than 5 Crore||It is OPTIONAL to appoint a Whole Time Company Secretary|
|Company having Paid Up capital More than 5 Crore||It is MANDATORY to appoint a Whole Time Company Secretary|
TIME PERIOD FOR SUCH APPOINTMENT OF COMPANY SECRETARY?
The Companies Act 2013 does not provide the period wherein the Company has to designate Company Secretary as (KMP) key managerial personnel. But it is advisable to appoint a Company Secretary as KMP in the first board meeting which is to be conducted after applicability of such a provision.
But if there is Casual Vacancy: Vacancy must be filled in 6 months.
WHO IS A COMPANY SECRETARY?
Company Secretary is the person who is a member of the (ICSI) Institute of Company Secretary of India appointed by the company to perform the functions of the Company Secretary.
A company secretary is a principally an employee even though he holds very high rank. He / She may be the Chief Executive & then his position is near to those of the directors. In reality, he is the only employee who has advisory powers.
CS advice is pursued in carrying out general administration and in the decision-making process at the time of framing policies of the company. He is consulted to determine the lawful suggestions of policy decisions. Therefore, he/she is the only outsider who is present at the Board meetings.
PROCESS FOR APPOINTMENT OF COMPANY SECRETARY
THE THREE MAIN AREAS, A COMPANY SECRETARY, HAVE THE ROLE TO PLAY VIZ.
1. To the Board,
2. To the Company, and
3. To the Shareholder.
APPOINTMENT OF COMPANY SECRETARY – OFFENCE & PENALTY [SECTION 203(5)
If a company contravenes the provisions relating to appointment of whole-time key managerial personnel (which includes company secretary), the company shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees and every director and key managerial personnel of the company who is in default shall also be punishable with fine which may extend to one thousand rupees for every day after the first during which the contravention continues.
DRAFT FORMAT OF BOARD RESOLUTION: APPOINTMENT OF COMPANY SECRETARY
“RESOLVED THAT pursuant to provisions of section 203 of Companies act 2013 and Rule 8 and Rule 8A of Companies appointment & remuneration of Managerial Personnel Rules 2014), Mr……………………………….. company secretary (ACS/FCS no …………..) be and is hereby appointed as the whole time Company Secretary of the company with effect from (date) on such terms and conditions as decided and agreed by and between the Board and Company Secretary.
“FURTHER RESOLVED THAT Mr………………………… director of the company be and is hereby authorized to file necessary eforms and documents with Registrar of the Company and to do all other such acts Deeds and things which are necessary to give effect to above resolution.”
(Author be Contacted at [email protected] & +91-7021848742 : CS Annu Sharma for any discrepancy.)