Company & directors penalised for non-appointment of woman director

ROC, Delhi penalizes Company & directors for non-appointment of mandatory woman director 

1. ROC, Delhi imposes a penalty of Rs. 4.76 lakh on a Company and its Directors for non-appointment of woman Director, in violation of Sec. 149 of the Companies Act, 2013 r.w. Rule 3(ii) of the Companies (Appointment and Qualification of Directors) Rules, 2014.

2. Rule 3 of Companies (Appointment and Qualification of Directors) Rules, 2014 mandates that the following classes of companies shall appoint at least one woman director –

(i) every listed company

(ii) every other public company having –

(a) Paid-up share capital of one hundred crore rupees or more, or

(b)Turnover of three hundred crore rupees or more.

(iii). RoC observed that that the proviso to Sec. 149 provides that such class or classes of companies as may be prescribed, shall have at least one women director, and that the Company in the present proceedings has paid up share capital of more than Rs. 100 cr.

(iv). Accordingly, in light of the non-compliance, Registrar held that the Company and its officers in default are liable for penalty u/s 172 of the Act for the 251 days of non-compliance and directs the Company and its Directors to rectify the default immediately.

FULL TEXT OF THE ROC DELHI ORDER IS AS FOLLOWS:-

GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS,
OFFICE OF REGISTRAR OF COMPANIES,
NCT OF DELHI & HARYANA
4111 FLOOR, IFCI TOWER, 61, NEHRU
PLACE, NEW DELHI -110019

No. ROC/D/Adj/2022/Section 149(1)/ 5728-5731

Dated: 28.09.2022

Order for Penalty for Violation of Section 149(1) of the Companies Act, 2013

IN THE MATTER OF

JHABUA POWER INVESTMENTS LIMITED
(U74999HR2005PLC084204)

Adjudication in respect of violation of Companies Act, 2013.

1. Appointment of Adjudicating Officer: –

Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad.II, dated 24.03.2015 appointed undersigned as Adjudicating Officer in exercise of the powers conferred by section 454(1) of the Companies Act, 2013 (hereinafter known as Act) r/w Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.

2. Company:-

Whereas the company viz JHABUA POWER INVESTMENTS LIMITED (herein after known as ‘company’) is a registered company with this office under the provisions of the Companies Act, 1956 having its registered office as per MCA21 Registry at address GROUND FLOOR, TOWER C FIRST INDIA PLACE„MEHRAULI GURGAON ROAD,GURURGAM,Gurgaon,Haryana,122002,India.

3. Law relating to Appointment of Women Director in company : –

Section 149:

(1) Every company shall have a Board of Directors consisting of individual as directors and shall have-

(a) A minimum number of three directors in the case of a public company, two directors in the case of a private company, and one director in the case of a One Person Company; and

(b) A maximum of fifteen directors:

Provided that a company may appoint more than fifteen directors after passing a special resolution:

Provided further that such class or classes of companies as may be prescribed, shall have at least one women director.

Rule 3 of the Companies (Appointment and qualification of Directors) Rules, 2014:

The following class of companies shall appoint at least one woman director-

(i) Every listed company

(ii) Every other public company having-

(a) Paid-up share capital of one hundred crore rupees or more; or

(b) Turnover of three hundred crore rupees or more:

Provided that a company, which has been incorporated under the Act and is covered under provision of second proviso to sub-section (1) of section 149 shall comply with such provisions within a period of six months from the date of its incorporation:

Provided further that any intermittent vacancy of a women director shall be filled-up by the Board at the earliest but no later than immediate next Board meeting or three months from the date of such vacancy whichever is later.

Explanation- For the purposes of this rule, it is hereby clarified that the paid-up share capital or turnover, as the case may be, as on the last date of latest audited financial statements shall be taken into account.

4. Facts about the Case: –

a) As per the Financial Statements filed by the company its Paid up share capital and turnover as on 31.03.2021 is as under:-

Paid up Share Capital	Rs. 6902941000/-
Turnover	Rs. NIL

(b) Date given in the Auditor’s Report is 25.11.2021

c) The company is clearly required to appoint a woman director based on Rule 3(ii) of Companies (Appointment and qualification of Directors) Rules, 2014 as the paid up capital of the company is more than 100 Crore.

d) A Show Cause Notice was issued to company and officers in default on 03.08.2022 in this regard. However, as per this office records as on date, neither the company has appointed a woman director nor furnished any reply.

5. Penalty Provision for violation : Non compliance of section 149 r/w Rule 3 of Companies (Appointment and qualification of Directors) Rules, 2014 would give rise to liability under section 172 which read as under:

Section 172:

If a company is in default in complying with any of the provisions of this Chapter and for which no specific penalty or punishment is provided therein, the company and every officer of the company who is in default shall be liable to a penalty of fifty thousand, and in case of continuing failure, with a further penalty of five hundred rupees for each day during which such failure continues, subject to a maximum of three lakh rupees in case of a company and one lakh rupees in case of an officer who is in default.]

6. Adjudication of penalty: –

It is evident that the company has not complied with the provision of appointment of women director and therefore, the company and its officer in default are liable for penalty u/s 172.

As per explanation to Rule 3 of Companies (Appointment and qualification of Directors) Rules, 2014 the paid up capital is being reckoned from the next date of latest audited financial statement i.e. one day after 25.11.2021 (date of auditor report) and the period of default would continue till the issue of Show Cause Notice on 03.08.2022 (this period is referred as default period). For the purpose of determination of penalty, the following table is to be considered:-

Sl.No.	Name of Officer in default	Duration during which the officer served in the company during default period	No. of days of default
1	Anil Bhargava	26.11.2021 to 03.08.2022	251
2	Ashok Sing Yadav	26.11.2021 to 03.08.2022	251
3	Chiranjiv Singh	26.11.2021 to 03.08.2022	251

Accordingly the calculation of penalty is given as under:

Violation section	Penalty imposed on company/ director(s)/KMP s	No. of days of default	Initial Penalty	Penalty for continuing default	Total Penalty imposed by the adjudication officer u/s 172 of Companies Act, 2013 (D+E) (subject to a maximum of 3 lakh rupees in case of a company and 1 lakh rupees in case of an officer who is in default.)
A	B	C	D	E	F
u/s 149 (1) of the Companies Act, 2013	On company	251	50000/-	125500/-	176000/-
	Anil Bhargava	251	50000/-	125500/-	100000/-
	Chiranjiv Singh	251	50000/-	125500/-	100000/-
	Ashok Singh Yadav	251	50000/-	125500/-	100000/-

7. Order:

a. The company and its directors are hereby directed to pay the penalty amount as per column no. ‘F’ of above Table. In case of directors such amount is required to be paid out of their own funds.

b. The company and its directors are hereby directed to rectify the default immediately from the date of receipt of copy of this Order.

c. The noticees shall pay the said amount of penalty through online by using the website www.mca.gov.in (Misc. head) in favor of “Pay & Accounts Officer, Ministry of Corporate Affairs, New Delhi, payable at Delhi, within 90 days of receipt of this order, and intimate this office with proof of penalty paid.

d. Appeal against this order may be filed with the Regional Director (NR), Ministry of Corporate Affairs, B-2 Wing, 2nd Floor, Pt. Deendayal Antyodaya Bhawan, CGO Complex, Lodhi Road, New Delhi-110003 within a period of sixty days from the date of receipt of this order, in Form ADJ [available on Ministry website www.mca.gov.in] setting forth the grounds of appeal and shall be accompanied by a certified copy of the order. [Section 454(5) & 454(6) of the Act read with Companies (Adjudicating of Penalties) Rules, 2014].

e. Your attention is also invited to section 454(8) of the Act in the event of non­compliance of this order.

Place: New Delhi.
Dated:

(Pranay Chaturvedi)
(Adjudicating Officer)
Registrar of Companies,
NCT of Delhi & Haryana

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