CS Divesh Goyal

Definition of Company Secretary:

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 Secretary Act, “Company Secretary” means a person who is a member of the Institute of Company Secretary of INDIA.

In this article I will discuss the following below mention topics:

1. Appointment of Company Secretary as Per Companies Act, 2013

2. If a company already have Company secretary then Designate him as Key Managerial Personnel (KMP).

A. DESIGNATION OF COMPANY SECRETARY AS KMP, IF COMPANY ALREADY HAVE A COMPANY SECRETARY:-

Private Limited Company:

Requirement to appoint Company Secretary in Private Limited Company govern by the Provision of Rule- 8A of ‘The Companies  Appointment and Remuneration of Managerial Personnel, Rules 2014′ Chapter XIII.

Time Period: The Act doesn’t provide the time period in which a Company have to designate Company Secretary as KMP. But it’s advisable to appoint a Company Secretary as KMP in first board meeting conduct after applicability of such provision. In this Case Rule 8A come into force from 9th June, 2014.

Process to Designate as KMP: Below given is process:

I. Call Board Meeting: Pass a Board Resolution for designation of Company Secretary as KMP as per section 203.

II.  Consent to act as KMP: Receive consent from Company Secretary to act as KMP.

III. Filling of Form with ROC:

MGT-14:  As per provision of Section 179 (3) Rule 8(2): Company require to file MGT- 14 along within 30 days of passing of Board Resolution with, [Attachment: Consent Letter and CTC of Board Resolution].

MR-1: As per Rule 3 of Chapter XIII: Company required filing MR-1 at the time of appointment of KMP within 60 days of passing of Board Resolution, with [Attachment: CTC of Board Resolution and Consent Letter)

Note:

i. As per Section 170 (2) there is needed to file form DIR-12 for any change in particular of Director or KMP. So in the above case change is designation of KMP and director. But practically it’s not possible to file e-form DIR-12 for change in particular. If we will try to file same then MCA will not accept the same.

ii. Above mention resolution for designation as KMP can’t pass as Resolution by Circulation. There is need to hold Board Meeting for the same.

Public Limited Company:

Requirement to appoint Company Secretary in Private Limited Company govern by the Provision of Rule- 8 of ‘The Companies Appointment and Remuneration of Managerial Personnel, Rules 2014‘ Chapter XIII.

Time Period: The Act doesn’t provide the time period in which a Company have to designate Company Secretary as KMP. But it’s advisable to appoint a Company Secretary as KMP in first board meeting conduct after applicability of such provision. In this Case Rule 8 come into force from 1st April, 2014.

Process to Designate as KMP: Below given is process:

I. Call Board Meeting: Pass a Board Resolution for designation of Company Secretary as KMP as per section 203.

II.  Consent to act as KMP: Receive consent from Company Secretary to act as KMP.

III. Filling of Form with ROC:

MGT-14:  As per provision of Section 179 (3) Rule 8(2): Company require to file MGT- 14 along within 30 days of passing of Board Resolution with, [Attachment: Consent Letter and CTC of Board Resolution].

Online GST Certification Course by TaxGuru & MSME- Click here to Join

MR-1: As per Rule 3 of Chapter XIII: Company required filing MR-1 at the time of appointment of KMP within 60 days of passing of Board Resolution, with [Attachment: CTC of Board Resolution and Consent Letter)

Note:

i. As per Section 170 (2) there is needed to file form DIR-12 for any change in particular of Director or KMP. So in the above case change is designation of KMP and director. But practically it’s not possible to file e-form DIR-12 for change in particular. If we will try to file same then MCA will not accept the same.

ii. Above mention resolution for designation as KMP can’t pass as Resolution by Circulation. There is need to hold Board Meeting for the same.

B. APPOINTMENT OF COMPANY SECRETARY AS PER COMPANIES ACT, 2013:

Requirement to appoint Company Secretary in Private Limited Company govern 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 Companies Act, 2013.

Time Period: As per Section 203(4), if Company doesn’t not have Company secretary before 01st April, 2014 and provision of Section 203 applicable on such company then such company has to appoint Company Secretary with in 6 (Six) month till 30th September, 2014 (from 1st April, 2014).

Process to Appoint as Company Secretary:

I. Call Board Meeting: As per Section- 203(2) Pass a Board Resolution for Appointment of Company Secretary. Board Resolution should contain the following

  • Terms and Condition of Appointment.
  • Remuneration
  • Membership No.

II. Consent to act as Company Secretary: Receive consent from Company Secretary to act as Company Secretary.

III. Consent to act As Company KMP: Receive consent from Company Secretary to act as Company Secretary.

IV.  Process for appointment of Company Secretary: Below given is process:

MGT-14:  As per provision of Section 179 (3) Rule 8(2): Company require to file MGT- 14 along within 30 days of passing of Board Resolution with, [Attachment: Consent Letter and CTC of Board Resolution].

MR-1: As per Rule 3 of Chapter XIII: Company required filing MR-1 at the time of appointment of KMP within 60 days of passing of Board Resolution, with [Attachment: CTC of Board Resolution and Consent Letter)

DIR- 12: As per Section 170 (2) there is needed to file form DIR-12 for appointment of Director or KMP within 30 days of passing of Board resolution with (Attachment: Consent Letter, Appointment Letter, Self attested Copy of PAN card and CTC of Board Resolution).

Note:

A.     Circular Resolution: Resolution for appointment of CS is given in Section 179(3) Read with rule 8(2). Every Resolution mention in 179(3) required to be passed by Meeting of Board of Director (Including Video Conferencing). So Appointment of Removal of Board of Director can’t done by Circular Resolution.

B.     Filling of Vacancy of Company Secretary: As per Section 203 In case of Vacancy at place of Company Secretary. Company will appoint another Company Secretary within 6 month from the date of resignation of Company Secretary.

C.     Register Of Key Managerial Personnel: Section- 170(1) Every company shall keep at its registered office a register containing such particulars of its directors and key managerial personnel as may be prescribed in Rule 17 of the Companies (Appointment and Qualification of Directors) Rules 2014, which shall include the details of securities held by each of them in the company or its holding, subsidiary, subsidiary of company’s holding company or associate companies.

Rule 17 of the Companies (Appointment and Qualification of Directors) Rules 2014: prescribed every company shall keep at its registered office a register of its directors and key managerial personnel containing the following particulars, namely:-

i. Director Identification Number (optional for key managerial personnel);

ii. present name and surname in full;

iii. any former name or surname in full;

iv. father’s name, mother’s name and spouse’s name(if married) and surnames in full;

v. date of birth;

vi. residential address (present as well as permanent);

vii. nationality (including the nationality of origin, if different);

viii. occupation;

ix. date of appointment and reappointment in the company;

x. date of cessation of office and reasons therefor;

xi. Office of director or key managerial personnel held or relinquished in any other body corporate;

xii. membership number of the Institute of Company Secretaries of India in case of Company Secretary, if applicable; and

xiii. Permanent Account Number (mandatory for key managerial personnel if not having DIN);

In addition to the details of the directors or key managerial personnel, the company shall also include in the aforesaid Register the details of securities held by them in the company, its holding company, subsidiaries, subsidiaries of the company’s holding company and associate companies relating to-

xiv. he number, description and nominal value of securities;

xv.  the date of acquisition and the price or other consideration paid;

xvi. date of disposal and price and other consideration received;

xvii. cumulative balance and number of securities held after each transaction;

xviii.  mode of acquisition of securities ;

xix.  mode of holding – physical or in dematerialized form; and

xx.  whether securities have been pledged or any encumbrance has been created on the securities.

xxi.  date of the board resolution in which the appointment was made;

Note: There is no other prescribed format for the Register. Any format satisfying conditions of this Rules and containing all these information may be adopted by a company.

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

Read Other Articles Written by CS Divesh Goyal

Author Bio

More Under Company Law

Posted Under

Category : Company Law (3437)
Type : Articles (14577) Featured (4133)
Tags : Companies Act (1905) Companies Act 2013 (1677) Divesh Goyal (262)

18 responses to “Company Secretary under Companies Act, 2013”

  1. Kamlesh Jain says:

    Query
    Whether compliance of Section 203 of Companies Act 2013 is applicable to a unlisted company (an exclusively listed company on DSE now become unlisted company due to de-recognition by SEBI)?

    Whether un-listed company (as stated above) whose paid up- capital is Rs. 50 Lacs only and turnover is Rs. 300 Lacs only is compulsory required to appoint whole time company secretary under Section 203.?.

  2. DILKHUSH JAT says:

    Sir
    There are many companies in India whose paid up capital more than 5 Cr but they not appoint company secretary.why?

  3. Dipesh says:

    Hi Dvesh Ji

    very nice and helpful article. but i guess attachments are missing. Can u pls mail me same to deepesh.samriya
    @gmail.com.

  4. Vijay says:

    Dear Sir,

    I have filed the DIR-12 for appointment of director and company secretary. I attached the consent of director in form but forget to attach the consent of Cs. Is there any penalty on PCS for not attaching the same.

  5. khushboo jasani says:

    Dear sir,
    my company paid up capital is 5 cr on 1 jan 2014 and we are not appointed whole time cs but i am confused with provisions that we have to appoint whole time company secretary on 1 jan 2014 or provision change on 1 april 2014 that appointment of whole time company secretary with in 30 september 2014 kindly help in this matter

  6. CS PAWAN KUMAR says:

    Dear All,
    What remedies are available to a company secretary who resigns by sending email to M.D / W.T.D. from the position of C.S. and company is reluctant to relieve him / her(no notice period is required as no formal appointment letter was issued). Though C.S. is treated as KMP but is not at par with Other KMP (viz- Director). Director can File Form 11, but C.S. can not. Whether a communication to concerned ROC to the effect is enough to discharge C.S of his / her statutory duties. Can ROC compel the Company to file DIR -12 regarding resignation. What if the company even refuse to accept the resignation and issue relieving letter.

    The matter need urgent attention as many C.S. are suffering.

    Thanks & Regards

  7. Mahak Bajaj says:

    If a company is not filing DIR-12 for resignation of a director, what remedies are available to the Directors. is filing form DIR-11 with ROC is sufficient??

  8. Khusboo says:

    Hi Dvesh Ji

    very nice and helpful article. but i guess attachments are missing. Can u pls mail me same to cskhusboo@gmail.com.

  9. Yogendra Tomar says:

    Is there any statuary penalty in case the company is unable to appoint a CS with the stipulated period of six month after the previous one has resigned.

  10. Komal says:

    What is the procedure if the CS is appointed for a pvt ltd having paid up share capital of not less than than Rs. 5cr but not more than Rs. 10cr ? Shall he be considered as CS or KMP?

  11. sushma says:

    Do we need to ‘A’before membership number of CS,when we are filing form MR-1?

  12. BHAVYA says:

    what is the remedy available if the Company files DIR 12 for resignation of CS with a wrong date.

  13. P>K>Naik says:

    Many companies do not fill the post of KMP, there is no specified pay structure for them, no body is there to take action in above deficiencies – what to do? Pratap

  14. Vivek Sharma says:

    I think nothing is required in case of existing CS. By virtue of the provision of ACT CS is included in the definition of KMP and filing of MGT-14 is required in case of appointment & removal of KMP.

    Please clarify and correct, If I am wrong.

  15. Divesh Goyal says:

    Dear Rohit,

    CS appointed under rule 8A is also KMP.

  16. Unnati says:

    Dear Rohit,

    Rule 8A is applicable to Private Companies (Vide Notification dated 09.06.2014.)

    “8A. Appointment of Company Secretaries in companies not covered under rule 8.—A company other than a company covered under rule 8 which has a paid up share capital of five crore rupees or more shall have a whole-time company secretary.”

    As per my understanding Appointment of Company Secretary in Private Company will be treated as KMP and Form MR – 1 needs to be file with the ROC within 60 Days from date of Appointment of CS.(As CS comes under the defination of KMP).

    Appointment KMP other than CS will not be applicable to Pvt Co.

    Kindly note this is just my opinion.

    Expert views solicited on the matter.

    Regards,
    Unnati

  17. saurav says:

    In case of existing CS , prior to 1.4.2014 , then should the Company (paid up capital more than 10 cr) file MR1 and MGT 14 for him ?

  18. Rohit Bhase says:

    A Pvt. Ltd. Co. appoints whole-time CS under rule 8A and not under Sec. 203 or rule 8. So, whether the CS appointed under rule 8A is a KMP ?

    It may be noted that:
    a) Rule 8A is worded to say that its applicable to companies which are not required to appoint KMPs and
    b) Rule 8A was introduced to safeguard profession of CS

Leave a Reply

Your email address will not be published. Required fields are marked *