All about Postal Ballot under Companies Act, 2013

ALL YOU NEED TO READ FOR POSTAL BALLOT:

• SECTION 110 OF COMPANIES ACT, 2013
• SECTION 108 OF COMPANIES ACT, 2013 (for evoting)
• Rule 22 of Companies (Management and Administration) Rules, 2014
• Rule 20 of Companies (Management and Administration) Rules, 2014, Mutatis Mutandis apply regarding evoting.
• Regulation 44 of SEBI (LODR) Regulations, 2015.
• Secretarial Standard 2 issued by ICSI.

♣ What Companies Act, 2013 says about this?

Section 110

(1) Notwithstanding anything contained in this Act, a company-

(a) shall, in respect of such items of business as the Central Government may, by notification, declare to be transacted only by means of Postal Ballot; and

(b) may, in respect of any items of business, other than ordinary business and any business in respect of which directors or auditors have a right to be heard at any meeting, transact by means of postal ballot, in such manner as may be prescribed, instead of transacting such business at a General Meeting.

(2) If a resolution is assented by the requisite majority of the shareholders by means of Postal Ballot, it shall deemed to have been duly passed at a General Meeting convened in that behalf.

♣ FOLLOWING LIST OF OF BUSINESS SHALL BE TRANSACTED ONLY BY MEANS OF VOTING THROUGH POSTAL BALLOT

[Pursuant to clause (a) of sub-section (1) of Section 110 read with Rule 22 (16) of Companies (Management & Administration) Rules, 2014]

__________________________________

a) Alteration of the objects clause of the memorandum and in the case of the company in existence immediately before the commencement of the Act, alteration of the main objects of the memorandum. [(Section 13)]

b) Alteration of articles of association in relation to insertion or removal of provisions which are required to be included in the articles of a company in order to constitute it a private company. [Section 2 (68)]

c) Change in place of registered office outside the local limits of any city, town or village. [Section 12(5)]

d) Change in objects for which a company has raised money from public through prospectus and still has any unutilized amount out of the money so raised. [Section 13(8)]

e) Issue of shares with differential rights as to voting or dividend or otherwise. (Section 43 (a) (ii))

f) Variation in the rights attached to a class of shares or debentures or other securities. (Section 48)

g) Buy-back of shares by a company (Section 68(1))

h) Election of a director. (Section 151)

i) Sale of the whole or substantially the whole of an undertaking of a company. (Section 180 (1) (a))

j) Giving loans or extending guarantee or providing security in excess of the limit. (Section 186 (3))

♣ Procedure to be followed for conducting Postal Ballot

[Rule 22 of the Companies (Management and Administration) Rules, 2014]

⇒ Notice to Shareholders:

Where a company is required or decides to pass any resolution by way of postal ballot, it shall send a notice to all the shareholders, along with a draft resolution explaining the reasons there for and requesting them to send their assent or dissent in writing on a postal ballot because postal ballot means voting by post or through electronic means within a period of 30 days from the date of dispatch of the notice.

⇒Mode of dispatch:

The notice shall be sent either:

• by Registered Post or speed post, or
• through electronic means like registered e-mail id or
• Through courier service for facilitating the communication of the assent or dissent of the shareholder to the resolution within the said period of thirty days.

⇒Publish advertisement:

An advertisement shall be published at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situated, and having a wide circulation in that district, and at least once in English language in an English newspaper having a wide circulation in that district, about having dispatched the ballot papers and specifying therein.

Details of Advertisement:

• a statement to the effect that the business is to be transacted by postal ballot which includes voting by electronic means;
• the date of completion of dispatch of notices;
• the date of commencement of voting;
• the date of end of voting;
• the statement that any postal ballot received from the member beyond the said date will not be valid and voting whether by post or by electronic means shall not be allowed beyond the said date;
• a statement to the effect that members, who have not received postal ballot forms may apply to the company and obtain a duplicate thereof; and
• Contact details of the person responsible to address the grievances connected with the voting by postal ballot including voting by electronic means.

⇒Place notice on website:

The notice of the postal ballot shall also be placed on the website of the company forthwith after the notice is sent to the members and such notice shall remain on such website till the last date for receipt of the postal ballots from the members.

⇒Appoint Scrutinizer:

The Board of directors shall appoint one scrutinizer, who is not in employment of the company and who, in the opinion of the Board can conduct the postal ballot voting process in a fair and transparent manner.

The scrutinizer shall be willing to be appointed and be available for the purpose of ascertaining the requisite majority.

IF a resolution is assented to by the requisite majority of the Shareholders by means of Postal Ballot including voting by electronic means, it shall be deemed to have been duly passed at a General Meeting convened in that behalf.

⇒Obligation of Scrutinizer:

• Postal ballot received back from the shareholders shall be kept in the safe custody of the scrutinizer and after the receipt of assent or dissent of the shareholder in writing on a postal ballot, no person shall deface or destroy the ballot paper or declare the identity of the shareholder
• The scrutinizer shall submit his report as soon as possible after the last date of receipt of postal ballots but not later than seven days thereof.
• The scrutinizer shall maintain a register either manually or electronically to record their assent or dissent received, mentioning the particulars of name, address, folio number or client ID of the shareholder, number of shares held by them, nominal value of such shares, whether the shares have differential voting rights, if any, details of postal ballots which are received in defaced or mutilated form and postal ballot forms which are invalid.
• The postal ballot and all other papers relating to postal ballot including voting by electronic means, shall be under the safe custody of the scrutinizer till the chairman considers, approves and signs the minutes and thereafter, the scrutinizer shall return the ballot papers and other related papers or register to the company who shall preserve such ballot papers and other related papers or register safely.
• The assent or dissent received after thirty days from the date of issue of notice shall be treated as if reply from the member has not been received.
• The results shall be declared by placing it, along with the scrutinizer’s report, on the website of the company.
• The resolution shall be deemed to be passed on the date of at a meeting convened in that behalf.

Exemptions:

• One Person Company and
• Other companies having members up to two hundred are not required to transact any business through postal ballot.

My submission/ analysis to the best of my knowledge are as follow:

• E-voting will also remain open for 30 days.

• Cutoff date: in case of postal ballot nothing clearly defined in rule 22 regarding cutoff date so company can take a date (preferably benpose date) preceding before the date of dispatch of notice. Although rule 20 w.r.t. voting through electronic means mutatis mutandis apply on postal ballot and in rule 20 cutoff date means a date not earlier that 7 days before the date of general meeting, but it is not possible in case of postal ballot.

• Tip for deciding cutoff date: for listed entities, RTA receive every Friday EOD (end of day) benpose (beneficiary position) of shareholders by CDSL & NSDL, Company can take this data so as to determine eligibility of shareholders without paying additional fee to Depositories for non-Friday data. Accordingly, the Members whose names appear on the Register of Members / List of Beneficial Owners received from NSDL and CDSL on ‘cut- off date’ will be considered for the purpose of voting.

• Further I want to suggest that notice along with requisite papers (Notice+Postal Ballot Form+self addressed postage pre-paid envelope/BRE) shall be dispatched to only those shareholders who do not have their email address registered with company/RTA.

Example: company have 20000 shareholders, out of which 5000 email addresses are registered with Company/RTA, then in that case physical dispatch can be done for 15000 shareholders only.

Pls note: sending of emails to shareholders is one thing and evoting is different thing. Evoting is a mode of casting votes which will be offered to all shareholders whether their email addresses are registered with company or not.

REGULATION 44 OF SEBI (LODR) REGULATIONS, 2015

Voting by shareholders.

44. (1) The listed entity shall provide the facility of remote e-voting facility to its shareholders, in respect of all shareholders’ resolutions.

(2) The e-voting facility to be provided to shareholders in terms of sub-regulation (1), shall be provided in compliance with the conditions specified under the Companies (Management and Administration) Rules, 2014, or amendments made thereto.

(3) The listed entity shall submit to the stock exchange, within forty eight hours of conclusion of its General Meeting, details regarding the voting results in the format specified by the Board.

(4) The listed entity shall send proxy forms to holders of securities in all cases mentioning that a holder may vote either for or against each resolution.

SECRETARIAL STANDARD ON POSTAL BALLOT:

16. Passing of Resolutions by postal ballot

16.1 Every company, except a company having less than or equal to two hundred Members, shall transact items of business as prescribed, only by means of postal ballot instead of transacting such business at a General Meeting.

The list of items of businesses requiring to be transacted only by means of a postal ballot is given hereinabove. The Board may however opt to transact any other item of special business, not being any business in respect of which Directors or auditors have a right to be heard at the Meeting, by means of postal ballot. Ordinary Business shall not be transacted by means of a postal ballot.

16.2 Every company having its equity shares listed on a recognized stock exchange other than companies whose equity shares are listed on SME Exchange or on the Institutional Trading Platform and other companies which are required to provide e-voting facility shall provide such facility to its Members in respect of those items, which are required to be transacted through postal ballot.

Other companies presently prescribed are companies having not less than one thousand Members.

16.3 Board Approval

The Board shall:

(a) identify the businesses to be transacted through postal ballot;

(b) approve the Notice of postal ballot incorporating proposed Resolution(s) and explanatory statement thereto;

(c) authorise the Company Secretary or where there is no Company Secretary, any Director of the company to conduct postal ballot process and sign and send the Notice along with other documents ;

(d) appoint one scrutiniser for the postal ballot.

The scrutiniser may be a Company Secretary in Practice, a Chartered Accountant in Practice, a Cost Accountant in Practice, an Advocate or any other person of repute who is not in the employment of the company and, who can in the opinion of the Board, scrutinise the postal ballot process in a fair and transparent manner. The scrutiniser shall however not be an officer or employee of the company. The scrutiniser so appointed may take assistance of a person who is not in employment of the company and who is well-versed with the e-voting system. Prior Consent to act as a scrutiniser shall be obtained from the scrutiniser and placed before the Board for noting.

(e) appoint an Agency in respect of e-voting for the postal ballot;

(f) decide the record date for reckoning Voting Rights and ascertaining those Members to whom the Notice and postal ballot forms shall be sent.

Only Members as of the record date shall be entitled to vote on the proposed Resolution by postal ballot.

(g) decide on the calendar of events.

(h) authorise the Chairman or in his absence, any other Director to receive the scrutiniser’s register, report on postal ballot and other related papers with requisite details.

The scrutiniser is required to submit his report within seven days from the last date of receipt of postal ballot forms.

16.4 Notice

16.4.1 Notice of the postal ballot shall be given in writing to every Member of the company. Such Notice shall be sent either by registered post or speed post, or by courier or by e-mail or by any other electronic means at the address registered with the company.

The Notice shall be accompanied by the postal ballot form with the necessary instructions for filling, signing and returning the same. In case the Notice and accompanying documents are sent to Members by e-mail, these shall be sent to the Members’ e-mail addresses, registered with the company or provided by the depository, in the manner prescribed under the Act. Such Notice shall also be given to the Directors and Auditors of the company, to the Secretarial Auditor, to Debenture Trustees, if any, and, wherever applicable or so required, to other specified recipients. An advertisement containing prescribed details shall be published at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situated, and having a wide circulation in that district, and at least once in English language in an English newspaper having a wide circulation in that district, about having dispatched the Notice and the ballot papers.

16.4.2 In case of companies having a website, Notice of the postal ballot shall also be placed on the website.

Such Notice shall remain on the website till the last date for receipt of the postal ballot forms from the Members.

16.4.3 Notice shall specify the day, date, time and venue where the results of the voting by postal ballot will be announced and the link of the website where such results will be displayed.

Notice shall also specify the mode of declaration of the results of the voting by postal ballot.

16.4.4 Notice of the postal ballot shall inform the Members about availability of e-voting facility, if any, and provide necessary information thereof to enable them to access such facility.

In case the facility of e-voting has been made available, the provisions relating to conduct of e-voting shall apply,mutatis mutandis, as far as applicable. Notice shall describe clearly the e-voting procedure. Notice shall also clearly specify the date and time of commencement and end of e-voting, if any and contain a statement that voting shall not be allowed beyond the said date and time. Notice shall also contain contact details of the official responsible to address the grievances connected with the e-voting for postal ballot. Notice shall clearly specify that any Member cannot vote both by post and e-voting and if he votes both by post and e-voting, his vote by post shall be treated as invalid.

The advertisement shall, inter alia, state the following matters:

(a) a statement to the effect that the business is to be transacted by postal ballot which may include voting by electronic means;

(b) the date of completion of dispatch of Notices;

(c) the date of commencement of voting ( postal and e-voting);

(d) the date of end of voting ( postal and e-voting);

(e) the statement that any postal ballot form received from the Member after thirty days from the date of dispatch of Notice will not be valid;

(f) a statement to the effect that Member who has not received postal ballot form may apply to the company and obtain a duplicate thereof;

(g) contact details of the person responsible to address the queries/grievances connected with the voting by postal ballot including voting by electronic means, if any; and

(h) day, date, time and venue of declaration of results and the link of the website where such results will be displayed.

Notice and the advertisement shall clearly mention the record date as on which the right of voting of the Members shall be reckoned and state that a person who is not a Member as on the record date should treat this Notice for information purposes only.

16.4.5 Each item proposed to be passed through postal ballot shall be in the form of a Resolution and shall be accompanied by an explanatory statement which shall set out all such facts as would enable a Member to understand the meaning, scope and implications of the item of business and to take a decision thereon.

16.5 Postal ballot forms

16.5.1 The postal ballot form shall be accompanied by a postage prepaid reply envelope addressed to the scrutiniser.

A single postal ballot Form may provide for multiple items of business to be transacted.

16.5.2 The postal ballot form shall contain instructions as to the manner in which the form is to be completed, assent or dissent is to be recorded and its return to the scrutiniser.

The postal ballot form may specify instances in which such Form shall be treated as invalid or rejected and procedure for issue of duplicate postal ballot Forms.

16.5.3 A postal ballot form shall be considered invalid if:

(a) A form other than one issued by the company has been used;

(b) It has not been signed by or on behalf of the Member;

(c) Signature on the postal ballot form doesn’t match the specimen signatures with the company

(d) It is not possible to determine without any doubt the assent or dissent of the Member;

(e) Neither assent nor dissent is mentioned;

(f) Any competent authority has given directions in writing to the company to freeze the Voting Rights of the Member;

(g) The envelope containing the postal ballot form is received after the last date prescribed;

(h) The postal ballot form, signed in a representative capacity, is not accompanied by a certified copy of the relevant specific authority;

(i) It is received from a Member who is in arrears of payment of calls;

(j) It is defaced or mutilated in such a way that its identity as a genuine form cannot be established;

(k) Member has made any amendment to the Resolution or imposed any condition while exercising his vote.

A postal ballot form which is otherwise complete in all respects and is lodged within the prescribed time limit but is undated shall be considered valid.

16.6 Declaration of results

16.6.1 Based on the scrutiniser’s report, the Chairman or any other Director authorised by him shall declare the result of the postal ballot on the date, time and venue specified in the Notice, with details of the number of votes cast for and against the Resolution, invalid votes and the final result as to whether the Resolution has been carried or not.

The scrutiniser shall submit his report to the Chairman who shall countersign the same. In case Chairman is not available, for such purpose, the report by the scrutiniser shall be submitted to any other Director who is authorised by the Board to receive such report, who shall countersign the scrutiniser’s report on behalf of the Chairman.

16.6.2 The result of the voting with details of the number of votes cast for and against the Resolution, invalid votes and whether the Resolution has been carried or not, along with the scrutiniser’s report shall be displayed on the Notice Board of the company at its Registered Office and its Head Office as well as Corporate Office, if any, if such office is situated elsewhere, and also be placed on the website of the company, in case of companies having a website.

16.6.3 The Resolution, if passed by requisite majority, shall be deemed to have been passed on the last date specified by the company for receipt of duly completed postal ballot forms or e-voting.

16.7 Custody of scrutiniser’s registers, report and other related papers The postal ballot forms, other related papers, register and scrutiniser’s report received from the scrutiniser shall be kept in the custody of the Company Secretary or any other person authorised by the Board for this purpose.

16.8 Rescinding the Resolution

A Resolution passed by postal ballot shall not be rescinded otherwise than by a Resolution passed subsequently through postal ballot.

16.9 Modification to the Resolution

No amendment or modification shall be made to any Resolution circulated to the Members for passing by means of postal ballot.

SAMPLE CALENDAR OF EVENTS SPECIFYING EVERYTHING YOU NEED

SI. NO.	Particulars	Date
1.	Date on which consent is given by the Scrutinizer.	7.10.2015
3.	Date of Board Meeting approving:   1) Notice of postal ballot & draft resolutions. 2) Authorizing Mr. X, Practicing Company Secretary to act as Scrutinizer responsible for the entire postal ballot process on behalf of the Company.	17.10.2015
4.	Date of appointment of the Scrutinizer.	17.10.2015
5.	Cut-off Date for determining the names of shareholders entitled to notice of postal ballot.	6.11.2015
6.	Date of filing of “Calendar of Events” with NSDL/CDSL along with a copy of the Board Resolution as mentioned under Sl. 2 a & b above and Consent Letter for e-Voting.for shareholders as provided by NSDL/CDSL.	9.11.2015
7.	Creation of EVEN (e-Voting Event Number) i.e. uploading of Resolution(s) and Company’s Logo to NSDL/CDSL.	9.11.2015
8.	Date of uploading “Shareholding File i.e. rom file” with NSDL/CDSL for obtaining ‘User-ID’ and ‘password’ for shareholders.	9.11.2015
9.	Downloading of “Response File” to ascertain “Accepted/Rejected” cases and to get the User id and Password of the share holders whose email ids are not available to whom physical Ballot Paper to be sent.	12.11.2015
11.	Electronic transmission of User-ID and password (by NSDL) to elligible shareholders.	17.11.2015
12.	Completion of dispatch of Notice and Postal Ballot Forms.	17.11.2015
10.	Submission of Postal Ballot Notice/ Form etc. to Stock Exchanges	17.11.2015
13.	Release of advertisement in newspaper giving the date of completion of dispatch of the Notice and the last date of receipt of Postal Ballot forms etc in terms of Rule 22 of Companies (Management & Administration) Rules, 2014.	18.11.2015
14.	E-Voting to commence from.	19.11.2015 (9:00 AM)
15.	Last date of receiving of Postal Ballot forms by the Scrutinizer.	18.12.2015
16.	Last date of e-Voting portal remaining active.	18.12.2015 (5:00 PM)
17.	Last date of submission of the Report by the Scrutinizer.	20.12.2015
18.	Date of declaration of results by the Company (within 48 hour of end of voting).	20.12.2015
19.	Date of intimation of results of the Postal Ballot to BSE, NSE & DSE (and/or in other Stock Exchange where listed).	20.12.2015
20.	Display of the result in the Company’s website.	20.12.2015
21.	Release of Advertisement in newspaper giving the result of the Postal Ballot.	21.12.2015
22.	Date for filing of the Special resolution(s) with the ROC.	19.01.2015

POSTAL BALLOT FORM

(To be returned to Scrutinizer appointed by the Company)

Serial No.

1	Name(s) of the Shareholder(s)	:
	including joint shareholder(s), if
	Any
	(in Block Letters)
2	Registered Address of the	:
	sole/first named shareholder

3	Registered folio No./ DP &	:
	Client ID No.*
	(*Applicable to investors holding
	shares in dematerialized form)
4	No. of Shares held	:
5	PAN/Sequence No.	:

I/we hereby exercise my/our vote(s) in respect of the Special Resolutions/Ordinary Resolutions set out in the Notice dated ___________to be passed by means of Postal Ballot/e-voting by conveying my/ our assent/ dissent to the said resolutions by placing the tick (ü ) mark at the appropriate box below (tick in both boxes will render the ballot invalid).

Item No.	Brief description of the Special Resolutions	No. of shares held by me	I / We assent to the Resolution (For )	I / We dissent to the Resolution (Against )
1
2
Email Id : __________________________ (Company may use this email Id for future communication)
Mobile No.: ______________________
Place: ______________________
Date: _____________		(Signature of shareholder)

ADDITIONAL INSTRUCTIONS FOR PHYSICAL BALLOT VOTING

1. A shareholder desiring to exercise his/her/its vote by Postal Ballot (“PB”) may complete the Postal Ballot Form (“PBF”) (a photocopy is permitted to be used for the purpose) and send it to the Scrutinizer in the attached postage pre-paid self-addressed envelope. Postage will be borne and paid by the Company. However, envelopes containing duly completed and signed PBF, if deposited in person or sent by courier at the expense of the member will also be accepted.

2. The self-addressed envelope bears the address of the Scrutinizer appointed by the Board of directors of the Company.

3. There will be one PBF for every folio/ client id irrespective of number of joint holders.

4. The PB shall not be exercised by a Proxy.

5. The votes should be cast either in favor or against by putting tick mark in the column provided for assent or dissent. PBF bearing tick marks in both the columns will render the form invalid.

6. Voting will be considered invalid and rejected on the grounds which shall include:

a. If the member’s signature on PBF does not tally with the specimen signature registered with the RTA/Company.

b. If the member has marked all his shares both in favor and also against the resolutions.

c. If the PBF is unsigned.

d. If the Ballot paper is received torn or defaced or mutilated to an extent that it is difficult for the Scrutinizer to identify either the name of member or number of votes or as to whether the votes are in favour or against or if the signature could not be checked on one or more of the above grounds.

7. The Scrutinizer’s decision on the validity of a PBF will be final.

8. The PBF should be duly completed and signed by the shareholder. In case of joint shareholding, this form should be completed and signed (as per specimen signature registered with the Registrar and Share Transfer Agent (RTA)/Company) by the first named shareholder and in his/her absence, by the next named shareholder. A shareholder may sign the PBF through an Attorney, in which case a copy of the Power of Attorney should be enclosed with the PBF.

9. In case of shares held by companies, trusts, societies etc. the duly completed PBF should be accompanied by a certified true copy of the relevant Board Resolution/Authority Letter.

10. Duly completed and signed PBF should reach the Scrutinizer not later than the close of working hours i.e. 5.00 p.m. on ________________. Any PBF received after the aforesaid date will be treated as if the reply from such shareholder(s) has not been received.

11. Members are requested not to send any other paper along with the PBF in the enclosed self addressed envelope (except the Board Resolution/Authority Letter specified in instruction 9 above) as all envelopes will be sent to the Scrutinizer and any extraneous papers found in such envelope would be destroyed by the Scrutinizer.

12. A member may request for a duplicate PBF, if so required. However, the duly filled in duplicate PBF should also reach to the Scrutinizer not later than the date specified in instruction 10 above.

13. Voting rights shall be reckoned on the paid up value of shares registered in the name(s) of the shareholder(s) / Beneficial Owner(s) as on__________cut off date mentioned above.

14. The Scrutinizer will submit his report to the Chairman or any other Director of the Company after completion of the scrutiny and the result of the voting of the Postal Ballot/E-voting will be announced on or before ____________ at the Registered Office of the Company. The result will thereafter also be informed to the Stock Exchanges, hosted on the Company’s website www.xyz.com and published in news papers for the information of the Members.

15. The date of declaration of the results of Postal Ballot/E-voting shall be taken to be the date of passing of the resolutions.

16. Members have an option to vote either through e-voting process or PBF. If a member has opted for e-voting, then he/she should not vote by PB also and vice-a-versa. However in a case members who cast their vote via physical ballot and e-voting both, then voting through e-voting shall prevail and voting done by PB shall be treated as invalid.

17. Members who hold shares in dematerialized form and opt to vote by PB are advised to get their signatures verified by their banker/depository participant (DP). Signatures should be verified by the Manager of the concerned Banker/DP by affixing a rubber stamp/seal mentioning name and address of the Banker/DP and name, stamp and signature of the Manager.

18. All postal ballot form shall be delivered on or before close of working hours i.e. 5.00 p.m. _______________at the following address.

ADDRESS________