ROC to take action against Companies who have not appointed Company Secretary u/s 203 of Companies Act, 2013 By CS Gaurav Kumar


Dear Professional Colleagues,

Very recently, we saw that ROC of various states have taken serious  action against those companies who had pending ROC Filings for continuous three or more years and disqualified such directors u/s 164(2) for five years.

Apart from the list of struck off companies and disqualified directors, the MCA is going to start the procedure to issue show cause notices to the Companies who have not appointed the Company secretary as KMP according to the section 203 of the Companies Act, 2013.

The respective RoC may start serving the notices on the Companies in coming time.

In one of the recent Seminar of NIRC-ICSI, ROC-Delhi & Haryana made it clear that they have taken this thing seriously the steps are being taken to first identify such companies and send them notice as to why they have failed to appoint CS under the provision of section 203 of the Companies Act, 2013.

We are aware that MCA has done flip-flop on the applicability of CS.

Seeing the Same:

Representation was made by ICSI on April 2, 2014, Click Here to Read The Same.

Section 203. Appointment of Key Managerial Personnel reads as

[It is Effective from 1st April, 2014]

(1) Every company belonging to such class or classes of companies as may be prescribed shall have the following whole-time key managerial personnel,—

(i) managing director, or Chief Executive Officer or manager and in their absence, a whole-time director;

(ii) company secretary; and

(iii) Chief Financial Officer:

Provided that an individual shall not be appointed or reappointed as the chairperson of the company, in pursuance of the articles of the company, as well as the managing director or Chief Executive Officer of the company at the same time after the date of commencement of this Act unless,—

(a) the articles of such a company provide otherwise; or

(b) the company does not carry multiple businesses:

Provided further that nothing contained in the first proviso shall apply to such class of companies engaged in multiple businesses and which has appointed one or more Chief Executive Officers for each such business as may be notified[1] by the Central Government.

(2) Every whole-time key managerial personnel of a company shall be appointed by means of a resolution of the Board containing the terms and conditions of the appointment including the remuneration.

(3) A whole-time key managerial personnel shall not hold office in more than one company except in its subsidiary company at the same time:

Provided that nothing contained in this sub-section shall disentitle a key managerial personnel from being a director of any company with the permission of the Board:

Provided further that whole-time key managerial personnel holding office in more than one company at the same time on the date of commencement of this Act, shall, within a period of six months from such commencement, choose one company, in which he wishes to continue to hold the office of key managerial personnel:

Provided also that a company may appoint or employ a person as its managing director, if he is the managing director or manager of one, and of not more than one, other company and such appointment or employment is made or approved by a resolution passed at a meeting of the Board with the consent of all the directors present at the meeting and of which meeting, and of the resolution to be moved thereat, specific notice has been given to all the directors then in India.

(4) If the office of any whole-time key managerial personnel is vacated, the resulting vacancy shall be filled-up by the Board at a meeting of the Board within a period of six months from the date of such vacancy.

(4A) The provisions of sub-sections (1), (2), (3) and (4) of this section shall not apply to a managing director or Chief Executive Officer or manager and in their absence, a whole time director of the Government Company.[2]

EXEMPTION

The above mentioned exception shall be applicable to a government company which has not committed a default in filing its financial statements under section 137 of the said Act or annual return under section 92 of the said Act with the Registrar, vide amendment notification no. G.S.R. 582 (E) dated 13th June 2017.

(5) If a company contravenes the provisions of this section, 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 be punishable with fine which may extend to fifty thousand rupees and where the contravention is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the contravention continues.

Applicable Rules

Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014

[It is Effective from 1st April, 2014]

Rule 8. Appointment of Key Managerial Personnel.—Every listed company and every other public company having a paid-up share capital of ten crore rupees or more shall have whole-time key managerial personnel.

[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.][3]

Applicable Notifications
Second Proviso to Sub- Section(1)
of Section 203 of Companies Act 2013
Notification No. S.O. 1913(E) dated 25th July 2014

In exercise of the powers conferred by the second proviso to sub-section (1) of Section 203 of the Companies Act, 2013 (18 of 2013), the Central Government hereby notifies that public companies having paid-up share capital of rupees one hundred crore or more and annual turnover of rupees one thousand crore or more which are engaged in multiple businesses and have appointed Chief Executive Officer for each such business shall be the class of companies for the purposes of the second proviso to sub-section (1) of Section 203 of the said Act.

Explanation.—For the purposes of this notification, the paid-up share capital and the annual turnover shall be decided on the basis of the latest audited balance sheet.

[1] Notified vide S.O. 1913(E) dated 25th July, 2014 for detail see, at the end of the section in “Applicable Notification”.

[2] Inserted with respect to a Government Company, vide Notification No. GSR 463(E) dated 5th June, 2015

[3] Inserted by the Companies (Appointment and Remuneration of Managerial Personnel) Amendment Rules, 2014 vide Notification No. G.S.R. 390(E) dated 9th June, 2014.

After struck off companies and disqualified directors, the ROC is expected to start the procedure to issue show cause notices to the Companies who have not appointed the Company secretary as KMP according to the section 203 of the Companies Act, 2013. 

Therefore, Companies are expected to make the appointment of the CS as KMP, if applicable to them.


Author
CS Gaurav Kumar
Co-Founder
Compliance Calendar LLP
E-Mail: founders@compliancecalendar.in 

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