OVERVIEW DISQUALIFICATION & REMOVAL OF DIRECTOR

A director is a person who leads to a certain area of the company, program, or project companies.

the director usually reports directly to the vice president or corporate officer in the organization. They are appointed by a shareholder to manage the affairs of the company.

board of directors leads and controls a company nan effective board is fundamental to the success of the company.

DISQUALIFICATION OF DIRECTOR

1. A person said to of unsound mind by a court of competent jurisdiction and the finding is in force.
2. In case of a person is an undischarged insolvent.
3. A person has applied to be adjudicated as insolvent and his application is pending.
4. The person has been convicted by the court of an offense involving moral turpitude and sentenced to imprisonment of not less than six months and the period of five years has not been passed from the date on which the sentence is expired.
5. A person has not paid calls in respect of shares and six months have been elapsed from the date fixed for the payment of call.
6. An order disqualifying as a director has been passed by court and tribunal and order is in force.

REMOVAL OF DIRECTOR WHILE DISQUALIFICATION OF DIRECTOR

• COMPANY CAN REMOVE A DIRECTOR

A company may remove a director if it is not appointed by national company law tribunal bypassing-

SPECIAL RESOLUTION:

For removal of 2^nd term of independent director special resolution is passed by the company.

The opportunity of being heard is given to the director before removal by the company.

ORDINARY RESOLUTION:

For removal of executive director and non-executive director ordinary resolution is passed by the company.

The opportunity of being heard is given to the director before removal by the national company law tribunal.

• COMPANY CAN NOT REMOVE A DIRECTOR

A director is appointed by the national company law tribunal then the company can not remove that director

Basic Remedies to withstand disqualification of a director–

Filling of Appeal with NCLT under section 252 for restoration for struck off companies: 

• File a petition under section 252 of the companies act 2013.
• Application to companies whose name got struck off in disqualification.
• Appeal to be made before the NCLT to recover the name of the company with the ROC.

More read:

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• Overview of Invoice Furnishing Facility (IFF) Under QRMP Scheme

PROCESS OF REMOVAL DISQUALIFICATION & REMOVAL OF DIRECTOR

1. A special notice is given by the members to the company for the removal of the director or the appointment of a new director in the place of a director who is getting removed.
2. Such notice shall be given at least 14 days before the meeting at which the resolution is to be passed.
3. If members send notice along with the appointment of new director then rs. 1 lakh is to be deposited with special notice and FORM DIR -2 for the consent of the director and FORM DIR -8 intimation about his disqualification is to submit.
4. A listed company shall intimate about the special notice to the stock exchange within 24 hours from the receipt of notice and post the same on the website of company in 2 working days.
5. After that company shall send notice to all the members at least 7 days before the board meeting.
6. To take note of special notice at the meeting and send a copy of the notice to the concerned director and given the opportunity of being heard.

1. The company shall give notice to all the members to holding a general meeting and pass the special resolution for removal of an independent director who is appointed for the second term and ordinary resolution for all others director.
2. the concerned director will give his representation on special notice to the company and the opportunity of being heard.
3. A listed company shall intimate about the proceeding of the general meeting to the stock exchange within 24 hours from the receipt of notice and post the same on the website of company in 2 working days.
4. FORM MGT -14 shall be filled with the registrar of the company within 30 days of passing of the special resolution for removal of an independent director who is appointed for the second term and ordinary resolution for all others director at the general meeting with the following attachments-certified copies of special resolution

• • copy of the notice of meeting
  • copy of attendance
  • sheet of the general meeting

8. Company shall file FORM DIR -12 with the registrar of the company for cessation of office of director and appointment of director within 30 days of general meeting along with the following attachments-

• for cessation of director-
  • copy of the ordinary resolution or special resolution as the case may be
  • certified copy of the special notice
• for appointment of director-
  • certified copy of the ordinary resolution
  • interest in other entities
  • FORM DIR -12 consent of the director
  • FORM DIR -8 for intimation by the director about his disqualification.

9. If the national company law tribunal is satisfied by giving application by any members that giving the opportunity of representation by the concerned director is wastage of time or useless then national company law tribunal can withdraw the opportunity of representation from the concerned director.

Finally, Activation of Director identification number:

After the regulatory bodies of the National Company Law Tribunal and Hon’ble High Court passes the orders for the revival of struck-off company & DIN re-activation.

the appellant requires the filing of Statutory documents with Registrar of Companies, India for restoration of disqualified Director identification number.

Also, file the  ROC Annual Returns of the past 3 Years with the Income-Tax Department.

RESULTING VACANCY

1. The resulting vacancy can be filled at the same meeting in which the director is removed.
2. The resulting director shall be appointed for the same period for which the removal director was holding.
3. Prior special notice is given for the appointment for the new director at the same meeting in which the director is removed.

What are the Effects of Disqualification of the director?

• This restriction is imposed for a period of 5 Years or as the case may be.
• Not eligible for being appointed as Director for any company.
• MCA has been strictly enforcing all kinds of Co. Act & has published the names of the disqualified Directors MCA portal

What are the Consequences of Continuation of Disqualified Director?

If such Person continues as director even after vacation such person shall be liable for Imprisonment or fine. Disqualified Director can’t continue as Director in Companies.

He shall be considered as ceased with immediate effect.

If a person, functions as a director even when he knows that the office of director held by him has become vacant on account of any of the disqualifications specified in subsection (1), he shall be punishable with imprisonment for a term which may extend to 1 YR or with fine which shall not be less than 1,00,000/- Rupees but which may extend to 5,00,000/- Rupees, or with both.

List of Default of Section in case of Continuation of Disqualified Director

• If disqualified Director Signing the Financials-Such financials shall be considered as void.
• Any documents, Resolution signed by disqualified Director shall be considered as invalid/ void.
• If there is only 2 Director in Company 1 Disqualified – All the Board Meetings shall be invalid

ALL DISQUALIFICATION OF DIN ARE REMOVED BY MCA TODAY

CHECK YOUR DIN STATUS HERE

https://www.mca.gov.in/mcafoportal/showEnquireDIN.do

FAQ ON DISQUALIFICATION & REMOVAL OF DIRECTOR

Q1- can an independent director who is appointed for the first term can be removed by ordinary resolution?

Ans. Yes, an independent director who is appointed for his first term can be removed by the ordinary resolution. a special resolution is needed where the independent director is removed for his second term.

Q2- can the company remove a director who is appointed by the national company law tribunal?

Ans.- no, the company can not remove that director who is appointed by the national company law tribunal.

Q3- can removing director make his representation on special notice which is given by members of the company for removal of the concerned director?

Ans.-yes, removing director can give his representation on special notice which is given by members of the company for removal of a concerned director.

Q4- which resolution is passed for the removal of the executive director?

Ans.-executive resolution can be removed bypassing

Q5 : Can documents which had earlier been filed with some wrong information be revised under this Scheme?

Answer: Reason being, Scheme clearly specifies that only overdue documents due for filing upto 30.06.2017 should be filed under this Scheme and therefore revision of previously filed annual filing e-forms shall not be taken on record.

Q6. : Disqualification of directors of Companies which have been struck off can be removed?

Answer: In the event of defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director’s DIN shall be re-activated only NCLT order of revival subject to the company having filing of all overdue documents.

Q 7 :   Are foreign companies eligible to seek condonation under this Scheme?

Answer: Foreign company has been defined in Section 2(42) as “Foreign Company” means any company or body corporate incorporated outside India which,—

• has a place of business in India whether by itself or through an agent, physically or through electronic mode; and
• conducts any business activity in India in any other manner.
• In our view, since the above definition covers any company incorporated outside India whereas the Scheme covers only company under this Act or any previous company law, the provisions of this Scheme shall not be applicable to foreign companies.

Q8: Implication of Non-Compliance of this scheme?

Answer: The DINs of the Directors associated with the defaulting companies that have not filed their overdue documents and the reform CODS, and these are not taken on record in the MCA21 registry and are still found to be disqualified on the conclusion of the scheme in terms of section 164(2)(a) r/w 167(1)(a) of the Act shall be liable to be deactivated on expiry of the scheme period.

Q9 :  what shall be the filing fees for registering under this scheme?

Answer: The filing fee for availing benefits under this Scheme is Rs.30,000/- which is the fee required to be paid at the time of filing the e-Form CODS 2018.

However, before filing e-Form CODS 2018, the defaulting companies shall be required to upload all their overdue documents with an additional fee for the delayed period for each one of them, as may be levied as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014.

Q 10 :   Can documents that had earlier been filed with some wrong information be revised under this Scheme?

Answer: The reason being, the Scheme clearly specifies that only overdue documents due for filing up to 30.06.2017 should be filed under this Scheme and therefore revision of previously filed annual filing e-forms shall not be taken on record.

Q11: Can an active company (non-defaulting) apply for CODS 2018 to file its overdue documents?

Answer: As per the introduction given in the Scheme, it is clear that the Scheme has been rolled out for defaulting companies only which are yet to file their annual filing documents which are due to be filed up to 30.06.2017.

Q12: Will this scheme apply to Companies whose status is shown “Strike OFF” on the MCA portal?

Answer: NO, this scheme will not apply to defaulting companies whose names have been removed from the register of companies under section 248 of the Act.

Company Law Committee – Representation:

A Report of Companies Law Committee has been submitted to Govt of India.

Committee has recommended or opined that that for rectifying defect in filing ROC Annual return is required to be restricted to defaulting company only & not with respect to other companies.

So, if any Director was disqualified on account of one of a company defaulting on filing of annual returns, the Director would still be allowed to file the necessary returns in other companies in which ROC compliance has been maintained.

Summary: A lot of directors of Co. approached the Honorable High Court/NCLT to revive their DIN’s & Companies under Article 226 of the under section 252 of Companies Act, 2013 and Constitution of India. 

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