Appointment of independent director in an unlisted public co

This query is : Resolved

sandeep (Querist)
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23 October 2016 During probation a manager of a company has been appointed as Independent Director (Non- executive) in the board just after joining the company & registered with RoC by filing form 32. Now, as per the provision of CA 2013, no body can be appointed as an Independent Director (NED), if he/she been employed in the company within last 2 financial year. Please clarify the following

(1) Whether his/her appointment will be treated as cancelled as he/she is not eligible of appointment of Independent Director per the provision of CA 2013 ?

OR
(2) He/She will be treated as Whole Time Director where as in form 32 clearly shows him/her as Independent Director.

Jatin Bajaj

Jatin Bajaj (Expert)
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24 October 2016 There are 2 schools of thoughts.
if the Independent Director are appointed prior to April 1 , 2014 may complete and continue their remaining tenure under the provisions of the Companies Act 1956 or they should demit the office and reappointed as per the new act. if the existing independent Director is appointed under the new act , he shall hold the office as per section 149(10) &(11) of the companies Act 2013, read with schedule IV of the act and it should comply this provisions within 1 year from 1 April 2014( i.e. within 1 year from the date of commencement of the act)
in other words such independent Director may be appointed fresh under companies Act 2013.
And he cannot be appointed as whole time Director because as per section 149(6), Independent Director means the Director other than managing Director or whole Time Director