Occupier

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

19 November 2011 Dear All,

Can we appoint a Director who is a Foreigner as an occupier as per the Factories Act, since he is not living in India continuously and comes only for Board Meetings.
In case he is not allowed can an employee of the Company appointed as an occupier.

Thanks

CA VISHAL RANA,CS,B.Com,AMFI

CA VISHAL RANA,CS,B.Com,AMFI (Expert)
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19 November 2011 Section 2(n) states that `occupier' of a factory means the person who has ultimate control over the affairs of the factory; provided that:
i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
ii) in the case of a company, any one of the directors,shall be deemed to be the occupier; and
iii) in the case of a factory owned or controlled by the Central Government, or any State Government, or any local authori ty, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier.

So as per provisions of sec 2(n) a forgein director can be a occupier in factory.read clause ii of sec 2(n) it states any director can be a occupier

Querist : Anonymous

Querist : Anonymous (Querist)

19 November 2011 Vishal,

While i also interpreted the same through the Act the question posed to me was that since the Director living overseas cannot regularly visit the factory how can he be termed as being holding the ultimate control over the affairs of the Company.

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CA VISHAL RANA,CS,B.Com,AMFI

CA VISHAL RANA,CS,B.Com,AMFI (Expert)
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19 November 2011 ya definately because director can be a occupier if he has ultimate control on the affiars of the company...read two conditions by harmonisation

1. ultimate control over the affairs of the company

2. any director can be occupier.

both above conditions shall be satisfied

i was not read in your query "foreign director visit india only for board meeting"

so first condition is not satisfied ultimate control over the affairs of the co.

in your case forgein director can't be a occupier..because one person who not has control over factory and visit factory/India on fix time intervals can't be a director

Querist : Anonymous

Querist : Anonymous (Querist)

19 November 2011 In that case what should be done since Indian Director is not willing to accept the role

Thanks

CA VISHAL RANA,CS,B.Com,AMFI

CA VISHAL RANA,CS,B.Com,AMFI (Expert)
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19 November 2011 read word "shall deemed to be a occupier"...if company has one whole time director or MD...one of them shall considered deemed to be occupier..even director willing to accept the role of occupier..

interpret the law as written. don't try make own opinions...otherwise doubts will be arise