Appointment of c.s.

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siddhi08 (Querist)
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03 February 2012 Dear Experts,

A listed Company having a compliance officer,
whether the compliance officer can be a director of the company?

there are three director and one is going to resign... in that case can a compliance officer can be a director?

thanks & regards,
siddhi

CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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03 February 2012 Yes a compliance officer can be a director.

The regulations contained in Table A of Schedule I come into operation in case of companies limited by shares to the extent these are not excluded or modified by the Articles of these companies.

Regulation 82 of Table A provides that subject to the provisions of the Act,—

(1) A manager or secretary may be appointed by the Board for such term, at such remuneration and upon such conditions as it may think fit; and any manager or secretary so appointed may be removed by the Board;

(2) A director may be appointed as a manager or secretary.

Jiten Gupta

Jiten Gupta (Expert)
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03 February 2012 Agree with above explanation..

But where there are 3 Minimum Directors, none of them can be appointed as CS..

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RAMESH KUMAR VERMA

RAMESH KUMAR VERMA (Expert)
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03 February 2012 thanks for explanation by CMA SANJAY GUPTA JI.
THANKYOU,

CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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03 February 2012 Dear Jitendra Ji..It will be 2 i think.

According to regulation 82(2) of Table A, a director may be appointed as manager or secretary However, this regulation is “Subject to the provisions of the Act.” Thus the power conferred on the Board by this regulation has to be exercised subject to the sub-section (1). Accordingly, a director may be appointed as secretary provided, however, that where the Board of directors of a company having the paid-up share capital prescribed for the purposes of section 383A, comprises only two directors, neither of them shall be appointed as the secretary.

Charu Srivastava

Charu Srivastava (Expert)
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03 February 2012 Yes a Compliance officer can be appointed as a Director. Agree with Sanjay ji..
explained nicely

siddhi08

siddhi08 (Querist)
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04 February 2012 Dear All,

Thanks for your replies.

Is it necessary that a Compliance Officer should possess a degree of C.S. (Member of ICSI)?

If no, then in that case a Compliance officer can be appointed as Director?
There are 3 Directors on the Board and one is going to resign.

Regards,
Siddhi

Guest

Guest (Expert)

04 February 2012 For private limited it is 2 and for public limited it it 3, Sanjay Jee.

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CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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04 February 2012 Neha Jee,

Section 383A(1) says---

"383A. Certain companies to have secretaries.—(1) Every company having such paid-up share capital as may be prescribed shall have a whole-time secretary and where the Board of directors of any such company comprises only two directors, neither of them shall be the secretary of the company.

Here the word used is "Every Company" therefore it seems that it is applicable to both private and public companies.

Please correct me if i am wrong or brief us in case there is an update or any other provision which supports your reply.

Regards

Guest

Guest (Expert)

04 February 2012 Sanjay Jee,

I am reproducing below text from COMPANY LAW READY RECKONER 10th Edition (July 2011) :

3. Appointment of a director as secretary
Where the Board of directors of any company having a paid up capital of Rupees Five Crores or more consisting of only two directors, neither of them shall be appointed as a secretary of the company.

However, if a private company has more than two directors and a public company which has more than three directors on the Board, one of them can act as a secretary subject to the possession by him the prescribed qualifications under the Companies (Appointment and Qualification of Secretary) Rules, 1988 and subject to the compliance of the provisions of section 314 of the Companies Act, 1956.

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CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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04 February 2012 Ok. Neha Jee.
But from where this reference is taken by CLRR. I mean, i can not see any provision in "Companies (Appointment and Qualifications of Secretary) Rules, 1988" to this effect, where as sub section (1) of Section 383A is clarifying as stated above.
Even in above text of CLRR same is given, in fact two different statements.

Under the circumstances which one needs to be adhered too. Please Comment.

Guest

Guest (Expert)

04 February 2012 Pls give me ur email id. I will mail it over to you.

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CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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04 February 2012 Ok. In between please also check out below link.

http://ourprofessionalteam.com/index.php?option=com_oscontent&view=article&id=2709&catid=100&Itemid=48

Also if it happens to be three for Public Ltd company then the text of sec 383A(1) should be amended.

Guest

Guest (Expert)

04 February 2012 I have mailed you. Pls check the same and revert with your comments.

Guest

Guest (Expert)

04 February 2012 Pls send me this link in email.

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CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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04 February 2012 Checked the file sent by Neha Jee. But there is no reference given in the CLRR whereas section 383A(1) is clear in this regard.

Could not find any such provision anywhere in the act.

Under the circumstances i feel that the provisions of Section 383A(1) shall be adhered to.

Views of experts welcomed.

siddhi08

siddhi08 (Querist)
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06 February 2012 Hey guys..............

Answer my question..... :( :(

Charu Srivastava

Charu Srivastava (Expert)
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06 February 2012 A secretary can be appointed as Director (and Vice Versa). If there are two directors , neither of them shall be Director.
In your case compliance officer can be appointed as a Director.

CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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07 February 2012 Appointment of compliance officer according to Clause 47(a) of Listing Agreement:

Clause 47(a) provides that the company is under an obligation to appoint the Company Secretary to act as Compliance Officer who will be responsible for monitoring the share transfer process and report to the company's Board in each meeting. The compliance officer will directly liaise with the authorities such as SEBI, Stock Exchanges, Registrar of Companies, etc., and investors with respect to implementation of various clauses, rules, regulations and other directives of such authorities and investor service and complaints of related matter.

The whole-time company secretary shall be a member of the Institute of Company Secretaries of India.(For Companies with paid up capital of Rs 5 crore or more)

So if your Company is listed and have a whole time company secretary he has to be the compliance officer as per requirement of the Clause 47(a) of listing agreement.

So we can say that Compliance Officer must be a member of ICSI.

In any case i think you can appoint him as a director by following the provision of Sec 383A(1).

siddhi08

siddhi08 (Querist)
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11 February 2012 thnx........... guys....