PROCEDURE FOR REMOVAL OF DIRECTOR
1. Ensure that a special notice for the removal of a director is furnished by number of members in accordance with the section 115 of Companies Act, 2013 to the company at least 14 days before the meeting at which it is to be moved.
2. (a) Ensure that the notice for removal of a director is for a director other than a director appointed by the Tribunal under section 242 of the Companies Act, 2013.
(b) Ensure that the director of whose removal notice has been received is not a director who was appointed under section 163 with the principle of proportional representation.
3. Immediately after receiving of the notice of the intention to move any resolution for removal of a director, the company, shall give notice of said resolution to the members of the company in the same way as it gives notice of the meeting.
4. Publish an advertisement, in case if it is not possible for the company to give notice to all the members of the Company, in the newspaper having an appropriate circulation within a period of not less than 7 (seven) days before the date of meeting.
5. On receipt of notice, send copy of such notice to the director concerned and intimate him about his entitlement of an opportunity of being heard in general meeting.
6. Prepare notice of board meeting along with draft resolution(s) to be passed in the board meeting.
· Send notice of board meeting to all the directors:-
ü at least 7 (seven) days before the date of board meeting or
ü in such manner as prescribed under section 173(3) of the Companies Act, 2013 and clause 1 of the Secretarial Standard-1.
7. Convene the board meeting and pass board resolutions for:
· Removal of director subject to the approval of shareholders in general meeting by way of ordinary resolution.
· Fix day, date, time and venue for calling general meeting and
· Approve the notice of general meeting
8. Prepare draft minutes of the board meeting and circulate, within a period of fifteen days from the date of conclusion of that meeting, to all directors, for their comment(s).
· All directors shall communicate their comment(s), if any, on the draft circulated minutes within a period of seven days from the date of circulation of the draft minutes.
· Add the suggested comment(s) given or suggested by any director and finalize the minutes.
· Enter the minutes, in the minute book of the board meeting, within thirty days from the date of conclusion of the board meeting.
· Minutes of the board meeting shall be signed and dated by the chairman of that meeting or by the chairman of the next meeting.
· The signed minutes duly certified by Company Secretary/any director where Company Secretary is not appointed shall be circulated within 15 days of signing to all the directors as on the date of meeting or appointed thereafter, except those directors who have waived to receive such signed minutes.
9. The director, whose removal notice is received by the company, can make a representation in writing against his removal and can make a request to the company to notify it to the company’s members. If the director’s request the company to notify its representation to the members of the company and the representation is of not lengthy and if the time permits, the company must.
10. Send notice of general meeting to all directors, shareholders, auditors, secretarial auditors and Debenture Trustee, if any, of the company at least 21 days before the date of general meeting. However, notice may be given at a shorter period of time if consent in writing is given thereto, by physical or electronic means, by not less than ninety five percent of the members entitled to vote at such meeting in case the matter is considered in Annual General Meeting, however, if the matter is taken in Extra Ordinary General Meeting, then shorter notice of general meeting may be given subject to:—
(a) in case company have share capital, consent of majority members entitled to vote and who represent not less than ninety-five per cent. of such part of the paid-up share capital of the company as gives a right to vote at the meeting; or
(b) in case company have no share capital, consent of members not less than ninety-five per cent of the total voting power exercisable at that meeting. (However, private companies can opt their own regulations with respect to notice of General Meeting.)
Further, it is not necessary to give reasons in explanatory statement for removal of director as required under section 102 of the Companies Act, 2013.
11. Convene general meeting and pass ordinary resolution for removal of director. However, special resolution is required in case of removal of a director who is an independent director re-appointed for second term.
12. Maintain proper record for:
· Total number of members present at the meeting with their shareholding pattern.
· Members who voted in favor of the proposed resolutions and number of shares held by them.
· Members who voted against the proposed resolutions and number of shares held by them.
13. Prepare draft minutes of shareholders’ meeting and for finalization, send the draft minutes to the chairman of that meeting.
14. File e-form MGT-14 within 30 days of passing the general meeting resolutions
15. File e-Form DIR-12 along with attachments with the Registrar of Companies within thirty (30) days of passing of resolution. Please note that e-form DIR-12 for removal of Director is not in STP mode.
16. Make necessary entries in register of directors, key managerial personnel and their shareholding.
(Author- Vishal Wason is a a Fellow Member of the Institute of Company Secretaries of India and Law Graduate. He is Practicing as an Advocate with Hon’ble High Court of Delhi and other district courts including Tribunals. He is having rich experience of more than 8 years (approx) in Company law matters. His core area of practice includes Corporate Laws, ROC matters, Intellectual Property Right (IPR) Laws and liaisoning with ROC, NCLT, Trademark Registry, Regional Director, Official Liquidator, Reserve Bank of India, Ministry of Corporate Affairs and Stock Exchange etc.
With the vast experience in Corporate Sector, he has got in-depth knowledge and experience of Secretarial Audit, Due Diligence, Corporate Drafting, Mergers, Trademark & Copyrights, Joint Venture & Collaborations. He is also handling various litigations including Section 138 case, civil related matters, Property disputes, Criminal matters, Arbitration proceedings, etc.
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