Query relating to appointment of employee as occupier

[Chetan Mandlia]

Dear All

 

Company appointed one of its employee (not the director) as occupier under the factory act

 

Please clearify below stated Queries

 

If any employee is appointed as Occupier, do we need to look into the provisions of sec 5 (officer in default)?

 

Does Occupier would mean giving substantial powers of management and hence attract sec 5 or other sections of the Companies Act

 

Do we need to file form 1AA / 1AC (relevant forms) under Sec 5 or other Forms under other sections of the Companies Act.

 

Best Regards

 

 
Chetan Mandlia
Practisting Company Secretary

[VIJAY SHYAM ACHARYA]

pls see my comments in caps below   regards, --- On Wed, 10/20/10, Chetan Mandlia <cheta...@gmail.com> wrote:

From: Chetan Mandlia <cheta...@gmail.com> Subject: [CSMysore] Query relating to appointment of employee as occupier To: csmy...@googlegroups.com Date: Wednesday, October 20, 2010, 10:09 AM

Dear All   Company appointed one of its employee (not the director) as occupier under the factory act

AS I UNDERSTAND, THE OCCUPIER SHALL BE A DIRECTOR & THE SAME IS CLARIFIED BY A SUPREME COURT DECISION

Please clearify below stated Queries   If any employee is appointed as Occupier, do we need to look into the provisions of sec 5 (officer in default)?

THE OCCUPIER AND MANAGER AS APPOINTED UNDER THE FACTORIES ACT ARE LIABLE FOR DEFAULTS UNDER THE SAID ACT

Does Occupier would mean giving substantial powers of management and hence attract sec 5 or other sections of the Companies Act

A DIRECTOR APPOINTED AS A OCCUPIER IS PRESUMED TO HAVE SUCH POWERS. PLS REFER THE DEFINITION OF OCCUPIER UNDER THE FACTORIES ACT.

Do we need to file form 1AA / 1AC (relevant forms) under Sec 5 or other Forms under other sections of the Companies Act.

NOT REQUIRED AS PER MY KNOWLEDGE. VIEWS SOLICITED.

Best Regards     Chetan Mandlia Practisting Company Secretary

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[Ramya Jnanesh]

Dear Sir,

 

How to  Appoint the Occupier and Manager under Factories Act?  Whether it  requires Board Resolution?

 

Regards,

Ramya H.C

[pavani akilla]

Dear Ramya

 

Director of the company should act as occupier of the factory and he should be appointed as occupier by the Board at their meeting

 

pavani  

[CS.Omkar]

Dear Mr. Chetan,

 

I Agree with Mr. Vijay. To add, Sec 2(n) of the Factories Act, 1948 makes it very clear that "in the case of a company, any one of the Directors shall be deemed to be the Occupier". Hence, there is no scope that a NON-Director is appointed as Occupier. No filing is required under the Companies Act for nominating a director as Occupier. However, intimation to Factory Inspectorate (No specific form is prescribed. General letter is sufficient) is a must.

 

 

Regards...Omkar

On Wed, Oct 20, 2010 at 2:56 PM, VIJAY SHYAM ACHARYA <vijay...@yahoo.com> wrote:

[sumit phadnis]

dear chetan,

As per my understanding any person other than director can be
apppinted as a occupier of the factory.

[VIKAS GUPTA]

Hello friends,
I agree with that only directors is appointed as Occupier of the Company.
I would like to add one more query that Can a independent director be appointed as Occupier of the company as per factories act or any other act??

--
THANKYOU
CS VIKAS GUPTA
Company Secretary
Shree Krishna Paper Mills & Industries Ltd.
vikas...@skpmil.com
9953620278

[CS.Sunil Kumar B.G.]

Dear Mr. Vikas,

Section 2 (n) of the Factories Act,1948 says;

 " occupier" of a factory means the person who has ultimate control over the affairs of the factory 

Provided that-

(ii) in the case of a company, any one of the directors shall be deemed to be the occupier;

With reference to the above provision we can say an independent director cannot be  appointed as occupier. however if the company gives more power to an independent director to have a ultimate control over the affairs then such independent director can be appointed as occupier.

Warm Regards,

Sunil Kumar B.G.
Practicing Company Secretary
Mysore
http://cssunilbangerabg.blogspot.com/

[VIKAS GUPTA]

Dear Sir,
I do not understand about the phrase that the company give more powers to independent directors then he become occupier of the company.
first of all, I would like ask you what kind of powers? if company give that then what about his independency?
If my company who appoints independent director as occupier of the company and the company gives all the powers to him. Can he be treated as occupier of the Company? it it considered as default or not??

[CS.Sunil Kumar B.G.]

Dear Mr. Vikas,

Ultimate Powers: generally the ultimate powers of a company will be in the hands of MD (hoping that you are aware about the MD powers) the companies Act defines it as substantial powers of management.

Independency: his independency will be questioned only when he been found interested in any transaction of the company, my question is are there any provisions or regulations  which prohibits any company in giving extra powers to an independent director.?

Making a director as occupier of the company is left to the board to decide. a director of a company shall exercise his power subject to the superintendence, control and direction of its board of directors.

Warm Regards,

Sunil Kumar B.G.
Practicing Company Secretary
Mysore
http://cssunilbangerabg.blogspot.com/

[Reshma A]

Hi,

 

Basically, an Independent Director is a non-executive director i.e., do not take part in the day-to-day business transaction.  The wide and general pactice is to appoint an executive director as Ocupier of a factory which is also logically correct.

Regards,

 

Reshma

Mysore

 

On Wed, Oct 20, 2010 at 5:29 PM, VIKAS GUPTA <vickyp...@gmail.com> wrote:

[Suresh Kumar Vaishraj]

Dear Friends,

 

I second the opinion of Reshma. The basic distinction between an executive and independent director is "dealing with the affairs of the company". Once a director gets involved in the affairs of the Company whether partly, substantially, wholly then, he will loose his independence and he will become an executive character. This will defeat the very objective of having an independent director.

 

Thus though it is not expressly prohibited neither in the Companies Act nor Factories Act, an independent director should not be appointed as occupier under Factories Act. Not only that an independent director should not be entrusted with any affairs of the Company.

 

Views of other friends are welcome .........................

 

Thanks and Regards,

 

Suresh Kumar V
Company Secretary
91-9849991201