Resignation of director without approval of board

[Naresh Kumar]

Dear Members,

Can a director be resigned to himself without taking approval of board ?

If he files F-32 with ROC without approval of board and get him resigned then will it be valid ?

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--Thanks & Regards--

NARESH KUMAR

ACS, LL.B., PGDIPR

MOBILE- 9910683177

 

 

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[krishna ds]

Dear,

Director can resign from the Directorship of the Company and most of the time, it is formality of the Board to ratify the action.

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Thanks & Regards...?

D S Krishna

Mobile: 94480 18302

[Naresh Kumar]

thnx for reply... but is it not mandatory to get resignation approved in board ?

[Ramaswami Mohan]

1. under the present e-filing environment, the Director resigning cannot use his digital signature for his own resignation.

 

2. there needs to be a board meeting and we need to mention the resolution number and date of board meeting at  which the  director sigining the eform is so authorised. This could also be a blanket authorisation for siginging any eform by the concerned director.

 

3. The resigning director need not take any approval of the Board to resign, he has to merely tender his resignation letter and it is the duty of the other continuiung diretor/s to act on such a resignation letter.

 

regards,

Mohan   

On Fri, Apr 12, 2013 at 2:15 PM, Naresh Kumar <upret...@gmail.com> wrote:

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CS. R.  Mohan
Mobile: 9908814677

[Naresh Kumar]

thnx Mr. Mohan but what will happen if there are only two directors ?

and in my case director has filed his F-32 of resignation by using his own digital signature.

[John Manoj]

Dear Mr.Naresh,

Section 303 envisages that it is the duty of the company to file a return, that is form 32, within 30 days from the date of any change in the composition of the board.

Hence, the return can be valid only if it is signed by the director of the company.  A director who resigns from the board cannot sign the return on behalf of the company since he resigned as director.

Thank you
John

Sent from my Sony Ericsson Live with Walkman

[Naresh Kumar]

thnx but there is a case where the director has used his digital signature for filing his own resignation and the same form has been uploaded and approved by ROC.

[John Manoj]

Dear Mr.Naresh,

If MCA is active, there would not be any case like corporate fraud etc.  Take examples of Satyam computers, Sahara etc., it was caught by SEBI and MCA not even reacted in anyway. You cannot find even a single fraud or mismanagement reported by MCA. Because they don't know anything and they don't care about anything.

So mere acceptation of e-form 32 by ROC doesn't mean that it is correct.  Legality of the document can be questioned.

Regards
John

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[Naresh Kumar]

Ok... that means filing of this F-32 is not valid as per law ? Can we take reference of any section/provision to show that this is invalid filing of F-32 ?

[John Manoj]

Yes Mr.Naresh, you can refer section 303(2) of the companies act.  And also it would be supportive if you could find any relevant case laws.

Regards
John

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[John Manoj]

I found a case law relevant to your query. Refer it if it could help you in any way,

Conclusion In Abdul Huq v. Katpadi Industries Ltd. AIR 1960 Mad 482, 483, it was held that “The net result of this analysis is that a director, who has submitted his resignation, will be deemed to have resigned from the date of his resignation, without prejudice, of course to his liabilities and obligation which has occurred up to that date and which he cannot evade by severing his connection with the company.†The filing of necessary forms with the Registrar of Companies with respect to the resignation of the Director has to be done by the Company as required under Section 303(2).

Regards
John

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[Vishwas Hegde]

If any Director of the company resigned to his directorship means he is not eligible for the usage of DSC for that company. Even before that as per law, there is no relationship between the company and director after resignation. 

 

Resignation from director is final and binding on the company. company has to take note of the resignation made by the director in ensuing Board meeting and the Board should authorise Director/CS to sign the Form 32 on behalf of company. 

 

As per your quiry the filing cannot be possible. if the filing is already done then it may be a techinical mistake.

 

Further, the company is a private company which is having only 2 directors and one of them is resigned then it will be violation of Section 252 (2).

With regards,
ಆ ರವಮಂ ನಿರ್ಜಿತಕಂ
ತೀ ರವರವಮಂ ನಿರಸ್ತ
ಘನರವಮಂ  ಕೋಪಾರುಣನೇತ್ರಂ
ಕೇಳ್ದಾ
ನೀರೊಳಗಿರ್ದುಂ ಬೆಮರ್ತನ್
ಉರಗಪತಾಕಂ !!!!
THANK YOU,
VISHWAS HEGDE

[Naresh Kumar]

thnx for the reply..

[Premnarayan Tripathi]

Dear Friend,

 

The Board takes note of resignation of director (sometimes a resolution is passed in this regard, but not mandatory).

 

So far as filing of Form 32 is concerned, you may please adhere to anyone from the following options;

 

1.      It’s better to place the matter is the Board Meeting, get it noted and resolved to authorize any director/CS to file the e-Form 32.

 

2.      If it’s not feasible to convene a meeting, pass the circular resolution and get authority to file.

 

3.      In certain cases, executive directors are generally authorized to file such e-Forms for those matters for which approval of Board through resolution is not required.

 

Thanks & regards,

CS. Premnarayan Tripathi

PRT & Associates,

Company Secretaries

201, Sarthik Square, Nr. GNFC Info Tower,

S G Highway, Ahmedabad - 380054

(M): +91 89800 26497

E-mail: premnar...@gmail.com

[Indrani Sanka]

Hi,

A director can resign without the approval of the Board by communicating about his resignation to the Board. and the Form 32 has to be filed with the ROC by the Co and not by the Director.

On Fri, Apr 12, 2013 at 2:15 PM, Naresh Kumar <upret...@gmail.com> wrote:

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Regards,

Indrani

[Disha Dugar]

i want to remove a director as he is not holding qualification shares as per the AOA of the Company, but the DSC registered will not be provided to me, the Directors have carried out malified objects and me being the shareholder wants them removed. What could be the solution?

[Ramaswami Mohan]

as a shareholder serve a notice on the co asking for the removal of the director.

the co to consider your notice and call for a meeting of the board. at such a meeting draft a EGM notice and send copy of ur letter and EGM notice to all the shareholders and also to the director to be removed, asking him to explain why he should not be removed.

the director to be removed has  a right to explain and defend himself at the EGM.

At the EGM pass an ordinary resolution for his removal and file form 32 and form 23.

send the Notice and EGM papers etc all by Regd Post Ack Due. 

hope there are other directors who has a DSC duly registered.

regards,

Mohan 

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[Disha Dugar]

thank you for the reply, but you see the director is the one having the dsc, and even the other directors are with him in the unlawful activities. So there is no scope of me getting a dcs to file the form 32.

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[Ramaswami Mohan]

Then in which case u can use ur rights only as a shareholder and move the Company Law Board and come out with all your grievances and seek a remedy. for this u need to be a shareholder holding more than 10 % of the issued and paid up share capital.

regards,

Mohan

[Disha Dugar]

yes, we are holding more than 10 %, can't the matter be resolved at the ROC level itself?

[Deepesh Nayak]

Dear Disha,

If the director not hold the qualification shares, as required in the article and as per relevant provisions of the Companies Act, his office will be automatically become vacant after the due date.

So, the shareholders need not to take any action in this regard. After vacation of office of director it is the duty of the company that it intimate to ROC about such vacation of office.

In my opinion you should write to company asking for why the director is holding the position as such and the same is also cc to ROC. Thereafter, ROC may initiate the proceeding and may issue show cause notice to the Company in this regards.

Other views are solicited.

Regards,
Deepesh

Thanking you,

*CS Deepesh Kumar Nayak*
 Company Secretary

 STI India Limited

 *Mob. 097134-80215*
*csdeepe...@gmail.com*

[Disha Dugar]

thank you so much for the prompt reply.

[K.Muthusamy]

Dear All,

There are two things in the entire discussions

Firstly, the resignation of the director is effective from his date of resignation unless there is any contrary clause / condition in his appointment.  Acceptance by board / ratification by board / filing form 32 will no way effect the resignation of the director. But it is the duty of the director to ensue his resignation is communicated to the company / board to claim any immunity from any liabilities.  A director who has resigned should not use his own DSC for this purpose and he has already ceased to be director the moment he signed the resignation.

Secondly, filing for form 32 is e filing environment is a technical procedure and system allows to file form 32 for resignation only when there are is a minimum of 2 / 3 directors after resignation. Hence it is the dury of the company / remaining directors to ensure the compliance by appointing additional director / getting dsc for another director / filing form 32 etc.  However more clarity / direction is given in CA 2013 for such circumstances.

Hope we can put rest to the discussions on this matter.

Happy Pongal / Sankaranthi

 

With regards

 

K.MUTHUSAMY B.Com, FCMA, FCS

JMACS ASSOCIATES 

Company Secretaries in Practice | No:51 First Floor | Ramasamy Layout ( DPF Street) | Papanaickenpalayam | Coimbatore-641037
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