Section 168, the Companies Act, 2013: Resignation of directors

Section 168, the Companies Act, 2013: Resignation of directors Corresponding sections of the Companies Act, 1956: None this is a newly introduced section.  

DIRECTORS RESIGNATION UNDER COMPANIES ACT, 2013:-

1. The Director intending to resign shall send notice in writing to the Company. The resignation of a director shall take effect from:

ü The date on which the Notice Is Received by the company or

ü The Date, If Any, Specified by the Director in the notice, whichever is later.

2. The director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.

3. The law has caste duty upon the Director Resigning, to File Form DIR- 11 (Company shall file form DIR 12) and

üMention therein the Reason for Resigning.

üEnclose the copy of Notice sent to the Company.

üEnclose Proof Of Dispatch.

üFile the said form within 30 days of resignation along with the prescribed filing fees.

There is warning note at the end of the form which states as follows:

Note: Attention is also drawn to provisions of Section 448 and 449 which provide for punishment for false statement and punishment for false evidence respectively. These sections 448 and 449 relate to punishment for committing fraud or giving false evidence and these are non-compoundable offences.

Duty of Company in case of Resignation by Director As per section 168 (1):

A director may resign from his office by giving a notice in writing to the company and the Board. The company shall on receipt of such notice;

ü  Take note of the same by passing a board resolution to that effect and

ü  As per Rule 15 of Companies (Appointment and Qualification of Directors) Rules, 2014 the company shall intimate the Registrar through Filing Of Form Dir.12 Within 30 Days From The Effective Date of Resignation on its website, if any.

ü  Company is also required to Place the Fact of Such Resignation in the Report of Directors laid in the immediately following general meeting by the company.

Duty of Resigning Director in case of Resignation:

A director shall also forward a Copy of his Resignation Along With Detailed Reasons for the resignation to the Registrar within 30 (Thirty) days of resignation through filing of Form DIR.11 under his Digital Signature. It means it will be mandatory for all directors to have Digital Signature under Companies Act-2013.

Effective date of Resignation:

As per section 168 (2), the resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, Whichever Is Later.  

SECRETARIAL PRACTICE:

As discussed above E-forms to be filed in case Resignation of Director are form DIR.11 and DIR.12.

ü  Filing of Form DIR.11 is the responsibility of resigning director under his/her digital signature and

ü  Whereas Filing of Form DIR.12 is the responsibility of Company.

Where all the directors of a company resign from their offices, or vacate their offices under section 167, the promoter or, in his absence, the Central Government shall appoint the required number of directors who shall hold office till the directors are appointed by the company in general meeting.

THINGS TO BE MENTIONED IN THE E-FORM DIR – 11: 

ü  Enter the date of appointment of resigning director in the company.

ü  In case of an alternate director, enter the DIN of the director to whom the appointee is alternate and click Pre-fill button. System will automatically display the name of the director to whom the appointee is alternate.

ü  Enter the date of filing of resignation with the company and also effective date of resignation specified in the notice.

ü  The resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later. And the same effective date is required to be mentioned above.

ü  The effective date of resignation shall be same as the date of cessation entered in eForm DIR-12 if already filed by the company.

ü  It is mandatory to specify the reasons for resignation from the company. 

Attachments: The following attachments are mandatory:

ü  Notice of resignation filed with the company.

ü  Proof of dispatch-{Attachment section of form DIR-11, asks for proof of dispatch. Now the question is --- Is there any requirement of formal dispatch through post which generates proof of dispatch? My Answer is “NO”.   We can very well use scan copy of “Receiving” of resignation letter given by responsible official of the company in case of personal delivery. Further scan copy of printout of E-mail through which resignation tendered would be enough as proof of dispatch}.

ü  Acknowledgement received from company, if any and is mandatory if yes selected in option at serial no 6. {Point no. 6 in form DIR-11 inquires whether confirmation is received from the company w.r.t. the resignation of Director. As per my understanding if we mention “NO” in the E-form, there will be no issue in future as confirmation of resignation from company is not mandatory u/s 168.  

ü  When a director files eForm DIR-11 for intimating about his resignation before the company files eForm DIR-12, an email will be sent to the company for filing the eForm DIR-12 and the status of the Director in the company will be changed to ‘Resigned’ against the selected designation. Once the company files the relevant eForm DIR-12, the status shall be changed as per the existing system.

We can use Board Resolution for taking note of resignation or Resignation acceptance Letter by the Company as Evidence of Cessation. Further Resignation Letter given by the Director shall act as Notice of Resignation filed with the Company. I sincerely believe that above article would be of some help for understanding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES is a Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com) Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Though utmost efforts has made to provide authentic information, it is suggested that to have better understanding kindly cross-check the relevant sections, rules under the Companies Act, 2013. The observations of the author are personal view and the authors do not take responsibility of the same and this cannot be quoted before any authority without the written