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