Introduction

 As per Section 2 (34) of the Companies Act, 2013 a “director” means a director appointed to the Board of a company. The Change in Director refers to appointment or removal of director from the Company. A director is a person appointed to perform the duties and functions of the directors of a company in accordance with the provisions of the Companies Act, 2013.

A director is appointed as per the provisions of the Companies Act 2013 by the shareholders. The directors has a fiduciary responsibility to act bonafide for the benefit of shareholders.

The shareholders have the discretion to appoint and remove a director. However, the director must be provided a reasonable opportunity of being heard.

A director  can be changed anytime as and when needed. The director may voluntarily resign from the company or may be removed by the shareholders for non-performance of the duties or in case of death of the director.

A director can be changed by ceasing to be a director in two situations

Resignation as per Section 168 of Companies Act 2013

A director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall within thirty days from the date of receipt of notice of resignation from a director, intimate the Registrar in Form DIR-12 and post the information on its website if any and shall also place the fact of such resignation in the report of Directors laid in the immediately following general meeting by the company.

Where a director resigns from his office, he may within a period of thirty days from the date of resignation; forward to the Registrar a copy of his resignation along with reasons for the resignation in Form DIR-11 along with the fee as may be prescribed under Companies (The Registration Offices and Fees) Rules, 2014.

Removal by the Shareholders as per Section 169 of Companies Act 2013

The Shareholders of the Company may, by ordinary resolution, remove a director, not being a director appointed by the Tribunal under section 242, before the expiry of the period of his office after giving him a reasonable opportunity of being heard.

A special notice shall be required of any resolution, to remove a director under this section, or to appoint somebody in place of a director so removed, at the meeting at which he is removed.

A vacancy created by the removal of a director under this section may, if he had been appointed by the company in general meeting or by the Board, be filled by the appointment of another director in his place at the meeting at which he is removed, provided special notice of the intended appointment has been given.

A director so appointed shall hold office till the date up to which his predecessor would have held office if he had not been removed.

3 ways to make a Change in Directors

Appointment of Director:

  • A Board Meeting shall be convened for passing the resolution for Appointment of Director or Removal of Director, as the case may be.
  • After passing Board Resolution, the Company shall convene General Meeting.
  • At the General Meeting, the resolution will be passed subject to the approval of the shareholders.
  • Form DIR – 12 has to be submitted to the Registrar within 30 days from the appointment being made.

Resignation of Director:

  • The Director shall send the notice of resignation in writing.
  • The Company consider the Notice given by the Director and shall file DIR-12 within 30 days from the receipt of Notice.
  • However, the Director, on his discretion may file DIR-11 stating the reasons for resignation within 30 days from resignation.

Removal of Director:

  • Before the removal, a Director shall be provided a reasonable opportunity of being heard.
  • A special notice shall be served to the members for the General Meeting in which the Director has to be removed.
  • The General Meeting should be duly convened and members shall pass the resolution.
  • The Company shall file Form DIR-12 with the Registrar of Companies within 30 days from the date of passing the resolution.

Pre-requisites to be a Director

Forms to be Filed with ROC

The Company shall file FORM DIR-12 within Thirty days from Appointment or Removal of Director.

However, the Director may file FORM DIR-11 within Thirty days from resignation along with the reasons for resignation.

Penalty For Non- Compliance

The penalty for non-compliance will be as per the Companies (The Registration Offices and Fees) Rules, 2014 will be applicable as follows:

Delay in Compliance Penalty Up to 15 Days One time of normal filing fees More than 15 days and up to 30 days 2 times of normal filing fees More than 30 days and up to 60 days 4 times of normal filing fees More than 60 days and up to 90 days 6 times of normal filing fees More than 90 days and up to 180 days 10 times of normal filing fees More than 180 days 12 times of normal filing fees

 

Liability of Director after Resignation

The director once resigned from the company cannot be held liable for the liabilities arising in the company after the acceptance of resignation by the Company

However, the Director shall be liable for the assets or overdrawn director loans taken from the Company and has resigned without paying these liabilities.           

Conclusion

A Private Limited business is a legal entity unto itself. The director works on its behalf and performs managerial responsibilities. He also makes decisions for the organization and ensures that it is compliant. The company is represented by the Board of Directors. A company’s directors cannot be a body corporate, an association, a limited liability partnership (LLP), or a business. Therefore it is of utmost importance to ensure that the directors to act for the benefit of the Company as well as for its shareholders.

However, a director can only be appointed if he/she has obtained a Director Identification Number (DIN) and has Digital Signature.

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