Removal of Director by Shareholders in Listed Company
I wrote this post when one of my client asked me that we have a Director who is always in disagreement with the majority of Board and we would like to know ways to remove him from the Board and then, I thought this post would be helpful for those companies who passes through similar situation.
Laws governing the removal of Directors;
Laws governing the removal of Directors;
It is Shareholders who
are the real owners of the company and that’s why all important decisions have
to be taken by Shareholders and not Directors. In this situation wherein a
Director be removed, shareholders have the power to remove him/ her even before
his tenure expires except for a situation where any Director been appointed by
Tribunal for prevention of Oppression and mismanagement under Sec 242 and
Director been appointed under principle of proportional representation under
Sec 163 of the Act.
Relevant Provisions of
Companies Act 2013;
Section 169:
(1) A Company may by Ordinary Resolution remove a Director not being a Director
appointed by Tribunal under Sec 242 before the expiry of the period of his
office after giving him reasonable opportunity of being heard.
Provided that nothing contained in this sub section shall apply
where the company has availed itself the option given to it under Section 163
to appoint not less than two thirds of total number of Directors according to
principle of proportional representation
Meaning: It
is right of Shareholders to remove a Director in General Meeting through
Ordinary Resolution. Only exception is the Director not being appointed by
Tribunal under Sec 242.Make sure that the Director is given reasonable
opportunity to be heard.
Also,
the provision relating to removal shall not apply where the company has availed
itself of the option to appoint not less than two – thirds of the total number
of directors according to the principle of proportional representation.
Section 169: (2) 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 special notice shall be required of any resolution, to
remove a director, or to appoint somebody in the place of a director so
removed.
What
is Special Notice?
Section- 115 of Companies Act, 2013 explains Special notice
to Company-
·
Who send Special Notice?
·
Please note that only shareholder/s
holding not less than 1% of total voting power or holding shares on which an
aggregate sum of not less than Rs. 5,00,000 has been paid up as on the date of
notice, can send special notice to the Company for removal of director.
·
Who signs the Special Notice?
·
Shareholders
·
Who decide the Date of meeting?
·
The legal right to decide the date
of meeting is with the shareholders.
·
What is the minimum gap between notice of meeting and date
of meeting?
·
The special notice shall not be sent
earlier than three months from the date of meeting but at least 14 clear days
before the date of the meeting, at which the resolution is to be moved.
·
What are the points to be kept in mind from company
perspective?
·
The Company to intimate the
Directors of the Company. On receipt of notice of a resolution to remove a
director, the company shall immediately send a copy thereof to the director
concerned, and the director, whether or not he is a member of the company,
shall be entitled to be heard on the resolution at the meeting.
·
Whether the concerned Director is given ample opportunity of
being heard?
·
Yes. The Director is given
reasonable opportunity of being heard. The director concerned may make
representation in writing to the company and may request its notification to
the members of the company. The Director
may request to send his representations along with the notice to the members
and to be heard at the meeting. However, the rights may not be available, if on
the application either of the Company or of any other person who claims to be
aggrieved.
Detailed Process for removal of Director by shareholders
1.
|
A Special
notice for the removal of director be furnished by No. of members
(according to requirement of Section- 115 of Companies Act, 2013) to the
company at least 14 days before the meeting at which it is to be moved,
exclusive of the day on which the notice is served and the day of the
meeting. (Section 169)
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2.
|
The company shall,
immediately after the receipt of special notice of the intention to move any
such resolution, give its members notice of the resolution in the same manner
as it gives notice of the meeting.
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3.
|
If it is not possible for the company to give
notice to all the members, publish by advertisement in the newspaper having
an appropriate circulation not less than 7 days before the meeting.
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4.
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The company must
give intimation to the concerned director of the intended resolution by
sending a copy of the special notice received by it, forthwith on receipt
thereof. The director shall have the right to be heard on the resolution at
the meeting.
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5.
|
The director, who is
sought to be removed, can make a representation in writing against his
removal and request the company to notify it to the company’s
members [section 169]. If the director requests the company to
notify the members of the company his representation against his removal and
the representation is of reasonable length and it has been received not too
late, the company must
If the representation
could not be sent to the members because it was received too late or because
the company made a default in sending it, the company must read out the
representation at the annual general meeting, if the director requires it to
do so. In addition, director can make oral representation at the annual
general meeting.
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6.
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Hold and convene a
General meeting to discuss besides others the following matters: To pass
a [Ordinary resolution] for the removal of director.
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7.
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In case of listed
companies, file a copy of the proceeding of the general meeting in the Stock
exchange (s) where the securities of the company are listed.
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8.
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File [e-form
no. DIR 12] with the Registrar of Companies within 30 days of passing
the resolution.
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9.
|
Pay the requisite fees,
as prescribed by the Companies (Registration Offices and Fees) Rules,
2014.
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For
more details, contact CS Neha Seth at csnehaseth.cp@gmail.com
or call us at 9871903449
