In my earlier post here I have raised some issues related to issuance of secretarial standards. As these are curable technical issues. I continue my study of these Secretarial Standards.
In this post, I will discuss Secretarial Standards related to convening a board meeting and general meeting under SS – 1 and SS – 2 respectively.
Authority for Board Meeting:
According to Paragraph 1.1.1 of SS – 1;
- Any Director of a company may, at any time, summon a Meeting of the Board, and
- the Company Secretary or where there is no Company Secretary any person authorised by the Board in this behalf, on the requisition of a Director, shall
convene a Meeting of the Board, in consultation with
- the Chairman or
- in his absence, the Managing Director or
- in his absence, the Whole-time Director, where there is any,
unless otherwise provided in the Articles.
So, ultimate authority for convening a Board Meeting is a director. A director including independent director may summon a meeting under own authority. Company Secretary or any other person so authorized may act as intermediary working on requisition. The use of term “shall” suggest that after requisition from director, company secretary is bound to summon a meeting of the Board irrespective of outcome of “consultation” with the chairman, or managing director or whole tome director. What will be legal consequences for company secretary if the chairman, or managing director or whole tome director, give negative response on “consultation”? Will he convene meeting or not?
The Chairman may, unless dissented to or objected by the majority of Directors present at a Meeting at which a Quorum is present, adjourn the Meeting for any reason, at any stage of the Meeting. [Paragraph 1.1.2 of SS – 1]
Here, chairman is just an intermediary otherwise ultimate authority lies with majority of directors. This tries to check any dictatorship of chairperson.
Every Meeting shall have a serial number. [Paragraph 1.1.2 of SS – 1]
It is not clear, from where these serial number start. Companies may continue with present practice if they number their meeting. In case companies has no such practice, it will be better if they start numbering form either first meeting of financial year 2015 – 16 or from first meeting after incorporation (may not be practically). However, it will be fine if companies start such numbering form first meeting after these standards came into effect.
Time Place mode and Serial number of board Meeting:
A Meeting may be convened at any time and place, on any day, excluding a National Holiday. [Paragraph 1.1.2 of SS – 1]
Notice of the Meeting, wherein the facility of participation through Electronic Mode is provided, shall clearly mention a venue, whether registered office or otherwise, to be the venue of the Meeting and it shall be the place where all the recordings of the proceedings at the Meeting would be made. [Background Paragraph 1 after Paragraph 1.1.2 of SS – 1]
A Meeting adjourned for want of Quorum shall also not be held on a National Holiday. [Background Paragraph 2 after Paragraph 1.1.2 of SS – 1]
Any Director may participate through Electronic Mode in a Meeting, if the company provides such facility, unless the Act or any other law specifically does not allow such participation through Electronic Mode in respect of any item of business. [Paragraph 1.1.3 of SS – 1]
Directors shall not participate through Electronic Mode in the discussion on certain restricted items, unless expressly permitted by the Chairman. Such restricted items of business include approval of the annual financial statement, Board’s report, prospectus and matters relating to amalgamation, merger, demerger, acquisition and takeover. Similarly, participation in the discussion through Electronic Mode shall not be allowed in Meetings of the Audit Committee for consideration of annual financial statement including consolidated financial statement, if any, to be approved by the Board , unless expressly permitted by the Chairman. [Background Paragraph 1 after Paragraph 1.1.3 of SS – 1]
In case of Background Paragraph 1 after Paragraph 1.1.3 of SS – 1, express permission by chairperson is essential condition and it is discretionary power of chairperson. I suggest there may be some express policy and no willing director should be disallowed from taking part in such important matters.
Authority for General Meeting
A General Meeting shall be convened by or on the authority of the Board. [Paragraph 1 after Paragraph 1.1 of SS – 2]
The Board shall, every year, convene or authorise convening of a Meeting of its Members called the Annual General Meeting to transact items of Ordinary Business specifically required to be transacted at an Annual General Meeting as well as Special Business, if any. If the Board fails to convene its Annual General Meeting in any year, any Member of the company may approach the prescribed authority, which may then direct the calling of the Annual General Meeting of the company. [Background Paragraph 1 after Paragraph 1.1 of SS – 2]
It seems to be reciting of a provision of law but not clearly mention that to which authority a member should approach in case of board failure to convene meeting.
The Board may also, whenever it deems fit, call an Extra-ordinary General Meeting of the company. [Background Paragraph 2 after Paragraph 1.1 of SS – 2]
The Board shall, on the requisition of Members who hold, as on the date of the receipt of a valid requisition,
(a) in the case of company having a share capital, not less than one-tenth of the paid-up share capital carrying Voting Rights or
(b) in the case of a company not having share capital, not less than one-tenth of total voting power of the company, call an Extra-ordinary General Meeting of the company. [Background Paragraph 3 after Paragraph 1.1 of SS – 2]
I propose law may simply propose one – tenth of total voting power. Is not it possible a company limited by members has share capital without voting right?
If, on receipt of a valid requisition having been made in this behalf, the Board, within twenty-one days from the date of such receipt, fails to call a Meeting on any day within forty-five days from the date of receipt of such requisition, the requisitionists may themselves call and hold the Meeting within three months from the date of requisition, in the same manner in which the Board should have called and held the Meeting. [Background Paragraph 4 after Paragraph 1.1 of SS – 2]
Explanatory statement need not be annexed to the Notice of an Extraordinary General Meeting convened by the requisitionists and the requisitionists may disclose the reasons for the Resolution(s) which they propose to move at the Meeting. [Background Paragraph 5 after Paragraph 1.1 of SS – 2]
Here, it is optional.
Such requisition shall not pertain to any item of business that is required to be transacted mandatorily through postal ballot. [Background Paragraph 6 after Paragraph 1.1 of SS – 2]
Is it not inherent right of members to make requisition on all matters of business importance? If not meeting on such matters required to be transacted through postal ballot, should not members allowed to requisition postal ballot?
At the end of this post, I want to mention that some provisions I criticised here may be taken from the Act or relevant Rules and in such case may be treated my suggestion for relevant changes the Act or these Rules.
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