The role of company secretaries in any company is vital. From preparation of meetings, setting up the right papers, circulating papers of meetings in advance, to extending all kinds of support relating to meetings, a company secretary has many responsibilities. He or she also does company filings and takes care of related records. In fact, it won’t be wrong to say that a company secretary acts as the Chief Governance Officer of a company and shares several responsibilities with the directors under the Companies Act. In this blog, we discuss the functions of the company secretary as given under Section 205 of Companies Act 2013.
Who is a company secretary?
A company secretary is an officer of the company who is in charge of ensuring that the company complies with the terms of the Companies Act, 2013 and other corporate, taxes, industrial, and economic laws that apply to businesses in general.
As per law, a ‘Company Secretary’ is a person who is a member of the Institute of Company Secretaries of India and who is appointed as such by a company to perform the functions of a company secretary [Section 2(1)(c) the Company Secretaries Act, 1980].
Who all are required to appoint a company secretary?
Law specifies that there are certain companies that are required to mandatorily appoint a whole-time company secretary. These companies include:
- Listed companies
- Unlisted public companies having a paid-up share capital of rupees 10 crores or more
- Private companies having a paid-up share capital of rupees 10 crores or more
Duties and Functions under Section 205 of Companies Act
Considering the importance of their role, it was the first time when the duties of company secretaries were laid down in company law by virtue of Section 205 of Companies Act 2013. According to Section 205 of Companies Act 2013 read with Rule 10 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014, the company secretary has to discharge the below-mentioned duties and functions:
- To report to the company’s Board of Directors on conformity with the terms of this Act, rules, and other laws applicable to the company
- To guarantee that the company adheres to the relevant secretarial standards
- To offer the company’s directors the advice they need to carry out their duties, responsibilities, and powers
- To assist in the convening of meetings, to attend Board, Committee, and General meetings, and to record the minutes of these meetings
- To seek approvals from the Board of Directors, general meeting, government, and any other authorities as may be needed under the provisions of Companies Act 2013
- To help the Board members in the conduct and management of the company’s affairs
- To help and advise the Board in maintaining effective corporate governance and in compliance with the corporate governance standards and best practices
- To represent the company before many regulators, Tribunal, and other authorities under the Companies Act in connection with the performance of various functions under the Act
- To fulfill such other obligations as may be assigned by the Board from time to time
- To fulfill any other obligations as may be prescribed under the Act or Rules [Companies Act casts upon the company secretary several duties and liabilities through a variety of different sections, for example, signing of annual return under Section 92, signing of financial statements under Section 134(1), etc.]
It might be necessary to note that Secretarial Standards are guidelines developed by the Institute of Company Secretaries of India to standardize secretarial practices under the Companies Act and in other areas relevant to secretarial activities. Secretarial standards published by the Institute of Company Secretaries of India which was established under Section 3 of the Company Secretaries Act, 1980, and approved by the Central Government, are part of the law itself, according to Explanation to Section 205(1).
According to Section 205(1) (a), one of the tasks of the company secretary is to report to the board on compliance not only with the Companies Act but also with all other Acts that apply to the company. This particular clause, which has been inserted in the Companies Act for the first time, is quite significant and asks for a greater level of accountability on the part of company secretaries, both in employment and in full-time practice.
Further, Section 205(2) of Companies Act 2013 states that the provisions of Sections 204 (on Secretarial Audit for bigger companies) and 205 (on duties and functions of CS) do not impair the duties and powers of the Board of Directors, chairperson of the company, managing director, or full-time director under this Act or any other law.
Similar requirement as that of the Listing agreement
The listing agreement states in Clause 49(1)(c)(iii) under corporate governance that the board shall, on a regular basis, assess compliance reports generated by the company in respect of all laws applicable to it as well as steps taken by the company to address instances of non-compliance.
Since this provision relating to compliance with all applicable laws has been present in the listing agreement for quite some time, this method of reviewing and assuring compliance (through review of compliance reports) is expected to be already present in all listed companies.
However, now a similar provision has found a place in Section 205 of Companies Act 2013 which requires company secretaries to report about compliance with all applicable laws. Hence, now it would be needed not only in the case of listed companies but for all categories of companies that are registered and incorporated under the Companies Act.
Responsibility of compliance under Section 205 of Companies Act
As a compliance officer, the company secretary bears a larger responsibility for ensuring that all applicable laws are being followed by the corporation from time to time. The company secretary must virtually ensure that compliance with all other laws, with the exception of the Companies Act and rules made thereunder, is being properly done by the appropriate departmental heads responsible for the function, and the company secretary only checks and monitors compliance and reports to the board members.
That is why the company secretary has a critical function to perform since he must report to the managing director/board members that all the essential compliance has been completed. It goes without saying that the highest governing body, namely the board of directors, would rely on the report given by the company secretary on compliance issues.
The role of the company secretary has been significantly expanded under the Companies Act of 2013, in so far as he is now accountable not just for compliance with Company law, but also for compliance with all other applicable laws.
List of references:
- “SEBI | Corporate Governance In Listed Companies – Clause 49 Of The Listing Agreement”. Sebi.Gov.In, 2022, https://www.sebi.gov.in/legal/circulars/oct-2004/corporate-governance-in-listed-companies-clause-49-of-the-listing-agreement_13153.html.
- Companies Act, 2013: Section 204 and 205
- Company Secretaries Act, 1980: Section 2(1)(c)
- Clause 49(1)(c)(iii) of Listing Agreement
- Rule 10 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014
- Companies Act, 2013: Section 92
- Companies Act, 2013: Section 134(1)
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