COMMENTS ON INDIAN COMPANY LAW
In this column , I will discuss important company law case laws and intricacies surrounding the interpretation of Indian Company Law.
Sunday, January 3, 2021
Please Extend the deadline of CFSS 2020 SCHEME up to 30 June 2021 @R V ...
Monday, December 21, 2020
Compliances under POSH- Prevention of Sexual Harassment at Workplace - A...
Vishakha Guidelines
Supreme
Court of India Judgement 1997
(Ref: Vishakha
and Ors. V State of Rajasthan)
•
SC laid down the guidelines and norms specified
hereinafter for due observance at all work places or other institutions, until
a legislation is enacted for this purpose. …and it is
further emphasized that this would be treated as the law declared by this Court
under Art. 141 of the Constitution.”
•
Estalished that
“Sexual Harassment violates a woman’s right in the workplace and is thus
not just a matter of personal injury”
•
==================
•
Sexual Harassment – Definition
Sexual Harassment includes any one or more of the following unwelcome acts
or behavior (whether directly or by implication) namely :
• physical contact and advances; or
• a demand or request for sexual
favour; or
• sexually colored remarks; or
• showing pornography; or
• other offensive
or derogatory pictures, cartoons; or
any other unwelcome physical, verbal or non-verbal
conduct of sexual nature
Aggrieved or Affected Women
´ All women working or visiting any workplace
•
Regular employee
•
Temporary employee
•
Adhoc
•
Daily wages
´ Engaged directly or indirectly (contractor)
´ Working for remuneration, voluntary or otherwise
´ Terms of employment may be express or implied
´ Could be a co-worker, contract worker, probationer, trainee, apprentice,
visitor
´ Also covers woman working in dwelling place or house
Sexual Harrassment under
Sec 354 A of the Indian Penal Code
Physical contact and advances
involving unwelcome and explicit sexual overtures or
•
A demand of request for sexual
favours or
•
Showing pornography against the
will of a woman or
•
Making sexually coloured remarks
Imprisonment for upto 5 years or
fine or both
Every employer
shall--
(a)
Provide a safe
working environment at the workplace which shall include safety from the
persons coming into contact at the workplace;
(b)
Display at conspicuous
place in the workplace, the penal consequences of sexual harassments: and the
order constituting, the Internal Committee under this law;
(c)
Organize workshops
and awareness programmes at regular intervals for sensitizing the employees
with the provisions of the Act and orientation programmes for the members of the
Internal Committee in the manner as may be prescribed;
(d)
Provide necessary
facilities to the Internal Committee or the Local Committee, as the case may
be, for dealing with the complaint and conducting an inquiry;
(e)
Assist in securing
the attendance of respondent and witnesses before the Internal Committee or the
Local Committee, as the case may be;
DUTIES OF EMPLOYER
•
Every
employer shall--
(a) Provide a safe working
environment at the workplace which shall include safety from the persons coming
into contact at the workplace;
(b) Display at any conspicuous place
in the workplace, the penal consequences of sexual harassments: and the order
constituting, the Internal Committee under this law;
(c) Organize workshops and awareness
programmes at regular intervals for sensitizing the employees with the
provisions of the Act and orientation programmes for the members of the
Internal Committee in the manner as may be prescribed;
(d) Provide necessary facilities to
the Internal Committee or the Local Committee, as the case may be, for dealing
with the complaint and conducting an inquiry;
(e) Assist in securing the attendance
of respondent and witnesses before the Internal Committee or the Local
Committee, as the case may be;
DUE DILIGENCE FOR POSH COMPLIANCE
1. Whether Company has formulated an internal policy / charter /
resolution / declaration for prohibition , prevention & redressal of
sexual harassment at work place. 2. Whether
Company has constituted an Internal Complaints Committee? 3. Whether
Company has displayed at conspicuous places in the factory about penal
consequences of sexual harassment? 4. Whether
Company has organized workshops / awareness programs at periodic intervals? 5. Whether
Company has constituted the Local Complaints Committee (LCC)? 6. Whether
Annual Report has been filed with employer and district office on time? |
Friday, December 11, 2020
Removal of Nominee Director by Passing a Special Resolution in an EGM @...
Monday, November 30, 2020
Ministry of Home Affairs advises NGOs on 3 basic requirements for switch...
1.Obtaining Darpan ID,
2.Opening FCRA a/c in SBI New Delhi
main branch
3. Seeding Aadhaar no. of all office
bearers — depending on whether they have applied for FCRA nod or are yet to.
Advisory for Compliance by FCRA
NGOs/Associations with the Amended Provisions in FCRA, 2010 and FCRR, 2011
Note: -
This advisory is meant for any
association that belongs to one of the following categories:
(a) Those who have submitted application
for registration/Prior Permission
(b) Those who have submitted application for
Renewal
(c) Those who are yet to submit application
for registration/Prior Permission
(d) Those who are yet to submit
application for renewal
(e) those who hold valid FCRA registration/Prior
Permission and are not in immediate of renewal of such certificate/PP.
i. The NGO/person may take note of the
amendments in the FCRA, 2010 and ensure compliance. These amendments may be
visited at (https://fcraonline.nic.in).
ii. The NGO/person may take note of the
amendments in the FCRR, 2011 for compliance.
These amendments may be visited at (https://fcraonline.nic.in/home/PDF_Doc/fc_rules_12112020.pdf).
iii. Among various requirements arising from these amendments, three key
compliances relate to:
(i)
Obtaining a DARPAN ID from NITI Aayog
portal;
(ii)
(ii) Opening the Main “FCRA Account” in
SBI Parliament Street Branch, New Delhi; and
(iii)
Seeding Adhaar details of all office
bearers. An advisory statement on these three key compliances is attached
herewith. It may be accessed at (https://fcraonline.nic.in/home/PDF_Doc/fc_rules_12112020.pdf).
iv. Regarding compliance on FCRA “Bank
Accounts”, a separate public notice dated 13.10.2020 has been issued with
detailed clarifications, and it can be accessed at (https://fcraonline.nic.in/home/PDF_Doc/fc_notice_13102020.pdf).
A standard operating procedure (SOP) to
be followed by all branches of SBI is placed on the web portal (https://fcraonline.nic.in/home/PDF_Doc/fc_sop_20112020.pdf) and also available on the web portal of the State Bank of India.
2. Every person/association is,
therefore, requested to carefully peruse and familiarize itself with all the amendments
in the Act and the Rules and related contents as indicated above to ensure
thorough compliance.
NGO’s proactive response would facilitate a
quick and smooth transition to the amended legal regime.
(Office of FCRA Wing of Foreigners
Division, MHA)
Sunday, November 29, 2020
Sunday, November 22, 2020
Special Resolution under clause (ii) of regulation 17(6) (e) of LODR Reg...
Whether Special Resolution is to be passed if total remuneration paid to all executive promotor directors exceeds 5% of the net profits of a listed company under LODR?
SEBI held that in case if the aggregate remuneration payable to all executive promoter directors exceeds 5 per cent of the net profits, the Company shall be required to pass a special resolution under clause (ii) of regulation 17(6) (e) of LODR Regulations, subject to the condition that such approval of the shareholders shall be valid only till the expiry of the term of such directors.
Manaksia Aluminum Company Limited raised
the following question with SEBI
In terms of regulation 17(6)(e) of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (10DR Regulations’), it is understood that in case the listed entity has one executive promoter director, it can pay upto 2.5% of the net profits or rupees 5 crore, whichever is higher, without passing a special resolution.
In case of more than one such director in the entity, there is only a limit of 5 per cent of the net profits and absolute limit is not specified.
whether the Company shall be required to pass a
special resolution under clause (ii) of regulation 17(6) (e) of LODR
Regulations for appointment of one more executive promoter director if the
aggregate remuneration payable to all executive promoter directors exceeds 5
per cent of the net profits or an absolute aggregate limit of INR 5 crore shall
also become applicable as mentioned in clause (i) of the said regulations.
clause (ii) of regulation 17(6) (e) of LODR Regulations
prescribes only a percentage limit (i.e. where there are more than one
executive directors who are promoters or members of the promoter group, the
aggregate annual remuneration to such directors exceeds 5 per cent of the net
profits of the listed entity) and no absolute limit has been specified.
In case if the aggregate remuneration payable
to all executive promoter directors exceeds 5 per cent of the net profits, the
Company shall be required
to pass a special resolution under clause (ii) of regulation 17(6) (e) of LODR
Regulations, subject
to the condition that such approval of the shareholders shall
be valid only till the
expiry of the term of such directors.
It may also be noted that the above views are
expressed by SEBI only
with respect to the clarification sought in your letter under reference with
respect to the LODR Regulations and do not affect the
applicability of any other law or requirements of any other SEBI Regulations,
Guidelines and Circulars administered by SEBI or of the laws
administered by any other authority.
Saturday, November 21, 2020
INVESTIGATION OF COMPLAINTS AGAINST COMPANY SECRETARY THROUGH ONLINE NOW...
G.S.R. 696(E).— 10th November 2020
Company Secretaries (Procedure of Investigations of
Professional and Other Misconduct and Conduct of Cases) Rules, 2007
(hereinafter referred to as said rules), in rule 2, in sub-rule (6), after clause
(d), the following clause shall be inserted, namely:—
“(dd) “electronic mode” means and includes--
(i) filing of complaint, written statement, rejoinder,
affidavits, or any other recognised electronic means or through the online
portal; submissions and any other documents by email
(ii) online payment of prescribed fees or amount of fine
or cost as may be imposed by the Board of Discipline or the Disciplinary
Committee;
(iii) appearance and hearing through video conference or
other audio visual means;
(iv) service of notices or summons or communications by
email or any other recognized electronic means;”.
Service of Notice
in clause (a), after the words, “at his professional
address”, the words, “or at email address as per the records of the Institute
or such other recognized electronic modes”, shall be inserted;
(ii) in clause (b),
(a) after the words, “address of its head office”, the
words, “or at email address as per the records of the Institute” shall be
inserted;