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This article is written by Arya Mittal from Hidayatullah National Law University. The article lays down the responsibilities and duties of the company secretaries.

Introduction

Company Secretary (CS) is among the most esteemed professions which also assures a lucrative income after some years of experience. As the term itself suggests, these professionals are responsible for the proper functioning of the company by ensuring compliance with all the laws applicable to the company. Company Secretaries can be employed in a company or they can offer their services to the company through their practice. This article seeks to discuss the responsibilities and duties of company secretaries in general as well as specifically for company secretaries in practice and company secretaries in employment.

Duties of a CS under different laws

Duties under the Companies Act, 2013

Section 205 of the Companies Act, 2013 read with Rule 10 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 deals with the functions of a CS. Some of the major duties and functions of a CS can be inferred as follows:

  1. To ensure compliance with laws prevalent and applicable on the company and report to the Board of Directors (BoD) about the same.
  2. To facilitate approval and conduct of Board meetings and general meetings of shareholders.
  3. To ensure compliance with the applicable secretarial standards.
  4. To represent the company before various authorities. 
  5. To ensure that the company engages in good corporate governance practices. 
  6. Any other function that the Central Government may prescribe.

Duties under the Companies Secretaries Act, 1980

CS are governed by the Institute of Company Secretaries of India (ICSI) which is the regulatory authority set up under the Companies Secretaries Act, 1980. The Act governs the conduct of CS professionals in India. It provides for a whole chapter i.e. Chapter V which deals with misconduct. It is the legal as well as the moral responsibility of company secretaries to ensure that they do not indulge in any form of misconduct as provided in the Act, failing which, they have to face severe consequences. Schedule I and Schedule II also enlist some of the criteria which may be considered as misconduct. Therefore, it is the duty of every CS to abide by the law and ensure that no misconduct occurs on their part. 

Responsibilities of a CS

Corporate laws advisory

The exhaustive curriculum of the CS course makes a CS a competent corporate law advisor. Company secretaries have knowledge of different corporate and commercial laws ranging from company laws, securities laws, labour laws and a lot more. Therefore, they are usually engaged in providing advisory services to companies on complex legal issues relating to the company. Companies can consult CS for different laws which include but are not limited to the Companies Act, the Securities Contracts (Regulation) Act, the Depositories Act, the Foreign Exchange Management Act and the Competition Act.

Drafting agreements and other documents

No wonder why the students of CS Final have a whole module on drafting and pleadings! It is indeed one of the most important functions that a CS needs to perform. The most important documents of a company i.e. the Memorandum of Association and Articles of Association are usually drafted by a CS. Not only these charter documents but there are many other documents that a CS needs to prepare. Some of these are mentioned below: 

  1. Pre-incorporation contracts;
  2. Shareholders agreement, sale agreement, collaboration agreement etc;
  3. Minutes of the meeting;
  4. BoD report;
  5. Legal opinion and advisory notes;
  6. Legal notices, applications and petitions;
  7. Prospectus/offer for sale/letter of offer/other documents related to issue of securities.

Representation services

CS professionals are allowed to represent their clients/companies before various State authorities, some of which are as follows: 

  1. Registrar of Companies (ROC);
  2. Regional Directors (RD);
  3. National Company Law Tribunal (NCLT);
  4. National Company Law Appellate Tribunal (NCLAT);
  5. Reserve Bank of India (RBI);
  6. Securities and Exchange Board of India (SEBI);
  7. Insurance Regulatory Authority of India (IRDA);
  8. Competition Commission of India (CCI);
  9. Real Estate Regulatory Authority of India (RERA);
  10. Stock Exchanges (SE).

Responsibilities of a CS in practice

Certification services

One of the most basic responsibilities of a CS includes certification services. Many statutory compliances and documents require certification by a CS. Companies have to file different forms throughout the year as a part of compliance. These forms are mostly certified by a CS in practice. Further, many other documents in the pre-incorporation phase are certified by a CS before they are filed with the concerned authorities. Additionally, they are also responsible for signing and certifying the annual returns of the company. 

Secretarial  auditor 

Certain companies have been prescribed under Section 204 of the Companies Act, 2013 read with Rule 9 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014. These companies include:

  1. Every listed company
  2. Every public company having-
    1. paid-up share capital of fifty crore rupees or more or;
    2. turnover of two hundred fifty crore rupees or more or;
    3. outstanding loans or borrowings from banks or public financial institutions of one hundred crore rupees or more.

Such companies are required to comply with secretarial audits which shall be conducted by a CS in practice. The report of such an audit is attached with the report of BoD.

Services related to finance and accounting

The comprehensive curriculum also makes company secretaries competent for providing various accounting and finance-related services. They often engage in making project reports for companies and conduct feasibility studies for their future projects. They also advise on tax planning, tax management and various compliance relating to direct as well as indirect taxes. They also provide consultancy on matters such as budgetary controls and choice of appropriate capital structure.

Other miscellaneous responsibilities

In recent times, company secretaries have also started taking on new roles and responsibilities. They are eligible to be appointed as insolvency professionals after clearing the exams and training stipulated by the Insolvency and Bankruptcy Board of India. They are also eligible and can choose to work as GST professionals and registered valuers which differ from their traditional role.

Responsibilities of a CS in employment

Part of KMP

Section 203 of Companies Act, 2013 read with Rule 8 of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 provides that every listed company and every other public company having a paid-up share capital of ten crore rupees or more shall have the following whole-time Key Managerial Personnel which also includes a CS. Further, according to Rule 8A of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014, every private company which has a paid-up share capital of 10 crore rupees or more is also mandated to have a whole-time company secretary. Therefore, CS is an integral part of KMP and thereby has a responsibility to advise the BoD at all times in relation to the day-to-day functioning of the company.

Compliance officer

It cannot be disputed that CS is indeed the compliance officer of the company. Owing to its characteristics, a company is supposed to make a large number of compliances under various laws. Compliance with these laws is ensured by a CS. From the filing of different forms to ensuring good corporate governance practices, a CS does it all.  

Conscience seeker of a company

A CS is popularly referred to as the ‘conscience seeker’ of a company. This is because it is considered that the CS will try at all times that the company is following good corporate governance practices. Ensuring due diligence and compliance is one such practice. Another example could be the timely conduct of board meetings and general meetings where different categories of directors and shareholders actively participate in their respective meetings. The Companies Act of 2013 aims at ensuring good corporate governance practices and this belief is strengthened by the presence of CS in companies. 

Custodian of statutory books

Companies are required to maintain many registers, books and documents as a mandate of law. These include Register of Members, Register of Company, Register of Directors and Key Managerial Personnel, Register of Charges, Register of Renewed and Duplicate Share Certificates, Register of Employee Stock Options, Register of Shares/Other Securities Bought Back,  Minutes book, secretarial records etc. A CS acts as a custodian of these documents and is therefore responsible for the same. 

Convenor of meetings of the company

It is usually the CS who is responsible for convening the general meetings and board meetings, though other persons authorised by BoD are also eligible. However, in common practice, the CS usually convenes a general meeting or a meeting of BoD. Moreover, the CS is also responsible for preparing the minutes of the meeting and such minutes book is preserved by CS only as specified above.

Conclusion

Company Secretaries have an important role in the functioning of a company. They have several statutory as well as moral duties towards the company. They take up different roles and responsibilities such as compliances, representation and drafting. To conclude, with the increase of companies, it is hopeful that the scope of this profession is only going to increase in the near future and thus, a person can take up this esteemed profession to build a successful career. 

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References


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