董事取消资格——条件、后果与恢复

A company is an artificial person and managed by natural persons, i.e., Directors of the company collectively known as board of directors. Only an Individual, i.e., a natural person, can be appointed as directors of the company.

Company is an artificial person having a separate legal entity from its directors. Since, the company is run and represented by directors, only company can’t be punished in case of non-compliance. Specified penalties and punishments are also applicable on directors.

Section 164 of Companies Act, 2013 specified certain cases where a director is disqualified from being appointed as director of the company. During the period of disqualification, a person can’t be appointed as director of the company. 

In this article, we have analyzed the provisions related to disqualification like conditions of disqualification, consequences, how to restore the same etc. So, if you are also a director of any company, then this piece of write-up will help you know what disqualifications can restrict you to remain on board for another term or if you are a disqualified director, how you can revive your directorship.

1.   Criteria for disqualification for directors of a company

The intention and the purpose of having disqualifications of a director in the law is to appoint a suitable person as director to protect the investors from mismanagement, ensure compliance of filing of annual accounts and annual returns, increase compliance rate of filing statutory documents and infusing good corporate governance in the regulations of corporate affairs and to protect the interest of the investors.

Disqualification of directors is managed by Section 164 of the Companies Act. Section 164 disqualifies a director either for his own default or for default of the company in which he is a director.

1.1 Disqualification due to personal actions of the directors

As per Section 164(1), following person shall not be eligible to appoint as director of the company:

1. Person of unsound mind and stands so declared by a competent court;
2. Undischarged insolvent;
3. Person who has applied to be adjudicated as an insolvent and his application is pending;
4. Any person who has been convicted by a court of any offence, whether involving moral turpitude or otherwise, and sentenced in respect thereof to imprisonment for 6 months or more and a period of 5 years has not elapsed from the date of expiry of the sentence. Therefore, after expiry of sentence, a person is ineligible to be appointed for next 5 years.
5. However, if a person has been convicted of any offense and sentenced to imprisonment for such office for 7 years or more then he shall not be eligible to be appointed as a director in any company;
6. Where an order, disqualifying him for appointment as a director, has been passed by a court or Tribunal and the order is in force;
7. Any person who has not paid any calls in respect of any shares of the company held by him, whether alone or jointly with others, and 6 months have elapsed from the last day fixed for the payment of the call;
8. he has been convicted of the offense dealing with related party transactions under section 188 at any time during the last preceding 5 years; or
9. he has not complied with section 152(3), i.e., DIN has not been allotted to him.
10. he has not complied with the provisions of section 165(1), i.e., a director can’t hold directorship, including alternate directorship, in more than 20 companies at the same time.

1.2 Disqualification for offenses of company

Any non-compliance by the company have an impact on the directors as well. As per Section 164(2) of Companies Act, in following cases, a director shall be disqualified from being appointed as director due to non-compliance by company:

1. Non-filing of Financial statements or Annual return for continuous 3 Financial year.
   1. Any person who is or who has been a director of a company which has failed to file its annual return or Financial statement for a continuous period of 3 Financial years shall be disqualified from being appointed as director.
2. Failure to repay deposits or interest or redeem debentures, etc.
   1. Similarly, if a company defaults in making following payments or redemption for a continuous period of one year or more:
      • Repay the deposit accepted by the company or pay interest thereon; or
      • Redeem any debentures on the due date or pay interest due thereon; or
      • pay any dividend declared

Then any person who is or who has been been a director of such company shall be disqualified from being appointed as director.

• Therefore, all the directors who are holding directorship during the relevant period shall be disqualified irrespective of the fact whether they are directors when the due date of filing of Financial statements or annual return of 3rd year has expired or when 1 year from due date of payment expired.
• Disqualified directors shall not be eligible to be re-appointed as a director of same defaulting company or any other company for a period of 5 years from the date on which the said company fails to do so.
• However, where a person is appointed as a director of a company which is involved in above mentioned defaults then such new director shall not incur the disqualification for a period of 6 months from the date of his appointment.

2. Consequences of Disqualification

a. Vacation of Office of Director in Existing Company

• Any person who is disqualified u/s 164 of Companies Act, 2013 shall vacate his office of director.
• However, in case of disqualification u/s 164(2), the director shall vacate his office in all companies other than the company which is in default.

b. Disqualified from appointment or re-appointment as director

• Any disqualified director can’t be appointed or reappointed as director in any other company for the following period:

3. 董事丧失资格时需提交的表格

a. 董事需提交的表格

• 每位董事在受聘或续聘前，均须根据第164条规定，以DIR-8表格形式将其丧失资格的情况告知公司。

b. 公司需提交的表格

• 公司在收到DIR-8表格的信息后，应在收到之日起30日内向公司注册处（RoC）提交DIR-9表格。
• 若公司未能提交财务报表或年度申报表，或未能根据第164(2)条偿还任何存款、利息或股息，公司应立即向公司注册处提交DIR-9表格，并提供相关财政年度内公司所有董事的姓名和地址。

如果公司未能在导致第164(2)条项下丧失资格的违规行为发生后30日内提交DIR-9表格，则公司相关负责人将被视为违规责任人。

C. 公司注册处（RoC）更新记录

• 在收到根据分则(2)提交的DIR-9表格后，公司注册处应立即登记该文件，并将其存入文件档案以供公众查阅。

4. 不合规的处罚

• 如果某人在明知其董事职位已空缺的情况下仍履行董事职责，则应处以不少于10万卢比、最高可达50万卢比的罚款。
• 若违反第164条规定，公司及每位违规的负责人均应承担5万卢比的罚款。此外，若违规行为持续，则在违规期间每日需额外缴纳500卢比的罚款，公司最高罚款额为30万卢比，违规负责人最高罚款额为10万卢比。

5. 恢复公司丧失资格董事的任职资格

一旦丧失资格的期限届满，或导致丧失资格的情形（如未解除破产状态、精神失常等）消除，董事丧失资格的状态即告终止。

然而，董事资格不会自动恢复。董事需要向公司注册处提交DIR-10表格，以解除丧失资格的状态，并将其姓名从丧失资格董事名单中移除。

6. Frequently Asked Questions

a. 丧失资格是否会影响公司董事的持股情况？

如果董事持有公司股份且为公司注册股东，即使其已离职，丧失董事资格也不会影响其持股情况。

b. 如果公司所有董事都丧失了资格，应采取什么行动？

公司可能会因自身违规导致所有董事丧失资格。在这种情况下，公司发起人将任命所需数量的董事，直至股东在股东大会上选出新董事为止。

c. 上述丧失资格的标准是否适用于所有公司和董事？

上述丧失资格的标准适用于所有公司，无论是私营公司、一人公司、小型公司还是公众公司（无论是否上市）。

d. 如何查询董事的丧失资格状态？

• 过去几年，企业事务部（MCA）一直严格执行《2013年公司法》的相关规定。在此背景下，MCA正根据公司注册处（Registrar）的管辖范围，在门户网站上公布被取消资格的董事名单。
• 公司注册处（RoC）仅发布了根据第164(2)(1)条规定被取消资格的董事名单，不包含其他情况。
• 目前已发布的被取消资格董事名单可在此处查看：点击此处。
• 被取消资格的董事名单包含董事识别码（DIN）、董事姓名、企业身份识别码（CIN）、公司名称及取消资格的期限。因此，您可以轻松查询到被取消资格的董事姓名及其取消资格的期限。

e.   What are the Remedies availed to a disqualified director of a company?

The remedy available to a disqualified director is that he/she can approach the High Court through a writ petition for the upliftment of disqualification and activation of the DIN and for passing a stay order on the action taken by the Registrar of Companies. Alternatively, a disqualified director can approach NCLT.It may also happen that MCA may bring any amnesty scheme for a particular period to allow erring companies to file their pending returns or financial statements of past periods and activate the DIN of disqualified directors.Avoid disqualification risks—Consult with us now for expert advice and more details.