The Board of Directors of a Company may appoint a person, not being a person holding any alternate directorship for any other director in the company or holding directorship in the same company, to act as an alternate director for a director during his absence for a period of not less than 3 months from India. [Section 161(2)]
- Section 153, 161 164, 165,173, & 178 of Companies Act, 2013
- Regulation 30, 44 and 46 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015
- Board of Directors can only appoint Alternate Director if authorized in Articles of Association (AOA) to the Board or there is a resolution passed by the Company in a General Meeting.
- The Alternate Director has to vacate the office when the Original Director returns or when the tenure of the Original Director expires.
- The person proposed to be Alternate Director for an independent director should be qualified to be appointed as an Independent Director.
- The person proposed to be the Alternate Director should not come under any of the disqualifications mentioned under Section 164 and 165 of the Companies Act, 2013.
- The person proposed should not hold any office as Alternate Director of any other Original director in the Company.
- The person should also have a Directors Identification Number (DIN) and Digital Signature Certificate (DSC).
A new sub-clause in the declaration column of Form DIR-3 has been inserted vide Companies (Appointment and Qualification of Directors) Amendment Rules, 2022 (dated: 1st June, 2022) which states that the Director shall check the declaration as to whether he/she is required to obtain the security clearance from the Ministry of Home Affairs, Government of India before seeking appointment as director or the same has been obtained and is attached, as may be the case.
Following Procedure is to be followed
- Check the Article of Association of the Company
Refer the AOA, if not authorized by the AOA then it needs to be altered for the appointment of the Alternate Director. [Refer Procedure for Alteration of Articles]
- Obtain Written Consent and Declaration from the Proposed Alternate Director
The Proposed Alternate Director has to submit Form DIR-8 (Intimation by Director about his disqualification) to the Company. Such person shall also give a declaration that he fulfills the conditions for appointment as a Director.
- Obtain Form MBP-1 from the Proposed Alternate Director
Company shall obtain a disclosure of interest in Form MBP-1 from the person who is proposed to be appointed as an Alternate Director.
- Obtaining DIN and Digital Signature Certificate [Section 153]
- If the person does not have Digital Signature, he shall obtain Digital Signature from Certifying Authority in India.
- The person shall have a valid DIN allotted by the Ministry of Corporate Affairs. At present, application for allotment of DIN can be submitted to MCA only through the company where he/she is proposed to be appointed.
- The Application for DIN is required to be countersigned by a Director of the Company and a copy of resolution approving the proposal of appointment is also to be submitted by the person in Form DIR-3 with MCA with his ID Proof & Address proof, duly digitally signed by him and a director of the company in which the appointee is intended to be appointed as director.
- Documents for DIR-3 are as follows
- One Passport Size Photo in JPG/JPEG Format
- Board Resolution proposing his appointment as director in an existing company
- Specimen signature duly verified
- ID Proof- Driving License/Passport/Election Voter ID Card
- Residence Proof- Utility Bill (Electricity Bill/Telephone Bill)/Bank Statement/Mobile Bill
- Other Mandatory Attachments- Income Tax PAN (For Indian National), Passport (For Foreign Nationals)
- Other Attachments- Aadhaar Card.
- Meeting of Nomination and Remuneration Committee
Where a Company is required to constitute a Nomination and Remuneration Committee under section 178, shall receive a recommendation from the committee for the appointment of Alternate Director by the Board of Directors of the Company. [For convening meeting of Nomination and Remuneration Committee, Refer the Procedure for Conducting Nomination and Remuneration Committee Meeting].
- Convene a Meeting of Board of Directors [As per section 173 & Secretarial Standard-1 (SS-1)]
- Issue Notice of Board Meeting to all the Directors of Company at their addresses registered with the Company, at least 7 days before the date of Board Meeting. A shorter notice can be issued in case of urgent business.
- Attach Agenda, Notes to Agenda and Draft Resolution with the Notice.
- Hold a meeting of Board of Directors of the Company to discuss the agenda and pass requisite Board Resolution
- to appoint an Alternate Director
- to take note of the disclosure of Interest received from the Alternate Director
- to authorize Company Secretary or any Director to sign and file the relevant form with Registrar of Companies and to do such acts, deeds and things as may be necessary to give effect to the Board’s decision.
Listed Company shall submit the disclosure of such appointment to the Stock Exchange as soon as reasonably possible and but not later than the following:
- thirty minutes from the closure of the meeting of the board of directors in which the decision pertaining to the event or information has been taken
- twelve hours from the occurrence of the event or information, in case the event or information is emanating from within the listed entity
- twenty four hours from the occurrence of the event or information, in case the event or information is not emanating from within the listed entity, from the end of the Board Meeting and update the same on the website of the company within 2 working days. [Regulation 30 & 46(3) of the SEBI (LODR) Regulations, 2015]
- Prepare and Circulate Draft Minutes within 15 days from the conclusion of the Board Meeting, by Hand/Speed Post/Registered Post/Courier/E-mail to all the Directors for their comments. [Refer the Procedure for Preparation, Signing and Compilation of Minutes of Board Meeting]
- Filing of Return of Appointment of Director with the ROC
After the Board meeting, a Return of Appointment of Directorship (Form DIR-12) is required to be filed with Registrar within 30 days of appointment with copy of Board Resolution along with Consent and Declaration. In case of Companies other than OPC and Small Company, the return is also to be certified by a Company Secretary/Chartered Accountant/Cost Accountant. Following documents will be required as an attachment with Form DIR-12
- Certified True Copy of the Board Resolution passed.
- DIR-8 Declaration by Director
- Letter of Appointment.
- Making Necessary entries in Register of Directors
Company should make necessary entries in the Register of Director and Key Managerial Personals and registers of contract and arrangements in which Directors are interested in Form MBP-4.
- File Necessary Amendment Application under following Acts
- Goods and Services Act
- Shops & Establishment Act
- Factories Act
- Foreign Exchange Management Act
- Inter-State Migrant workmen Act
- Private Security Agency Act
- Other Labour Laws
- Industry Specific Laws
The Ministry of Corporate Affairs had notified Companies (Appointment and Qualification of Directors) Amendment Rules, 2023 (dated: 20th January, 2023) by which in form DIR-12:
- attachment DIR-2 is not require to be separately attached to the form rather to be certified in the form DIR-12 itself by the director
- in attachment DIR-8. Now, the Director shall be to inform about personal disqualifications u/s 164(1) alongwith company related disqualifications u/s 164(2) and Company shall file Form DIR-9 with RoC within 30 days of receipt of DIR-8.
- purpose of DIR-12 shall be selected as appointment due to disqualification of all the existing directors or appointment by liquidator/IRP/RP added in addition to the existing purposes as the case may be and SRN of INC-28 to be mentioned and order of NCLT to be attached, if applicable
- Form DIR-3 Linked with Digilocker and in particulars of residential address of applicant jurisdiction of police station to be mentioned.