General Circular No.16/2001
File No.1/15/2000-CL.V
Government of India
Ministry of Law, Justice & Company Affairs
Department of Company Affairs
5th floor, A-wing, Shatri Bhawan
Dr.R.P.Road, New Delhi-110001
Dated: 24th July, 2001
To
All Regional Directors
All Registrar of Companies/
All Official Liquidators
Subject: The Companies (passing of the resolution by postal ballot) Rules, 2001
Clarification reg.
The section 192A (1) of the Companies Act, 1956 was inserted by the
Companies (Amendment) Act, 2000 which came into force with effect from 13th
December, 2000. The provisions of the section give all listed companies an
option of passing shareholder’s resolution through postal ballot. Further, they
are necessarily required to get certain businesses as notified by the Central
Government vide notification number GSR.337(E) dated 10th May, 2001 to be passed
through postal ballot.
The Companies (passing of the resolution by postal ballot) Rules, 2001 which
were notified on 10th May, 2001 mention transactions to be transacted through
postal ballot. Pursuant to section 2 of the Companies (Amendment) Act, 2000 a
notification number S.O.523(E) dated 15th June, 2001 was published indicating
the date from which the provisions of section 192A shall come into force i.e.
15th June, 2001.
The Department has received a number of queries from the
professionals, Chamber of Commerce & Industry, corporate sectors etc. on the
above subject. The points raised have been carefully examined and Department’s
views thereon are indicated below: -
1. The Companies (passing of the resolution by postal ballot)
Rules, 2001 read with section 192A shall apply to notices calling meetings of
the shareholders approved by the Board of Directors after 15th June 2001.
2. According to the provisions of section 192A it is not
mandatory for the company to release an advertisement giving the date of
completion of despatch of postal ballots. However, as a measure of Good
Corporate Governance companies in their own interest may release an
advertisement for publishing the date of completion of despatch of postal
ballots.
3. A specimen postal ballot form and items to be included in
the calendar of events for conducting voting through postal ballot are enclosed
for the use and convenience of the companies. The concerned companies must
ensure that the postal ballots are serially numbered and have distinguishing
water marks in order to avoid printing of any duplicate ballot papers.
4. The companies are required to specify the last date by which
the postal ballot must be received by the company keeping in view the provisions
contained in Rule 5(f) of the Companies (passing of the resolution by postal
ballot) Rules, 2001 and the instructions at serial number 5 of the specimen
postal ballot form.
5. It is clarified that voting right on postal ballot
shall be in proportion to the
shareholders share of the paid up equity share capital of the
company.
6. The company secretary along with one of the functional directors
should be made responsible for the entire postal ballot process by means of an
appropriate board resolution. The resolution should be passed in the Board
Meeting in which notice required to be sent to the shareholder under section
192A (2) is approved by the Board. A copy of the board resolution should be
despatched alongwith item to be included in the calendar of events within one
week of passing of the Board resolution to the concerned Registrar of Companies
for information.
7. A query has been raised whether Companies (passing of
resolution by postal ballot) Rules, 2001 is applicable only in respect of list
of businesses as notified under rule 4 of the said rule. It is hereby clarified
that the Central Government may at any time include or delete the items to be
transacted through postal ballot, therefore, the procedure as specified in the
rules has to be followed for any business to be transacted through postal
ballot.
8. A query has also been raised whether passing of all
resolution in respect of ordinary and special business other than those covered
under rule 4 of the said Rules can be treated as sufficient compliance of
provisions of section 166 of the Companies Act, 1956 and also whether the
company is required to convene a general meeting in case the resolutions are to
be passed through postal ballot. While the companies are required to hold annual
general meetings which is a mandatory requirement under section 166 of the
Companies Act, 1956 it is hereby clarified that any listed company which intends
to transact such businesses as notified under rule 4 of the said Rules has to do
so only in the general meeting along with other ordinary businesses and special
business, if any. The companies are required to send notice only in respect of
item to be transacted through postal ballot well in advance so that the reply is
received from the shareholders before the date of the general meeting. This will
enable the scrutinizer to be in a position to make an entry in the appropriate
register maintained for the purpose and make it available to the Chairman of the
general meeting who shall declare the results in the general meeting. The date
of passing of the resolution will be the date of the General Meeting.
9. The Department is separately taking following actions for
amending the
Companies (passing of the resolution by postal ballot) Rules, 2001: -
i) Insert new Rule 2A as under :
“The notices may be issued by the Companies under certificate of posting and an
advertisement shall be published in a leading English Newspaper and in one
vernacular Newspaper circulating in the State in which the registered office of
the company is situated about having despatched the ballot papers;
ii) In rule 4 the word ‘may’ is proposed to be substituted by
the word ‘shall’;
iii) In rule 4 (b) the words ‘deletion or’ is proposed to be
omitted;
iv) In rule 4 (h) the word `proviso to’ to be inserted after
the word ‘under’;
v) Rule 4 (i) is proposed to be deleted;
vi) Rule 5 (c) is proposed to be substituted by :- ‘scrutinizer
will submit his report as soon as possible after the last date of receipt of
postal ballot’;
vii) Rule 5 (f) is proposed to be substituted by :- ‘the consent
or otherwise received after 30 days from the date of issue of notice will be
strictly treated as if reply from the member has not been received’ ”.
(Thakur Sharan)
Under Secretary to the Govt. of India
XYZ LIMITED
Registered Office …………………………………………………………………………..
Postal Ballot Form
1. Name(s) of Shareholder(s)
______________________________
( in block letters)
______________________________
(including joint holders, if any) ______________________________
2. Registered address of the sole/first
named shareholder
3. Registered folio No./DP ID No./Client
ID No.*
(* Applicable to investors holding shares
in dematerialized form)
4. Number of shares held
5. I/We hereby exercise my/our vote in respect of the
ordinary/special resolution to be passed through postal ballot for the business
stated in the notice of the Company by sending my/our assent or dissent to the
said resolution by placing the tick ( _/ ) mark at the appropriate box below.
Item No.No. of shares
I/We assent to the resolution
I/We dissent to the resolution
Place:
Date:
________________________
(Signature of the shareholder)
Instructions
1. A member desiring to exercise vote by postal ballot may
complete this Postal Ballot Form and send it to the company in the attached
self-addressed envelope. Postage will be borne and paid by the company. However,
envelopes containing postal ballots, if sent by courier at the expenses of the
registered shareholder will also be accepted.
2. The self-addressed envelope bears the address of the
scrutineer appointed by the Board of Directors of the company.
3. This form should be completed and signed by the shareholder.
In case of joint holding, this form should be completed and signed (as per the
specimen signature registered with the company) by the first named shareholder
and in his absence, by the next named shareholder.
4. Unsigned Postal Ballot Form will be rejected.
5. Duly completed Postal Ballot Form should reach the company
not later than the close of working hours on ----------- (day)-------------
(date). Postal Ballot Form received after this date will be strictly treated as
if the reply from the member has not been received.
6. Voting rights shall be reckoned on the paid up value of
shares registered in the name of the shareholders on the date of despatch of the
notice.
Items to be included in the calendar of events
1. Date of Despatch of notice of Meeting in which the business as
notified by the Central Government will also be transacted through Postal
Ballot.
.
2. Date of completion of despatch of notice along with Postal Ballot.
3. Date of appointment of scrutinizer.
4. Date on which consent given by the scrutinizer to act as
scrutinizer.
5. Last date for receiving Postal Ballot papers by scrutinizer.
6. Date of signing of the minutes book by the Chairman in which the
results ballot is
recorded.
7. Date of returning the Ballot papers, register required to be
maintained by the scrutinizer under rule 5(e) of the Companies (passing of the
resolutions by postal ballot) Rules, 2001 and other related papers to the
Chairman by the Scrutinizer.
8. Date of Board resolution authorising one of the functional directors
and the secretary to be responsible for the entire poll process.
9. Date of handling over the ballot papers to the designated authority.
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