Dir12 for appointment of secretary in unlisted public ltd co

Every company shall file webform DIR-12 detailing particulars of the Directors and Key Managerial Personnel ('KMP') of the company with the Registrar, within 30 days from the date of appointment, cessation and changes taken place in their designations.

The DIR 12 allows for filing with different event dates (e.g., appointment, cessation, change in designation) within a 30-day timeframe from the filing date. If any event date falls outside this 30-day window, a separate form must be submitted for each such event date.

An unlisted public limited company is seeking to require an employee on probation to initiate the filing of DIR-12, which is the form used to notify the Registrar of Companies (ROC) of changes in the directorate. The employee is concerned about potential repercussions if they leave or are not confirmed after the probation period.

Legal Provisions

1. Companies Act, 2013:

   • Section 152: This section deals with the appointment of directors. A director must be appointed by the shareholders or the board of directors.
   • Rule 8, Companies (Appointment and Qualification of Directors) Rules, 2014: This rule mandates that a person who is being appointed as a director must consent to their appointment using Form DIR-2, and this consent must be filed with Form DIR-12.

2. Probation Period:

   • During the probation period, the terms of employment are typically evaluated, and either party can terminate the contract with minimal notice. The probation period is governed by the employment agreement and the company's HR policies.

Analysis and Recommendations

1. Forcing the Filing of DIR-12 During Probation:

   • The company can propose the filing of DIR-12, but it cannot legally force an employee to become a director without their consent. The filing of DIR-12 requires the director's consent in Form DIR-2. If the employee does not consent, the company cannot proceed with the filing.

2. Employee's Consent:

   • If the employee consents and becomes a director, they assume additional responsibilities and liabilities under the Companies Act, 2013. It is crucial for the employee to understand these implications fully.

3. Repercussions of Leaving or Non-Confirmation:

   • If the employee leaves or is not confirmed after the probation period, the company should follow due process to file DIR-12 for the cessation of directorship. The employee must ensure they receive formal communication regarding their release from directorship to avoid future liabilities.
   • The management cannot legally withhold the employee’s release documents or final settlement without risking a breach of employment laws and contractual terms.

4. Legal Safeguards for Employees:

   • Employment Agreement: Review the terms regarding probation, termination, and director appointments. The agreement should outline the process and notice period for termination.
   • Labour Laws: Under various labour laws, any undue pressure or withholding of rightful dues can be challenged in labour courts or industrial tribunals.

Relevant Judgments

1. Vivek Kumar Gupta vs. Blue Star Ltd. (2019):

   • The court held that companies must follow proper legal and procedural norms in employee termination and cannot withhold dues or clearance unjustly.

2. Sundaram Finance Ltd. vs. Abdul Samad (2018):

   • Emphasized that companies must adhere to the principles of natural justice and fair play in all employment matters.

Conclusion

While an unlisted public limited company can request an employee to file DIR-12 to become a director, it cannot force them without their consent. Employees should fully understand the legal responsibilities before consenting to directorship. If an employee leaves or is not confirmed after the probation period, the company must follow due process to relieve them from their directorship and cannot withhold their release documents or dues unfairly. Employees have legal recourse if their rights are violated. Reviewing the employment agreement and consulting a legal expert is advisable to ensure protection against any undue pressure or wrongful actions by the company.

Very well explained and advised by experts, nothing more to add.