Section 383A. - Certain companies to have secretaries. - Companies Act, 1956

Certain companies to have secretaries. [1] [383A. (1) Every company [2] [having such paid-up share capital as may be prescribed] shall have a whole-time secretary, and where the Board of directors of any such company comprises only two directors, neither of them shall be the secretary of the company: [3] [Provided that every company not required to employ a whole-time secretary under sub-section (1) and having a paid-up share capital of ten lakh rupees or more shall file with the Registrar a certificate from a secretary in whole-time practice in such form and within such time and subject to such conditions as may be prescribed, as to whether the company has complied with all provisions of this Act and a copy of such certificate shall be attached with Board's report referred to in section 217.] [4] [(1A) If a company fails to comply with the provisions of sub-section (1), the company and every officer of the company who is in default, shall be punishable with fine which may extend to [5] [five hundred rupees] for every day during which the default continues: Provided that in any proceedings against a person in respect of an offence under this sub-section, it shall be a defence to prove that all reasonable efforts to comply with the provisions of sub-section (1) were taken or that the financial position of the company was such that it was beyond its capacity to engage a whole-time secretary.] (2) Where, at the commencement of the Companies (Amendment) Act, 1974 (41 of 1974), ____ (a) any firm or body corporate is holding office, as the secretary of a company, such firm or body corporate shall, within six months from such commencement, vacate office as secretary of such company; (b) any individual is holding office as the secretary of more than one company having a paid-up share capital of rupees twenty-five lakhs or more, he shall, within a period of six months from such commencement, exercise his option as to the company of which he intends to continue as the secretary and shall, on and from such date, vacate office as secretary in relation to all other companies]. -------------------------------------- Notes:- [1] Inserted by the Companies (Amendment) Act, 1974, Act 41 of 1974, section 30, w.e.f. 1-2-1975. [2] Substituted by the Companies (Amendment) Act, 1988, section 52, w.e.f. 1-12-1988 for the words "having a paid-up share capital of rupees twenty-five lakhs or more". [ Rule 2 of Companies (Appointment Qualification of Secretary) Rules, 1988, as amended with effect from 15-3-2009, reads as under: 2. Appointment, etc., of whole-time secretary. ___ (1) Every company having a paid-up share capital of not lees then rupees five crores shall have a whole-time secretary. (2) No person shall be appointed as whole-time secretary under sub-rule (1) unless he is a No number of the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (56 of 1980). (3) A company having a paid-up share capital of less then rupees two crores may appoint any individual as its whole-time secretary to perform the duties of a secretary under the Companies Act, 1956, and may any other ministerial or administrative duties Provided that no individual shall be eligible to be so appointed unless he possesses one or more of the qualification specified in sub-rule (4). (3A) A Company having a paid up share capital of two crore rupees or more but lees then five crore rupees may appoint any individual possesses the qualification of membership of the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (56 of 1980), as a whole-time secretary to perform the duties of a secretary under the Company Act, 1956 : Provided that where a company has appointed under sub-rule (3) or his sub-rule, a whole-time company secretary, possessing the qualification of membership of the Institute of Company Secretaries of India, such a company is not required to obtain a certificate from a secretary in whole-time practice under rule 3 of the Companies (Compliance Certificate) Rules, 2001. (4) No individual shall be appointed as secretary pursuant to sub-rule (3) unless he possesses any one or more of the following qualification, namely:- (i) membership of the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1986 (56 of 1980); (ii) pass in the Intermediate examination conducted either by the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (56 of 1980), or by the earlier Institute of Company Secretaries of India incorporated on 4 th October, 1968, under the Companies Act, 1956 (1 of 1956), and licensed under section 25 of that Act. (iii) post-graduate degree in commerce or corporate secretaryship granted by any university in India; (iv) degree in law granted by the any university; (v) membership of the Institute of Chartered Accountants of India constituted under the Chartered Accountants Act, 1949 (38 of 1949); (vi) membership of the Institute of Cost and Works Accountants of India constituted under the Cost and Works Accountants Act, 1959 (23 of 1959); (vii) post-graduate degree or diploma in management science, granted by any university, or the Institute of management, Ahmedabad, Calcutta, Bangalore, or Lucknow; (viii) post-graduate diploma in company secretaryship granted by the Institute of Commercial Practice under the Delhi Administration or Diploma in Corporate Laws and Management granted by the Indian Law Institute, New Delhi; (ix) post-graduate diploma in company law and secretarial practice granted by the University of Udaipur; or (x) membership of the Association of Secretaries and Managers, Calcutta, registered under the West Bengal Registration of Societies Act, 1961 (26 of 1961); Provided that where the paid-up share capital of such company is increased to rupees five crore or more, the company shall, within a period of one year from the date of such increase, comply with provisions of sub-rule (1) and (2) of rule 2. Explanation : In this rule, University has the meaning assigned to it in the university Grants Commission Act, 1956 (3 of 1956), and includes any university outside India which recognised by the Union Public Service Commission for the purpose of recruitment to public service and posts in connection with the affairs of the Union or of any State. ]. [3] Inserted by the Companies (Amendment) Act, 2000, w.e.f. 13-12-2000. [4] Inserted by the Companies (Amendment) Act, 1988, section 52, w.e.f. 1-12-1988. [5] Substituted for "fifty rupees" by the Companies (Amendment) Act, 2000, w.e.f. 13-12-2000.