Notification No. 531:Legal 710/1(M)/1 dated 23rd July 2010 issued by the Institute of Company Secretaries of India
Whereas the draft regulations further to amend the Company Secretaries Regulations, 1982 were published as required by sub-section (3) of section 39 of the Company Secretaries Act, 1980 (56 of 1980) at pages 1 to 27 in the Gazette of India Extraordinary, Part III, Section 4 dated the 30th October, 2008 under the notification of the Institute of Company Secretaries of India No. 531:legal:710/1(M)/1 dated 30th October, 2008 for inviting objections and suggestions from all persons likely to be affected thereby before the expiry of forty-five days of the date on which the copies of the said notification as published in the Gazette of India were made available to the public ;
And whereas objections and suggestions were invited before the expiry of a period of forty-five days from the date on which the copies of the said Gazette were made available to the public ;
And whereas the said Gazette was made available to the public on 4th November, 2008 ;
And whereas objections and suggestions received from the public have been considered by the Council ;
Now, therefore, in exercise of the powers conferred by sub-section (1) of section 39 of the Company Secretaries Act, 1980 (56 of 1980), the Council, with the approval of the Central Government, hereby makes the following regulations further to amend the Company Secretaries Regulations, 1982, namely :
1. (1) These regulations may be called the Company Secretaries (Amendment) Regulations, 2010.
(2) These regulations shall come into force on the date of their publication in the Gazette of India.
2. In the Company Secretaries Regulations, 1982,
(i) for regulation 6, the following regulation shall be substituted, namely :
6. Fees. (1) Every person other than a person referred to in sub-section (2) of section 4 of the Act applying for Associate membership of the Institute shall pay an entrance fee as may be determined by the Council under sub-section (3) of section 4 of the Act.
(2) An Associate applying for admission as a Fellow [other than a person referred to in sub-section (2) of section 4] shall pay an entrance fee as may be determined by the Council under sub-section (3) of section 5 of the Act.
(3) The annual membership fee shall become due on the first day of April in each year.
(4) Every member shall pay such annual membership fee as may be determined by the Council under sub-section (4) of section 19 of the Act :
Provided that in respect of any year in which an Associate applies for admission as a Fellow he shall pay to the Institute the difference between the annual membership fee, if any, paid by him as an Associate for that year and the fee payable by him as a Fellow :
Provided further that only half the amount of the annual membership fee shall be payable for the first year by a person admitted on or after the first day of October of that year :
Provided also that a member who is of the age of sixty years or above and is not in any gainful employment or in practice shall pay half of the annual membership fee :
Provided also that a member who is of the age of seventy years or above and is not in any gainful employment or in practice shall pay one fourth of the annual membership fee.
(5) (a) The annual fee for certificate of practice shall become due on the first day of April in each year.
(b) Every member in practice shall pay such annual certificate of practice fee, as may be determined by the Council under sub-section (2) of section 6 of the Act :
Provided that only half the amount of the annual certificate fee shall be payable for the first year by a member for obtaining certificate of practice on or after the first day of October of that year. ;
(ii) for regulation 11, the following regulation shall be substituted, namely :
11. Cancellation of certificate of practice. (1) A certificate of practice issued under sub-section (1) of section 6 of the Act shall be liable for cancellation, if
(a) the name of the holder of the certificate is removed from the Register under sub-sections (1) and (2) of section 20 of the Act ; or
(b) the Council is satisfied, after giving an opportunity of being heard to the person concerned, that such certificate was issued on the basis of incorrect, misleading or false information provided by the applicant, or by mistake or inadvertence on the part of the Council ; or
(c) a member has ceased to practise ; or
(d) a member has not paid annual fee for certificate of practice till 30th day of September of the relevant year.
(2) The cancellation of a certificate shall be effective,
(a) in a case falling under clause (a) of sub-regulation (1), on the date on which and during the period for which the name of the holder of the certificate was removed from the register of members ;
(b) in a case falling under clause (d) of sub-regulation (1), from the 15th day following the date of issue of notice by the Secretary on or after the 1st day of October ; and
(c) in any other case from such date and for such period, as may be decided by the Council.
(3) When a certificate is cancelled, the date from which and the period for which the certificate shall stand cancelled shall be communicated in writing by registered post to the member concerned at the address entered in the register and may also be published in the Journal.
(4) Where a certificate of practice is cancelled, the holder of such certificate shall surrender the certificate to the Secretary within 15 days from the date of receipt of notice of such cancellation or from the date of the notification thereof published in the Journal, whichever is later, under sub-regulation (3). ;
(iii) for regulation 13, the following regulation shall be substituted, namely :
13. Restoration to membership. (1) The Council may, on an application in the appropriate form, received in this behalf from a member whose name stood removed from the register of members of the dissolved company or under clause (c) of sub-section (1) of section 20 of the Act, for non-payment of fees may restore his name, if he is otherwise eligible to such membership, on his paying the arrears of annual membership fee, entrance fee and additional fee as may be determined by the Council under sub-section (3) of section 20 of the Act.
(2) The restoration under sub-regulation (1) shall be with effect from the date on which the application and fee are received :
Provided that where such an application for restoration, complete in all respects, is received within the same year in which the name was removed, the Council may restore the name on his paying the annual membership fee due for that year, entrance fee and the additional fee for restoration, with effect from the date on which it was removed from the Register :
Provided further that the restoration of a member™s name which was removed under the orders of the Board of Discipline or the Disciplinary Committee or the Appellate Authority or the High Court shall be effected only in accordance with such orders.
(3) The restoration of a member™s name to the register shall be communicated in writing to him and may also be published in the Journal. ;
(iv) for regulation 14, the following regulation shall be substituted,
namely :
14. Restoration of certificate of practice. (1) The Council may, on an application made in appropriate form and on payment of such fee, as may be determined by the Council under sub-section (3) of section 20 of the Act, restore the certificate of practice with effect from the date on which it was cancelled, to a member whose certificate has been cancelled due to non-payment of the annual fee for the certificate of practice and whose application, complete in all respects, together with the fee, is received by the Secretary before the expiry of the relevant year.
(2) On acceptance of the application for restoration, the restoration of certificate of practice shall be communicated in writing to the person concerned and may also be published in the Journal. ;
(v) in regulations 15, 16, 17, 18 and 19, after the headings, the following words in brackets shall be inserted, namely :
(Applicable to a complaint or information pending before the Council or any inquiry initiated by the Disciplinary Committee or any reference or appeal made to a High Court prior to 17th November, 2006.) ;
(vi) after regulation 15, the following regulation shall be inserted, namely :
15A. Fee and procedure for investigation of a complaint or information to be followed by the Director (Discipline), Disciplinary Directorate and procedure for inquiry by the Disciplinary Committee. [Applicable to a complaint or information received on or after 17th November, 2006]. (1) Every complaint other than a complaint filed by or on behalf of the Central Government or any State Government, or any statutory authority shall be accompanied by a fee of rupees two thousand five hundred.
(2) Each such complaint or information shall be dealt with in accordance with the procedure specified in the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007. ;
(vii) regulations 56 to 87W shall be omitted ;
(viii) for regulation 98, the following regulation shall be substituted, namely :
98. Constitution of Standing and other Committees. ” (1) In pursuance of the provisions contained in sub-section (1) of section 17, the Council shall constitute three Standing Committees, namely :
(a) An Executive Committee,
(b) A Finance Committee, and
(c) An Examination Committee.
(2) The Standing Committees shall at all times function under the control, direction and supervision of the Council.
(3) The Council may constitute other Committees including a Training and Educational Facilities Committee and Professional Research and Publications Committee in accordance with the provisions of sub-section (2) and sub-section (6) of section 17 of the Act.
(4) The Secretary of the Institute shall be the Secretary of every Standing Committee.
(5) The Secretary shall maintain a record of all the business transacted by a Committee either by circulation of papers or at meeting of the Committee. ;
(ix) for regulation 99, the following regulation shall be substituted, namely :
99. Executive Committee. (1) The Executive Committee shall perform the following functions, namely :
(a) enrolment of members with or without certificate of practice, admission of fellows, removal and restoration of names of members, issue and cancellation of certificate of practice, issue of certificates of membership, prosecution of members on the findings of the Council, granting exemption to company secretary in practice or firms of such company secretaries from the operation of sub-section (1) of section 37 of the Act and publication of the list of members ;
(b) grant of permission to a company secretary in practice to engage in any business or occupation other than the profession of company secretary in accordance with, and subject to, the restrictions specified in this behalf by the Council ;
(c) condone the delay in supplying requisite information under regulation 165 ;
(d) maintenance of the register of members and all other statutory registers which are prescribed by the Act or these regulations ;
(e) control and custody of the property, assets and funds of the Institute ;
(f) maintenance of office of the Council and for this purpose the Executive Committee may employ, suspend, discharge or re-employ the necessary staff on such terms and conditions as it may deem fit ;
(g) according approval, on recommendation of Finance Committee, to the likely expenditure upto twenty per cent in excess of the estimates previously sanctioned by the Council in the respective heads of the annual budget :
Provided that where the Executive Committee does not agree with the recommendation of the Finance Committee, the matter shall be decided by the Council.
(h) any other functions which may be entrusted to it by the Council from time-to-time.
(2) The Council shall have the power to review any decision taken by the Executive Committee in the performance of the functions assigned to it. ;
(x) in regulation 101, after the heading the following words in brackets shall be inserted, namely :
(Applicable to the complaint or information pending before the Council or any inquiry initiated by the Disciplinary Committee or any reference or appeal made to a High Court prior to 17th November, 2006). ;
(xi) after regulation 101, the following regulation shall be inserted,
namely :
101A. Finance Committee. (1) The Finance Committee shall control, implement and supervise the activities related with and incidental to the following areas, namely :
(a) maintenance of true and correct accounts of all the receipts and payments on behalf of the Council and the matters in respect of which such receipts and payments take place and of all the property, securities, debts, funds and liabilities of the Institute ;
(b) formulation of annual budget of the Institute and presenting it to the Council for approval, after obtaining the recommendation of the Executive Committee ;
(c) control of funds of the Institute ;
(d) investment of the funds of the Institute in securities and to vary such investments from time-to-time subject to the guidelines approved by the Council ;
(e) disbursements from the funds of the Institute for expenditure, both revenue and capital, based on the estimates previously sanctioned by the Council ;
Provided that expenditure in excess of the estimates previously sanctioned by the Council may be incurred with the recommendation of the Executive Committee, wherever considered expedient, but such excess expenditure shall be brought to the notice of the Council at its next meeting ;
(f) making recommendation to the Executive Committee for sanction of likely expenditure upto twenty per cent in excess of the estimates previously sanctioned by the Council for the respective heads of the annual budget ;
(g) overseeing the Institute™s financial reporting process and the disclosure of its financial information ;
(h) reviewing with the Secretariat, Statutory and Internal Auditors, the adequacy of internal control systems ;
(i) reviewing the adequacy of internal audit function, including the structure of the internal audit ;
(j) reviewing the internal reports and any discussion with the internal auditor and significant findings and follow up thereon ;
(k) reviewing the findings of any internal investigations by the internal auditors into matters where there is suspected fraud or irregularity or a failure of internal control systems of a material nature and reporting the matter to the Council ;
(l) discussing with Statutory Auditors of the nature and scope of audit and hold post-audit discussions to ascertain any area of concern.
(2) The Council shall have the power to review any decision taken by the Finance Committee in the performance of the functions delegated to it. ;
(xii) regulation 104 shall be omitted ;
(xiii) for regulation 114, the following regulation shall be substituted, namely :
114. Conduct of elections. (1) Except to the extent provided in this Chapter, the elections to the Regional Councils shall be held by the Council and the Company Secretaries (Election to the Council) Rules, 2006 shall apply to elections to the Regional Councils mutatis mutandis.
(2) Notwithstanding anything contained in Schedule 8 to the Company Secretaries (Election to the Council) Rules, 2006 as applied by sub-regulation (1) to elections to the Regional Council, the Returning Officer
(a) shall not exclude from the poll a candidate lowest on the poll at any stage in the counting of votes,
(i) if he is a candidate from a State or Union Territory which has one or more reserved seats under sub-regulation (1) of regulation 115 ; and
(ii) he is either the sole continuing candidate from that State or the Union Territory or the number of continuing candidates including him from that State or the Union Territory is equal to or less than the number of seats reserved for that State or the Union territory ;
(b) shall exclude the next lowest candidate on the poll and if in the case of that candidate also the provisions of clause (a) are applicable such next candidate lowest on the poll in whose case the said provisions of clause (a) are not applicable ;
(c) shall declare candidate or candidates not so excluded elected the poll either under clause (a) or clause (b) as elected and shall proceed with the counting for filling the seats remaining to be filled.
(3) Where there is no candidate standing for election from any State or Union Territory which has a reserved seat under sub-regulation (1) of regulation 115 or the number of candidates for election to a Regional Council is less than the number of members to be elected, the vacant seat or seats may or may not be filled up at the discretion of the Council and in case the Council decides that the vacant seat or seats be filled up, the same may be filled up by co-option by the Regional Council from amongst the members entitled to vote in and stand for election to the Regional Council in consultation with the previous approval of the Council and the members so co-opted shall hold office for the duration of office of that Regional Council.
(4) Where any dispute arises regarding any election to a Regional Council, the matter may be referred by the candidate concerned within thirty days from the date of the declaration of the result of the election, to the President and the decision shall be final. ;
(xiv) for regulation 115, the following regulation shall be substituted, namely : –
115. Representation on the Regional Council. (1) Each Regional Council shall have not less than six and not more than twelve elected members provided that there shall be at least one elected member from each such State or Union Territory as is having, on the date of the issue of the notice referred to in sub-regulation (2), such minimum number of members as may be decided by the Council for each election.
(2) The Council shall publish in the Gazette of India a notice stating the number of persons to be elected to each Regional Council and calling for nominations of candidates for election by a specified date which shall not be less than twenty-one days from the date of the publication of the said notice in the Gazette of India. Such notice shall also be displayed for information of members at the offices of each Regional Council.
(3) The Regional Council, as constituted under sub-regulations (1) and (2) of regulation 111, may, at its first meeting, co-opt not more than two persons to represent the interests of commerce, trade and industry and the Central or State Governments with the [previous] approval of the Council provided that such co-opted persons shall have no right to vote at the meetings of the Regional Council. ;
(xv) regulation 116 shall be omitted ;
(xvi) in regulation 117, for sub-regulation (2), the following sub-regulation shall be substituted, namely :
(2) An elected member of a Regional Council who has been found guilty of any professional or other misconduct and awarded penalty of fine or does not attend three consecutive meetings of the Regional Council or Committee thereof, unless he applies for leave of absence in writing and it is granted for each meeting, shall be deemed to have vacated office from the date of the order or at the conclusion of the third meeting unless he applies for leave of absence in writing and it is granted for each meeting. ;
(xvii) for regulation 118, the following regulation shall be substituted, namely :
118. Duration of Office. (1) The duration of office of the Regional Council shall ordinarily be four years from the date of its constitution, which shall be specified by the Council by a notification in this behalf in the Journal.
(2) On the expiry of the duration of a Regional Council, a new Regional Council shall be constituted in the manner provided in these regulations. ;
(xviii) for regulation 150, the following regulation shall be substituted, namely :
150. Maintenance of accounts. (1) It shall be the duty of the Finance Committee to maintain or cause to be maintained proper books of account with respect to
(a) all sums of money received and expended by the Institute and the matters in respect of which the receipt and expenditure takes place ;
(b) all sales and purchases of goods ;
(c) all the assets and liabilities of the Institute ;
(d) any other items specified in this regard by the Council.
(2) The annual accounts of the Council shall be prepared for every year. Such annual accounts shall comprise of the balance sheet of the Institute, income and expenditure account of the Institute comprising the surplus or deficit of the Institute for that year, and cash flow statement for that year.
(3) While preparing the annual accounts, the Finance Committee shall take into consideration the annual accounts of the respective Regional Councils and Chapters and consolidate the same with the annual accounts of the Institute. ;
(xix) for regulation 152, the following regulation shall be substituted, namely :
152. Appointment of auditor and his retirement. (1) The auditor shall be appointed by the Council at the annual meeting of the Council on the recommendation of the Executive Committee as provided in sub-section (5) of section 18 of the Act.
(2) The auditor shall retire at the conclusion of the annual meeting of the Council next after the meeting at which he was appointed, but shall be eligible for re-appointment. ;
(xx) for regulation 154, the following regulation shall be substituted namely :
154. Auditor™s vacancy in office. In the event of any vacancy occurring in the office of auditor before the expiry of his term of office in the normal course or in the event of a vacancy not being filled up at the annual meeting, the said vacancy may be filled by the Executive Committee and the auditor so appointed by the Executive Committee shall hold office until the conclusion of the next annual meeting but shall be eligible for re-appointment :
Provided that, during the period of such vacancy the existing auditor may, continue to act. ;
(xxi) after regulation 154, the following regulation shall be substituted, namely :
154A. Comparison of actual income and expenditure with budget estimates. (1) The Council shall approve the budget prior to the commencement of each financial year indicating expenditure proposed to be incurred and anticipated revenues for the forthcoming year.
(2) The budget refers to in sub-regulation (1) apart from the other things separately record capital items and the revenue items.
(3) The budget for the capital items shall provide proposed expenditure apart from the other items on land, building, capital equipments, books and library.
(4) The budget for revenue items shall provide anticipated income and proposed expenditure for the forthcoming year in relation to, apart from the other items, in respect of distance education, examination, services to members and salary and establishment.
(5) The budget so approved may be revised during the year, to incorporate the expected changes.
(6) The auditors of the Council shall also compare the actual income and expenditure with the budget estimates approved by the Council and submit a report to the Council on the material departures. ;
(xxii) for regulation 155, the following regulation shall be substituted, namely :
155 Approval, circulation and publication of audited accounts and Council report. (1) The Council shall as soon as may be practicable at the end of each year circulate the audited accounts to its members at least 15 days in advance and consider and approve these accounts in a special meeting convened for the purpose in pursuance of sub-section (5A) of section 18 of the Act.
(2) The Council shall cause to be published in the Gazette of India a copy of the audited accounts and the report of the Council for that year duly approved by the Council and shall forward a copy of the said accounts and report to the Central Government and to all members of the Institute on or before 30th day of September of the year next following in pursuance of sub-section (5B) of section 18 of the Act. ;
(xxiii) for regulation 161, the following regulation shall be substituted, namely :
161. Publication of list of members. (1) The list of members of the Institute as on the 1st day of April each year published in print or electronic form, under sub-section (3) of section 19, shall be sent to any member, on his request and on his making payment of such amount as may be determined by the Council which shall not exceed rupees three thousand.
(2) In publishing the list of members as stated in sub-regulation (1), the Council may distinguish, in such manner as it may think fit, between the Associates and Fellows in practice and between the Associates and Fellows not in practice and provide such other information pertaining to each member in the list of members as it considers necessary and useful :
Provided that a copy of the list of members or the Compact Disc or any other electronic form, as the case may be sent free of charge to Registrars of Companies, Regional Directors under the Ministry of Corporate Affairs and such other bodies as the Council may specify from time-to-time :
Provided further copies of the list in print or Compact Disc or in other electronic form, as the case may be, shall also be made available to others on payment of the amount as determined by the Council under sub-regulation (1), in addition to the postal charges, if any. ;
(xxiv) after regulation 168, the following regulation shall be inserted, namely :
168A. Other professional bodies. (1) For the purposes of clauses (2), (3) and (5) of Part I of the First Schedule to the Act, a person has to be member of any of the following, namely
(a) the Institute of Chartered Accountants of India established under the Chartered Accountants Act, 1949 (No.38 of 1949) ;
(b) the Institute of Cost and Works Accountants of India established under the Cost and Works Accountants Act, 1959 (No.23 of 1959) ;
(c) the Bar Council of India established under the Advocates Act, 1961 (No.25 of 1961) ;
(d) the Indian Institute of Architects established under the Architects Act, 1972 (No.20 of 1972) ;
(e) the Institute of Actuaries of India established under the Actuaries Act, 2006 (No.35 of 2006) ;
(f) the membership of the professional bodies or institutions whose qualifications relating to Company Secretaryship are recognised by the Council under sub-section (2) of section 38 of the Act.
(2) For the purposes of clauses (2), (3) and (5) of Part I of the First Schedule to the Act the following shall be the persons qualified in India, namely :
(a) Chartered Accountant within the meaning of the Chartered Accountants Act, 1949 ;
(b) Cost Accountant within the meaning of the Cost and Works Accountants Act, 1959 ;
(c) Actuary within the meaning of the Actuaries Act, 2006 ;
(d) Bachelor in Engineering from a University established by law or an institution recognised by law ;
(e) Bachelor in Technology from a University established by law or an institution recognised by law ;
(f) Bachelor in Architecture from a University established by law or an institution recognised by law ;
(g) Bachelor of Law from a University established by law or an institution recognised by law ;
(h) Master in Business Administration from Universities established by law or technical Institutions recognised by All India Council for Technical Education.
168B. Membership of professional body for partnership. (1) For the purposes of entering into partnership under clauses (4) and (5) of Part I of the First Schedule to the Act, a person shall be a member of any of the following professional bodies, namely:
(a) the Institute of Chartered Accountants of India established under the Chartered Accountants Act, 1949 (No.38 of 1949) ;
(b) the Institute of Cost and Works Accountants of India established under the Cost and Works Accountants Act, 1959 (No.23 of 1959) ;
(c) the Bar Council of India established under the Advocates Act, 1961 (No. 25 of 1961) ;
(d) the Institute of Engineers or Engineering from a University established by law or an institution recognised by law ;
(e) the Indian Institute of Architects established under the Architects Act, 1972 (No.20 of 1972) ;
(f) the Institute of Actuaries of India established, under the Actuaries Act, 2006 (No. 35 of 2006) ;
(g) Professional bodies or institutions outside India whose qualifications relating to Company Secretary recognised by the Council under sub-section (2) of section 38 of the Act..
