Appointment and Remuneration of

Managerial Personnel

Presentation
By
CA Anil Sharma
 Managerial Personnel
• Section 196 to 205 (Chapter XIII) of the
Companies Act, 2013.
• Schedule V to the Companies Act,2013.
• The Companies (Appointment and Remuneration
of Managerial Personnel) Rules, 2014 .
 Chapter XIII
• Section and Rules deal with the legal and
procedural aspects of appointment and
remuneration of Managing Director, Whole-
time Director or Manager, other KMPs.

• Various definitions:
– Managing director- Sec 2(54),
– Whole time Director- Sec 2(94),
– Manager -Sec 2(53),
– KMP- Sec 2(51).
 Definitions
• Sec 2(53) “manager” means an individual who, subject to the
superintendence, control and direction of the Board of Directors, has the
management of the whole, or substantially the whole, of the affairs of a
company, and includes a director or any other person occupying the
position of a manager, by whatever name called, whether under a contract
of service or not;

• Sec 2(54) “managing director” means a director who, by virtue of the

articles of a company or an agreement with the company or a resolution
passed in its general meeting, or by its Board of Directors, is entrusted
with substantial powers of management of the affairs of the company and
includes a director occupying the position of managing director, by
whatever name called.

• Sec 2(94) “whole-time director” includes a director in the whole-time

employment of the company;
 Sec 2(51)- Key Managerial Personnel

“key managerial personnel”, in relation to a company,

means—
• (i) the Chief Executive Officer or the Managing Director
or the Manager;
• (ii) the company secretary;
• (iii) the whole-time director;
• (iv) the Chief Financial Officer,
• (v) Such other officer, not more than one level the
directors who is in whole time employment,
designated as key management personnel by the Board
and
• (vi) such other officer as may be prescribed.
Thursday, April 30, 2020
Sec 196: Appointment of MD, WTD or Manager

• (1) No company shall appoint or employ at the

same time a managing director and a
manager.
• (2) No company shall appoint or re-appoint
any person as its managing director, whole-
time director or manager for a term exceeding
five years at a time.
• Provided that no re-appointment shall be
made earlier than one year before the expiry
of his term.
 Qualifications to be a MD/WTD/Manager-
Section 196(3)
• No company shall appoint or continue the employment of any
person as its MD, WTD or manager who—
– (a) is below the age of twenty-one years or has attained the age of
seventy years:
• Provided that appointment of a person who has attained the age of
seventy years may be made by passing a special resolution and the
explanatory statement annexed to the to indicate the justification for
appointing such person.
• Central Govt. may on application by the Board, in the most beneficial to the
company, may appoint such person even when votes in favour are more
than against.
– (b) is an undischarged insolvent or has at anytime been adjudged as
an insolvent;
– (c) has at any time suspended payment to his creditors, or makes, or
has at any time made, a composition with them; or
– (d) has at any time been, convicted by a court of an offence and
sentenced for a period of more than six months.
Sec 196(4): Approval of managerial remuneration
• Subject to the provisions of section 197 and Schedule V, a
MD/WTD/Manager shall be appointed and the terms and
conditions of such appointment and remuneration payable be
– approved by the Board of Directors at a meeting ,
– which shall be subject to approval by a resolution at the
next general meeting of the company and
– Shall also be subject to approval by the Central
Government in case such appointment is at variance to the
conditions specified in Part 1 of Schedule V.
 Conditions as per Schedule V
• Part I of Schedule V contains additional conditions
which must be satisfied by a person to be eligible for
appointment as managing director, whole-time
director or manager without the approval of the
Central Government:
– he had not been sentenced to imprisonment for any
period, or to a fine exceeding one thousand rupees, for
the conviction of an offence under various laws referred
in the Schedule.
– he had not been detained for any period under the
COFEPOSA.
– he is resident in India.
 Residential status of MD/WTD

• He is resident in India.
• Explanation : For the purpose of above, resident in
India includes a person who has been staying in
India for a continuous period of not less than
twelve months immediately preceding the date of
his appointment as a managerial person and who
has come to stay in India:
– (i) for taking up employment in India, or
– (ii) for carrying on a business or vocation in India
(having obtained proper employment visa)
• But this condition shall not be applicable to the
companies in notified special Economic Zones.
 Sec 197:Overall Maximum managerial remuneration

• The maximum ceiling for payment of managerial

remuneration by a public company to its MD/WTD and
Manager which shall not exceed 11% of the net profit of
the company in that financial year computed in
accordance with section 198 except that the
remuneration of the directors shall not be deducted from
the gross profits.
• Further, the company in general meeting may authorise
the payment of remuneration exceeding 11% of the net
profits of the company, subject to the provisions of
Schedule V.
• The net profits for the purposes of this section shall be
computed in the manner referred to in section 198.
 Sec 197:Maximum managerial remuneration
• The remuneration payable to any one MD/ WTD or Manager shall not exceed
5% of the net profits of the company and if there are more than one such
director remuneration shall not exceed 10% of the net profits to all such
directors and manager taken together.
• Except with the approval of the company in general meeting, the
remuneration payable to directors who are neither managing directors nor
whole-time directors shall not exceed:
— 1% of the net profits of the company, if there is a
managing or whole-time director or manager;
— 3% of the net profits in any other case.
Provided also that, where the company has defaulted in payment of dues to any
bank or public financial institution or non-convertible debenture holders or any
other secured creditor, the prior approval of the bank or public financial
institution concerned or the non-convertible debenture holders or other secured
creditor, as the case may be, shall be obtained by the company before obtaining
the approval in the general meeting.
Calculation of Net Profit for the purpose of Managerial
Remuneration (Section 198)
• Section 198 of the Companies Act, 2013 lays
down the manner of calculations of net profits of
a company any financial year for purposes of
Section 197.
• Sub- Section (2) specifies the sums for which
credit shall be given and sub-section (3) specifies
the sums for which credit shall not be given while
calculating the net profit.
• Similarly, sub-section (4)/(5) specifies the sums
which shall be deducted/not deducted while
calculating the net profit.
 Sec 197(11): Managerial remuneration in case of
inadequacy of profits
• If, in any financial year, a company has no profits or its
profits are inadequate, the company shall not pay to its
directors, including managing or whole time director or
manager, any remuneration exclusive of any fees
payable to directors except in accordance with the
provisions of Schedule V.
• In cases, where Schedule V is applicable on grounds of
no profits or inadequate profits, any provision relating
to the remuneration of any director which purports to
increase or has the effect of increasing the amount
thereof, shall not have any effect unless such increase
is in accordance with the conditions specified in that
Schedule.
 Mode of managerial remuneration

• A director or manager may be paid remuneration

either by way of a monthly payment or at a specified
percentage of the net profits of the company or partly
by one way and partly by the other. [Section 197 (6)]
• Any director who is in receipt of any commission from
the company and who is a managing or whole-time
director of the company shall not be disqualified from
receiving any remuneration or commission from any
holding company or subsidiary company of such
company subject to its disclosure by the company in
the Board’s report. [Section 197 (14)]
 Excess remuneration
• Sec 197(9): If any director draws or receives, directly or
indirectly, by way of remuneration any such sums in excess
of the limit prescribed by this section or without approval
required under this section, he shall refund such sums to
the company, within two years or such lesser period as may
be allowed by the company, and until such sum is refunded,
hold it in trust for the company.

• (10): The company shall not waive the recovery of any sum
refundable to it under sub-section( 9) mentioned above,
unless approved by the company by special resolution
within two years from the date the same becomes
refundable.
 Penal Provision under Sec 197
• (15) If any person contravenes the provisions of
this section, he shall be punishable with fine which
shall not be less than one lakh rupees but which
may extend to five lakh rupees.

• (16) The auditor of the company shall, in his report

under section 143, make a statement as to
whether the remuneration paid by the company to
its directors is in accordance with the provisions of
this section, whether remuneration paid to any
director is in excess of the limit laid down under
this section and give such other details as may be
prescribed.
 Restriction on managerial remuneration

• Any Director who is in receipt of any commission

from the company and who is a Managing
Director or Whole-time Director of the Company
can also receive any remuneration or commission
from any Holding Company or Subsidiary
Company of such Company subject to its
disclosure by the Company in the Board’s Report.
• Further the directors however cannot accept
remuneration or commission from any other
Company including associate companies.
 Sitting fee
• Independent Directors may be paid different
Sitting Fees compared to other directors.
• Independent Directors cannot receive stock
options. They may receive remuneration only
by way of sitting fees, or reimbursement of
expenses for participation in the Board and
other meetings or profit related commission
as approved by the members of the company.
 Other payment to directors
• For remuneration payable to any Director in
any other capacity, if such services are of
professional nature, no approval of the Central
Government is required, when the
Nomination and Remuneration Committee or
Board of Directors is of the opinion, that the
person possesses the necessary qualification
for practice of profession.
 THANK YOU

Contact me at:
9811320203
anil54@gmail.com

Thursday, April 30, 2020