Minutes of postal ballot under companies act 1956
The minutes of resolution by posted ballot deemed to have been passed in a general meeting. As the resolutions in respect of the businesses listed in rule 4 are required under the act to be passed in general meetings, it is also shown that the resolutions by postal ballot have been deemed to have passed in general meetings by the following processes. The company should convene a general meeting at around the time the postal ballot process is on.
Minutes of postal ballot
The draft resolution immersed by the notice for the postal ballot shall also be included in the general meeting. As holding a general meeting in between two annual general meetings will not be a regular feature in companies, the resolution postal ballot can be passed mostly only before AGM is held. This point shall always be kept in mind.
The result of the postal ballot should be announced by the chairman at the general meeting / AGM and the resolution, if passed by the postal ballot shall be included in the minutes of that meeting. By taking action as above, the said resolution shall be deemed to have been passed at a general meeting convened in that behalf.
Copy of board resolution to be formed to the registrar
Pursuant to paragraph 6 of the circular, a copy of the board resolution approving the draft resolution and notice in respect of the postal ballot be forwarded to the concerned ROC along with the statement of calendar of events for information within one work of the board resolution.
Certified copy of the resolution passed by postal ballot and explanatory statement shall be filled with the registrar, wherever applicable, within 30 days of the general meeting at which they are deemed to have been passed.
Postal ballot not applicable to unlisted public company
As passing of resolution passed specified in the rules by ballot has been made mandatory only for a listed company, an unlisted company cannot pass resolution by postal ballot as provided in section 192A.
Can a listed company avail of postal ballot for passing resolutions
Sub-section (1) of section 192A allows that a listed public company may get resolution under companies act 1956, passed a postal ballot, which is involved to such business notified by the central government.
Precautions to be taken when a listed company for passing resolutions
Where a listed company desires to avail of postal ballot for passing a resolution not immersed by the rules, it has to take note of the following:
Resolution requiring special notice in terms of section 190 of the act cannot be passed by postal ballot.
Sub-section (3) of section 192A provides that the notice to the shareholders shall be sent by registered post acknowledgement due or by any other method as mentioned by the central government in this behalf. As the rules specified by the government are applicable in the case of resolutions relating to the business specified in rule 4 of the rules.
Although the procedure to be followed for conducting business through postal ballot is stated in the rules to be applicable to the resolutions immersed by the said rules, it appears to be valid if a company follows the procedure laid down in the rules other than what is stated above in respect of resolutions not immersed by the rules.
It is mandatory to hold a general meeting for business of the company and for announcing the result of postal ballot
Sub-section (4) of section 192A states that a resolution assented to by the requisite majority in a postal ballot. The statement passed at a general meeting. If therefore follows that a postal ballot obviates the need to convene a general meeting for announcing the result of postal ballot that registration statements should be mentioned in their meetings.
View of the central government
It may be stated here that after notifying the postal ballot rules, 2001 on 10-5-2001, the MOC issued a general circular containing its views on queries raised on the provisions of section 192A and the Rules. The department clarified that any listed company which intends to transact such business as notified under rule 4 of the said rules has to do so only in the general meeting along with other ordinary business and special business, if any registration takes places.
Illustration of conducting a postal ballot in a listed company
We place below a specimen illustration as to how a listed company can conduct a postal ballot for getting the assent of the shareholders to a special resolution for inclusion of a new object in the memorandum of association in five appendices as stated below:
Recommendation of the board of a draft resolution for alteration of the object clause of the memorandum for the approval of shareholders by postal ballot.
- Approval of notice for AGM
- Appointing two persons as responsible for the entire postal ballot process.
- Fixing last date for receipt of signed postal ballots from shareholders.
- Appointment of scrutinizer
Filing of certified copy of resolution
In the illustration explained here, the special resolution for alteration of object clause of the MOA is the subject matter. The shareholders have a copy with an explanatory statement. The printed copy of the Memorandum as altered will be filed with ROC without fail. The registrar shall certify the registration within one month.