Distinguish between the following: Nominee Director and Independent Director.

CS Executive · Company Law · PYQS · December 2021
Distinguish between the following: Nominee Director and Independent Director.

Answer & Explanation:

Nominee Director A nominee director is an individual nominated by an institution, including banks and financial institutions, on the board of companies where such institutions have some 'interest. The 'interest' can either be in form of financial assistance such as loans or investment into shares. Such strategic investment may have a direct bearing on the profitability of a nominator and therefore appointment of nominee director becomes essential to facilitate monitoring of operations and business of the investee company. The main purpose of appointment of such persons is to safeguard the interest of the nominator, without conflicting with his/her fiduciary duty as a director. Such director plays several roles and responsibilities, including adequate disclosure of interest, reporting to the nominator and protection of the interest of company in its entirety. In case of holding the position in specialized entities, the person must act in accordance with the operations of such entities, guided by industry specific statutory requirements in addition to the general roles and responsibilities. As per explanation to Section 149(7) of the Companies Act, 2013-'nominee director' means a director nominated by any financial institution in pursuance of the provisions of any law for the time being in force, or of any agreement, or appointed by any Government, or any other person to represent its interests. Under the Companies Act, 2013, the appointment of a nominee director is made in accordance with section 161(3), which provides that: 'Subject to the articles of a company, the Board may appoint any person as a director nominated by any institution in pursuance of the provisions of any law for the time being in force or of any agreement or by the Central Government or the State Government by virtue of its shareholding in a Government company.' The main objective of appointment of a nominee director is to ensure that Borrower Company complies with all legal requirements under various laws. In other words, nominee directors are watchdogs of the financial institutions to safeguard their investments. Conventionally, a nominee director is nominated' by a nominator. The nominator has all the rights with respect to appointment, removal, resignation or cessation and the terms and conditions of appointment form part of a long term agreement or a shareholders' agreement entered into with the investee company. Since a nominee director is generally appointed by the nominator at its own terms, his office is liable for retirement by rotation, unless otherwise provided in the shareholder's agreement A nominee director is not merely a thread to protect the interests of nominator, but / he/she is also capable of giving meaningful insights towards better corporate governance practices and functioning of the company. His/her specialized knowledge in the field of finance and banking is a utility for the investee company, which can be deployed in taking critical policy and business decisions, benefitting the company as a whole. Independent Director Section 149, 150 of Companies Act, 2013 and Schedule IV read with Rule 4, 5 & 6 of the Companies (Appointment and Qualification of Directors) Rules, 2014 deals with Independent Directors. Independent Director is viewed as a solution to various corporate governance problems. Every listed public company shall have at least one-third of the total number of directors as independent directors. Any fraction contained in such one third numbers shall be rounded off as one. According to Rule 4 of the Companies (Appointment and Qualification of Directors) Rules, 2014 the classes of companies are required to have at least two directors as independent directors, viz. the Public Companies having paid up share capital of ten crore rupees or more; or the Public Companies having turnover of one hundred crore rupees or more; or the Public Companies which have, in aggregate, outstanding loans, debentures and deposits, exceeding fifty crore rupees. Section 149(6) of the Act, an independent director in relation to a company, means a director other than a managing director or a whole-time director or a nominee director; is a person of integrity and possesses relevant expertise and experience; who is or was not a promoter of the company or its holding, subsidiary or associate company; who has or had no pecuniary relationship, other than remuneration as such director or having transaction not exceeding ten per cent. of his total income or such amount as may be prescribed, with the company, its holding, subsidiary or associate company, or their promoters, or Directors, during the two immediately preceding financial years or during the current financial year. None of whose relatives shall be holding security or interest in the company for preceding two financial years; or indebted to the company or has any other pecuniary transaction or relationship with the company amounting to two per cent. or more of its gross turnover or total income singly or in combination with the transactions. An independent director is required to possess appropriate skills, experience and knowledge in one or more fields of finance, law, management, sales, marketing, administration, research, corporate governance, technical operations or other disciplines related to the company's business.

Topics: Directors

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