On 19th October 2023 Mr. K.B. resigned after working about 45 days as a director. The Board wishes to fill up the said vacancy by appointing Mr.…

(a) 7 Section 161 (4) of the Companies Act, 2013 provides that if the office of any director appointed by the company in general meeting is vacated before his term of office expires in the normal course, the resulting casual vacancy may, in default of and subject to any regulations in the articles of the company, be filled by the Board of Directors at a meeting of the Board which shall be subsequently approved by members in the immediate next general meeting. Further, any person so appointed shall hold office only up to the date up to which the director in whose place he is appointed would have held office if it had not been vacated. In view of the above provisions, in the given case, the appointment of Mr. K.B. Chakraborty in place of the deceased director Mr. Rai was in order. In normal course, Mr. Mr. K.B. Chakraborty could have held his office as director up to the date to which Mr. Rai would have held the same. However, Mr. K.B. Chakraborty resigned on 19th October 2023 and again a vacancy has arisen in the office of director owing to resign of Mr. K.B. Chakraborty who was appointed by the board and approved by members to fill up the casual vacancy resulting from Mr. Rai's demise. Vacancy arising on the Board due to vacation of office by the director appointed to fill a casual vacancy in the first place, does not create another casual vacancy as section 161 (4) clearly mentions that such vacancy is created by the vacation of office by any director appointed by the company in general meeting. Hence, the Board cannot fill the vacancy arising from the resignation of Mr. K.B. Chakraborty who was appointed to fill as a casual vacancy. In fact, here the vacancy caused by the resignation of Mr. K.B. Chakraborty will result in an intermittent vacancy. This vacancy can be filled as per Rule 4 of the Companies (Appointment and Qualification of Directors) Rules, 2014 read with Section 149 (4) of the Companies Act, 2013. Following are the answers: (a) Accordingly, in the light of the said provisions, the Board may however appoint Mr. Stephen as a director in any capacity either independent or non-independent, as an additional director under section 161 (1) of the Companies Act, 2013 provided the articles of association authorise the Board to do so, in which case Mr. Stephen will hold the office up to the date of the next annual general meeting or the last date on which the annual general meeting should have been held, whichever is earlier. His appointment, if required, can be regularised in the subsequent general meeting of the Company pursuant to Section 149 and other related provisions of the Act. (b) Whereof, there is an intermittent vacancy of an independent director, it shall be filled-up by the Board at the earliest but not later than immediate next Board meeting or three months from the date of such vacancy, whichever is later. Here, Board may fill the vacancy caused by the resignation of Mr. K.B. Chakraborty by appointing Mr. Stephen in the capacity of an independent director within 3 months from date of vacancy (i.e., by 18th of January 2024) or immediate next Board meeting (i.e. 31st December 2023), whichever is later. Hence the maximum time period within which the proposed appointment of Mr. Stephen can be made is, latest by 18th January 2024.