by Section 110 of the Act mandates the transacting of certain business items by means of postal ballot. Postal Ballot means casting of vote by a shareholder by postal or electronic mode instead of voting personally by being present for transacting business in general meeting of the company.
As per Companies Act 2013, the provisions of postal ballot are applicable to all companies except the following companies which are not required to transact any business through postal ballot:
- One Person Company
- Other Companies having members up to 200.
If a resolution is assented to by the requisite majority of the shareholders by means of postal ballot, it shall be deemed to have been duly passed at a general meeting convened in that behalf.
For all equity listed companies, it is mandatory for companies to also provide an option of remote e-voting to its shareholders along with postal ballot. However, the same is not mandatory for unlisted companies.
Applicability
The system of voting is applicable for all public that consists of more than 200 members and private limited companies. One Person Company (OPC) or any other entity with membership strength of 200 or less cannot make use of this system.
Transaction of Business through Postal Ballot
Rule 22 of the Companies (Management and Administration) Rules, 2014 specifies the following items of business to be transacted by means of voting through postal ballot:
- Alteration of Object clause of Memorandum.
- Conversion of private company into a public company and vice versa.
- Change of location of the registered office outside the limits of any city, town or village.
- Change in Objects owing to which a company has gathered funds from the public through a prospectus, and the existence of any unutilized amount out of the money so raised.
- Issue of shares through differential voting rights.
- Variation of rights of shareholders, debenture holders or other security holders.
- Buy-back of a company’s shares.
- Sale of the whole or bulk of an undertaking of the company.
- Providing loans, guarantee or security in excess of the specified limit.
Postal Ballot Facilities for Absentee Voters
The Election Commission of India has made efforts to ensure that the electors those who are unable to come and vote in polling booth or absentee voters are facilitated with the process of a postal ballot paper. This facility ensures wider participation in the electoral process.
The absentee voters under clause (c) of section 60 of the Act, are as follows:
- Persons with Disabilities (PwD)
- Senior citizens of more than 80 years
- People who are employed under the essential services such as railways, state transport and aviation etc.
These provisions will include the process of identification of such voters, the manner of outreach, the processes of the collection as well as voting in the designated centres in each constituency.
Application
In case of an absentee voter, the application would be made in the form 12D along with the particulars as specified therein. The application to be duly verified by the nodal officer for the absentee voter, except the senior citizen or person with a disability, which would reach the returning officer within 5 working days from the date of election notification. In such case, the postal ballot paper will be returned to the centre provided for recording of the vote under the rule 27F, subject to any direction that would be issued by the Election Commission in this behalf.
These two categories of a senior citizen voters of more than 80 years of age and PwD electors will be marked in the electoral roll having a choice of voting either as an absentee voter or as a regular voter on the poll day. In the case, any of the electors belonging to these categories intends to vote early, then as per the amended Rule 27C of the Conduct of Election Rules, 1961, the applicant can make an application in a new Form 12D, that would reach the Returning Officer within 5 days from following the date of notification of election. After the receipt of such application, the voter will be issued with a postal ballot paper, which would be deposited in the specified centre after the recording of the vote.
Postal Ballot Paper
As per the election commission, the voting facility through the postal ballot is accessible only to those doing election duties, army personnel, disabled people and senior citizens above 80 years of age. The ballot is sent through the postal service to the employees and military officers who do not have an electronic facility. If the electors do not use it or do not receive it then it returns to the sender’s address.
Resolutions that Cannot be Passed through Postal Ballot
The following resolutions cannot be passed through postal ballot:
- Ordinary Business.
- Businesses where directors or auditors are entitled to be heard at any meeting.
Procedure for Postal Ballot
As we now understand the fundamental aspects of the postal ballot, let us examine its procedures.
Personnel to Scrutinize
The Board shall appoint a scrutinizer who is not being employed by the company, so as to ensure fairness and efficiency in the voting process.
Board Resolution
The company must pass the requisite Board resolution for postal ballot. Also, the Board must plan and fix the recommended date and time schedule for various activities, and finalize the schedule of events.
Issue of Notice
The company is required to send a notice of postal ballot to all the shareholders, along with a draft resolution that describes the reason for the event. The shareholders must respond to the notice conveying their assent or dissent on the postal ballot, within a period of 30 days from the date of dispatch of the notice. The notice should also be published on the website of the company if any.
Notices can be sent through the following means:
- Registered post or speed post
- Any electronic means
- Courier service
Advertising in Newspaper
An advertisement pertaining to the dispatch of the postal ballot should be published in an English and vernacular newspaper. The advertisement must specify the following:
- A statement concerning the transacting of business through postal ballot.
- The date of completion of dispatch of notices.
- The date of commencement of voting through postal ballot.
- The concluding date of voting through postal ballot.
- A statement declaring that postal ballots received after the end of the voting period will be invalid.
- A statement declaring that the members, who have not received postal ballot forms may apply to the company and obtain a duplicate postal ballot.
- The contact details of the concerned person, in case of any grievances with postal ballot voting.
Safe Custody of Postal Ballot
Postal ballot and other relevant papers returned by the shareholders should be safely maintained by the scrutinizer, until the Chairman signs minutes. Scrutinizer should maintain a register to record assent or dissent received along with other details.
Declaration of Result
The result of postal ballot along with the scrutinizer’s report pertaining to the details of the ballot should be deemed to be passed on the date of a general meeting.
