A director resigned but DIR-12 was never filed: is he still a director?

The resignation email is in somebody's inbox from four months ago, and the MCA master data still shows the director on the board. Two questions get mixed up here: whether he is still a director, and whether the company has complied.

The Act answers the first with a date. The Rules answer the second with a form and a thirty-day clock. Keeping the two apart is the whole exercise.

When the resignation actually takes effect

Not on filing, and not on the board "accepting" it. Section 168(2) fixes the date:

"The resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later" (s.168(2), Companies Act 2013).

There are two dates in that sentence. The default is the date the company received the notice. The alternative is the date the director specified in the notice. Where both exist, the later one governs. A director therefore cannot bring the effective date forward by writing an earlier date in the letter, and a company cannot extend his tenure by sitting on the email.

What the Act asks of the director is modest: a notice in writing to the company (s.168(1)). Nothing in the section makes the resignation conditional on Board approval, and nothing makes it conditional on a filing. The Board's duty on receipt is to "take note of the same" (s.168(1)). That is a recording obligation, not a power to refuse.

So, on the text, a director who gave written notice that the company received on a given date is out from that date (or from the later date he specified), whether or not DIR-12 was filed. A missing DIR-12 is a compliance failure with its own consequences. It does not keep the office alive.

What the company owes the Registrar

Section 168(1) states the company's duty and leaves the detail to the Rules:

"A director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place the fact of such resignation in the report of directors laid in the immediately following general meeting by the company" (s.168(1), Companies Act 2013).

Three obligations are stacked in that sentence:

• the Board takes note of the notice;
• the company intimates the Registrar in the prescribed manner, time and form;
• the company places the fact of the resignation in the directors' report laid at the immediately following general meeting.

The Rules supply the form and the number:

"The company shall within thirty days from the date of receipt of notice of resignation from a director, intimate the Registrar in Form DIR-12 and post the information on its website, if any" (rule 15, Companies (Appointment and Qualification of Directors) Rules, 2014).

The company's clock therefore runs thirty days from receipt of the notice, and the duty is the company's. The rule also requires the information to be posted on the company's website, if it has one.

The directors' report is the second disclosure, and it is easy to forget. A company that files DIR-12 but leaves the resignation out of the report for the immediately following general meeting has still not done what s.168(1) asks.

What the director owes, separately

The director has a filing of his own. The proviso to s.168(1) gives it:

"Provided that a director may also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed" (proviso to s.168(1), Companies Act 2013).

Note "may" in the Act, and note the clock: thirty days of resignation, not thirty days from the company receiving anything. Rule 16 gives the mechanics:

"Where a director resigns from his office, he shall within a period of thirty days from the date of resignation, forward to the Registrar a copy of his resignation along with reasons for the resignation in Form DIR-11 along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014" (rule 16, Companies (Appointment and Qualification of Directors) Rules, 2014).

DIR-11 is therefore the director's own record, with reasons, and a fee under the Registration Offices and Fees Rules. It puts his version on the public file independently of the company.

The two filings are not alternatives. They are duties of two different persons with two different starting points:

If DIR-12 was never filed

Three points follow from the text. None of them is "the resignation is void".

The resignation still took effect on its own date (s.168(2)). The absence of DIR-12 is a filing default. It does not revive the office.

The DIR-12 obligation is the company's, because rule 15 places it on the company.

Liability for what happened during the tenure does not disappear:

"Provided that the director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure" (proviso to s.168(2), Companies Act 2013).

Read with the effective-date rule, the proviso draws a clean line. The resignation ends the office from its date and does not erase the period before it.

Mistakes that make a late filing a bigger problem

Waiting for "acceptance". There is no acceptance step in s.168. The Board takes note, and the resignation is effective on receipt or on the later date specified. A board that "has not accepted" the resignation has not, on the text, kept the director in office.

Assuming DIR-11 replaces DIR-12. The Rules prescribe both, to different persons. The director's DIR-11 does not discharge the company's DIR-12 under rule 15.

Misdating the notice. The section lets the director specify a later date. Under the "whichever is later" wording, a letter dated earlier than the day the company received it does not move the effective date back.

Filing DIR-12 and skipping the directors' report. The report obligation sits in the same sub-section as the Registry intimation, and the omission surfaces at the general meeting.

What to do now

• Fix the facts first. Find the written notice, the date the company received it, and any later date the director specified. Those two dates decide the effective date (s.168(2)).
• File DIR-12 now if it was not filed. The period is thirty days from the date of receipt of the notice (rule 15, Companies (Appointment and Qualification of Directors) Rules, 2014). If that period has passed, the filing is overdue and should not wait further.
• Director: consider DIR-11. The period is thirty days from the date of resignation, with reasons and the prescribed fee (proviso to s.168(1); rule 16).
• Put the resignation in the directors' report for the immediately following general meeting (s.168(1)).
• Consequence to keep in view. The resigned director stays liable for offences that occurred during his tenure (proviso to s.168(2)). The amount payable for a late DIR-12, and any additional fee for a delayed filing, are set elsewhere and are not covered in this article.

Have a CA review your facts before you act or file.

FAQ

He resigned by email. Is that a valid notice?
Section 168(1) requires a notice in writing to the company. Whether a particular email and the way it was sent meet that is a question about the document and the facts. For the effective date, what matters is the date the company received the notice (s.168(2)).

The board never passed a resolution accepting it. Is he still a director?
On the text, the resignation takes effect from receipt or the later date he specified. Section 168(1) requires the Board to take note of the notice. It does not make the resignation conditional on a resolution.

The company did not file DIR-12. Can the director file it himself?
DIR-12 is the company's intimation under rule 15. The director's own filing is DIR-11 under rule 16, within thirty days of resignation, with reasons. A CA should check what the portal permits in a given case before anything is filed.

How long does the company have?
Thirty days from the date it received the notice of resignation (rule 15).

Does resigning end his liability for what happened while he was on the board?
No. The proviso to s.168(2) keeps him liable for offences that occurred during his tenure.

The MCA data still shows him. Does that change the date he ceased to be a director?
The effective date comes from s.168(2), not from the master data. How the Registrar treats a stale record in a later filing is a procedural question that the provisions quoted here do not answer.

This note is general information about s.168 of the Companies Act 2013 and rules 15 and 16 of the Companies (Appointment and Qualification of Directors) Rules, 2014. It is not advice on a particular board.

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