Section 197: Overall maximum managerial remuneration and managerial remuneration in case of absence or inadequacy of profits
This section regulates the overall maximum managerial remuneration and managerial remuneration in case of absence or inadequacy of profits for public companies in India.
Penalty
(15) If any person makes any default in complying with the provisions of this section, he shall be liable to a penalty of one lakh rupees and where any default has been made by a company, the company shall be liable to a penalty of five lakh rupees.]
The section, clause by clause
What the section says
In plain terms
(1)The total managerial remuneration payable by a public company, to its directors, including managing director and whole-time director, and its manager in respect of any financial year shall not exceed eleven per cent. of the net profits of that company for that financial year computed in the manner laid down in section 198 except that the remuneration of the directors shall not be deducted from the gross profits:
The total managerial remuneration payable by a public company to its directors and manager for any financial year shall not exceed 11% of the net profits of the company for that year, except that the company in general meeting may authorise the payment of remuneration exceeding 11% of the net profits.
provisoProvided that the company in general meeting may, 3*** authorise the payment of remuneration exceeding eleven per cent. of the net profits of the company, subject to the provisions of Schedule V:
provisoProvided further that, except with the approval of the company in general meeting, 4[by a special resolution,]—
(1)(i)the remuneration payable to any one managing director; or whole-time director or manager shall not exceed five per cent. of the net profits of the company and if there is more than one such director remuneration shall not exceed ten per cent. of the net profits to all such directors and manager taken together;
(1)(ii)the remuneration payable to directors who are neither managing directors nor whole-time directors shall not exceed,—
(1)one per cent. of the net profits of the company, if there is a managing or whole-time director or manager;
(1)three per cent. of the net profits in any other case.
proviso1[Provided also that, where the company has defaulted in payment of dues to any bank or public financial institution or non-convertible debenture holders or any other secured creditor, the prior approval of the bank or public financial institution concerned or the non-convertible debenture holders or other secured creditor, as the case may be, shall be obtained by the company before obtaining the approval in the general meeting.]
(2)The percentages aforesaid shall be exclusive of any fees payable to directors under sub-section (5).
The percentages of remuneration mentioned earlier are exclusive of any fees payable to directors under sub-section (5).
(3)Notwithstanding anything contained in sub-sections (1) and (2), but subject to the provisions of Schedule V, if, in any financial year, a company has no profits or its profits are inadequate, the company shall not pay to its directors, including any managing or whole-time director or manager, 2[or any other non-executive director, including an independent director] by way of remuneration any sum exclusive of any fees payable to directors under sub-section (5) hereunder except in accordance with the provisions of Schedule V 3***.
If a company has no profits or its profits are inadequate, the company shall not pay to its directors any sum by way of remuneration except in accordance with the provisions of Schedule V.
(4)The remuneration payable to the directors of a company, including any managing or whole-time director or manager, shall be determined, in accordance with and subject to the provisions of this section, either by the articles of the company, or by a resolution or, if the articles so require, by a special resolution, passed by the company in general meeting and the remuneration payable to a director determined aforesaid shall be inclusive of the remuneration payable to him for the services rendered by him in any other capacity:
The remuneration payable to the directors of a company shall be determined by the articles of the company or by a resolution passed by the company in general meeting.
provisoProvided that any remuneration for services rendered by any such director in other capacity shall not be so included if—
(4)(a)the services rendered are of a professional nature; and
(4)(b)in the opinion of the Nomination and Remuneration Committee, if the company is covered under sub-section (1) of section 178, or the Board of Directors in other cases, the director possesses the requisite qualification for the practice of the profession.
(5)A director may receive remuneration by way of fee for attending meetings of the Board or Committee thereof or for any other purpose whatsoever as may be decided by the Board:
A director may receive remuneration by way of fee for attending meetings of the Board or Committee thereof, with the amount of such fees not exceeding the prescribed amount.
provisoProvided that the amount of such fees shall not exceed the amount as may be prescribed:
provisoProvided further that different fees for different classes of companies and fees in respect of independent director may be such as may be prescribed.
(6)A director or manager may be paid remuneration either by way of a monthly payment or at a specified percentage of the net profits of the company or partly by one way and partly by the other. 4*
A director or manager may be paid remuneration either by way of a monthly payment or at a specified percentage of the net profits of the company.
(8)The net profits for the purposes of this section shall be computed in the manner referred to in section 198.
The net profits for the purposes of this section shall be computed in the manner referred to in section 198.
(9)If any director draws or receives, directly or indirectly, by way of remuneration any such sums in excess of the limit prescribed by this section or without approval required under this section, he shall refund such sums to the company, within two years or such lesser period as may be allowed by the company, and until such sum is refunded, hold it in trust for the company.]
If any director draws or receives remuneration in excess of the limit prescribed by this section, he shall refund such sums to the company within 2 years.
(10)The company shall not waive the recovery of any sum refundable to it under sub-section (9) unless 1[approved by the company by special resolution within two years from the date the sum becomes refundable].
The company shall not waive the recovery of any sum refundable to it under sub-section (9) unless approved by the company by special resolution within 2 years.
proviso2[Provided that where the company has defaulted in payment of dues to any bank or public financial institution or non-convertible debenture holders or any other secured creditor, the prior approval of the bank or public financial institution concerned or the non-convertible debenture holders or other secured creditor, as the case may be, shall be obtained by the company before obtaining approval of such waiver.]
(11)In cases where Schedule V is applicable on grounds of no profits or inadequate profits, any provision relating to the remuneration of any director which purports to increase or has the effect of increasing the amount thereof, whether the provision be contained in the company’s memorandum or articles, or in an agreement entered into by it, or in any resolution passed by the company in general meeting or its Board, shall not have any effect unless such increase is in accordance with the conditions specified in that Schedule 3***.
Any provision relating to the remuneration of any director which purports to increase the amount thereof shall not have any effect unless such increase is in accordance with the conditions specified in Schedule V.
(12)Every listed company shall disclose in the Board’s report, the ratio of the remuneration of each director to the median employee’s remuneration and such other details as may be prescribed.
Every listed company shall disclose in the Board’s report the ratio of the remuneration of each director to the median employee’s remuneration.
(13)Where any insurance is taken by a company on behalf of its managing director, whole-time director, manager, Chief Executive Officer, Chief Financial Officer or Company Secretary for indemnifying any of them against any liability in respect of any negligence, default, misfeasance, breach of duty or breach of trust for which they may be guilty in relation to the company, the premium paid on such insurance shall not be treated as part of the remuneration payable to any such personnel:
The premium paid on any insurance taken by a company on behalf of its directors or other personnel shall not be treated as part of the remuneration payable to such personnel.
provisoProvided that if such person is proved to be guilty, the premium paid on such insurance shall be treated as part of the remuneration.
(14)Subject to the provisions of this section, any director who is in receipt of any commission from the company and who is a managing or whole-time director of the company shall not be disqualified from receiving any remuneration or commission from any holding company or subsidiary company of such company subject to its disclosure by the company in the Board’s report.
Any director who is in receipt of any commission from the company shall not be disqualified from receiving any remuneration or commission from any holding company or subsidiary company.
(15)If any person makes any default in complying with the provisions of this section, he shall be liable to a penalty of one lakh rupees and where any default has been made by a company, the company shall be liable to a penalty of five lakh rupees.]
If any person makes any default in complying with the provisions of this section, he shall be liable to a penalty of 1 lakh rupees.
(16)The auditor of the company shall, in his report under section 143, make a statement as to whether the remuneration paid by the company to its directors is in accordance with the provisions of this section, whether remuneration paid to any director is in excess of the limit laid down under this section and give such other details as may be prescribed.
The auditor of the company shall make a statement in his report as to whether the remuneration paid by the company to its directors is in accordance with the provisions of this section.
(17)On and from the commencement of the Companies (Amendment) Act, 2017, any application made to the Central Government under the provisions of this section [as it stood before such commencement], which is pending with that Government shall abate, and the company shall, within one year of such commencement, obtain the approval in accordance with the provisions of this section, as so amended.]
Any application made to the Central Government under the provisions of this section which is pending shall abate, and the company shall obtain the approval in accordance with the provisions of this section within 1 year.
The right-hand column is written from the section text, not quoted from it, and it has no legal force. Where the two differ, the left-hand column is the law.
Amendment notes
- 1. The proviso ins. by Act 1 of 2018, s. 66 (w.e.f. 12-9-2018).
- 2. Subs. by s. 66, ibid., for “specified in that Schedule” (w.e.f. 12-9-2018).
- 3. The words “with the approval of the Central Government,” omitted by Act 1 of 2018, s. 67 (w.e.f. 12-9-2018).
- 4. Ins. by s. 67, ibid. (w.e.f. 12-9-2018).
- 1. The proviso ins. by Act 1 of 2018, s. 67 (w.e.f. 12-9-2018).
- 2. Ins. by Act 29 of 2020, s. 40 (w.e.f. 18-3-2021).
- 3. The words “and if it is not able to comply with such provisions, with the previous approval of the Central Government” omitted by s. 67, ibid. (w.e.f.12-9-2018).
- 4. Sub-section (7) omitted by Act 22 of 2019, s. 29 (w.e.f. 2-11-2018).
- 5. Subs. by Act 1 of 2018, s. 67 (w.e.f. 12-9-2018).
- 1. Subs. by Act 1 of 2018, s. 67, for “permitted by the Central Government” (w.e.f. 12-9-2018).
- 2. The proviso ins. by s. 67, ibid., (w.e.f. 12-9-2018).
- 3. The words “and if such conditions are not being complied, the approval of the Central Government had been obtained” by s. 67, ibid., (w.e.f. 12-9-2018).
- 4. Subs. by Act 22 of 2019, s. 29, for sub-section (15) (w.e.f. 2-11-2018).
- 5. Ins. by Act 1 of 2018, s. 67 (w.e.f. 12-9-2018).
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Reproduced from the official India Code print for reference. Check the current text on India Code before you rely on it, and read the section alongside its Rules. Nothing here is legal advice.