The power to appoint and remove a company secretary is vested in the board of directors, not the managing director, as per the memorandum and articles of association of the corporation.

J.V.Gupta, J.

1. This appeal is directed against the order of the single judge dated May 9, 1986, passed in Civil Writ Petition No. 258 of 1986 whereby the order of termination of the services of the writ petitioner, J. K. Aggarwal, was set aside. Shri J. K. Aggarwal, writ petitioner, was appointed as company secretary in the Haryana Seeds Development Corporation Limited, Chandigarh (hereinafter referred to as " the corporation "), on September 4, 1977. The said corporation is a company registered under the Indian Companies Act. It has a board of directors and a managing director also. In the memorandum and articles of association, Article 125A provides that the directors may appoint a secretary of the company for such term, on such remuneration and upon such conditions as they may think fit and any secretary so appointed may be removed by them. A copy of the resolution passed in the board meeting held on September 22, 1977, has been placed on record as annexure P-19 in this appeal by filing Civil Miscellaneous No. 594 of 1988 which was allowed.

2. During the course of his working, certain charges predominantly pertaining to inefficiency, insubordination, non-maintaining of faithful records and non-co-operation with subordinates, all pertaining to the writ petitioner were framed against him. An enquiry officer was appointed for the purpose. However, the writ petitioner was proceeded against ex parte and ultimately his report was against Shri J. K. Aggarwal. Acting on that report, the managing director of the corporation terminated the services of the writ petitioner and it was that order which was the subject-matter of challenge in the writ petition on a variety of grounds. However, the learned single judge, without going into the various contentions of the writ petitioner, found that the termination order was illegal on the short ground that the managing director had no authority to terminate the services of the writ petitioner as, according to the memorandum and articles of association, only the board of directors was competent to terminate the services of a company secretary.

3. Learned counsel for the appellant contended that the appointment was made by the managing director of the corporation as under Article 89(c) the board has conferred powers on the managing director, vide annexure R-7, such of the powers as they may think fit and confer such powers for such time and to be exercised for such objects and purposes and upon such terms and conditions and with such restrictions as they may think expedient and may from time to time revoke, alter or vary all or any such powers. He also referred to the definition of the term " officer ", as provided under Section 2(30) of the Companies Act, 1956 , which reads as under :

"officer includes any director, managing agent, secretaries and treasurers, manager or secretary, or any person in accordance with whose directions or instructions the board of directors or any one or more of the directors is or are accustomed to act, and also includes-- (a) where the managing agent or the secretaries and treasurers is or are a firm, any partner in the firm ;

(b) where the managing agent or the secretaries and treasurers is or are a body corporate, any director or manager of the body corporate ;

but, save in Sections 477, 478, 539, 543, 545, 621, 625 and 633, does not include an auditor."

4 According to learned counsel, the said definition of the term "officer" includes a secretary and, therefore, the managing director was competent to appoint him as such as authorised, vide annexure R-7, and since the appointment was made by the managing director, he was competent to terminate the services as well. He also referred to annexure R-1, the appointment letter in this behalf, which was written on behalf of the managing director to Shri J. K. Aggarwal offering him the post of company secretary at Chandigarh. According to learned counsel, the said definition of the term "officer" referred to a