CLAUSE 49 – AN ANALYSIS 3RD Directors’ Leadership Programme Organised by Centre for Corporate Governance Indian Institute of Management, Calcutta December 14, 2007 Dilip Kumar Sen CLAUSE 49 OF LISTING AGREEMENT WITH STOCK EXCHANGES INTRODUCED BY SEBI WEF 1ST APRIL 2000 BASED ON BIRLA COMMITTEE RECOMMENDATIONS SIGNIFICANTLY REVISED FROM 1ST JANUARY 2006 BASED ON PROPOSALS OF MURTHY COMMITTEE- CLAUSE 49 OF LISTING AGREEMENT WHICH APPLIES TO ALL LISTED COMPANIES HAS BEEN ONE OF THE MOST TALKED ABOUT ISSUE.
AFTER THE CLAUSE WAS FIRST INTRODUCED BASED ON THE PRACTICE FOLLOWED IN DEVELOPED COUNTRIES AND ALSO KEEPING IN MIND THE OECD PRINCIPLES ON CORPORATE GOVERNANCE THE CORPORATE WORLD HAS WITNESSED THE ENRON FIASCO AND THE ENACTMENT OF SARBANES OXLEY ACT IN THE USA . ARTHUR ANDERSEN THE AUDITORS OF ENRON WAS FOUND GUILTY BY THE US JURY ENRON IS JUST AN EXAMPLE – THERE WERE MANY OTHER LARGE CORPORATES WHERE INVESTIGATIONS HAD REVEALED HOW INFLATED EARNINGS WERE REPORTED AND HOW FINANCIAL REPORTINGS WERE MANIPULATED.
SOX ACT WHICH IS CONSIDERED AS A TOUGH ACT AIMED TO PLUG THE LOOPHOLES AND REQUIRED THE CORPORATES TO STRICTLY FOLLOW THE REQUIREMENTS OF THE ACT. OUR CG REQUIREMENTS HAVE BEEN REVISED KEEPING IN MIND SOME OF THE PROVISIONS OF THE SOX ACT EVEN THOUGH WE ARE SOMEWHAT LENIENT . A FLAVOUR OF A FEW ONEROUS CLAUSES OF SOX ACT ARE: 1. Section 201- List of services outside the scope of Auditors – Auditors cannot provide services such as Book keeping, financial information system design/implementation, internal audit, actuarial , valuation, investment adviser, expert srervices unrelated to audit etc. we still do not have any such prohibition 2. SECTION 302- CEO/CFO CERTIFICATION OF FINANCIAL STATEMENTS and review of internal control system and its deficiencies This requirement has been incorporated in clause 49 but an important requirement i. e. evaluation of the effectiveness of internal control systems as of a date within 90 days prior to the reporting date has not been adopted. Also in India CEO/CFO need to certify only annual financial statements and quarterly statements are still not required to be certified 3.
Section 401- Financial statements are to be accurate and do not include incorrect statements or fail to include material information and in particular it should include off-balance sheet transactions/liabilities and obligations; 4. Section 404 – Management assessment of internal control- its adequacy and effectiveness – Auditors to report on efficiency of internal control structure and procedure for financial reporting 5. Section 406 – A code of ethics for senior financial officers 6.
Section 409 – Real time disclosure on material changes in financial condition or operations- disclosure to be made in a manner easy to understand 7. Section 802- Penalties by way of fines and imprisonment upto 20 years for altering, falsifying, manipulating records/documents CERTAIN BASIC REALITIES ON CG 1. LEGISLATION/REGULATIONS PER SE CANNOT AND PERHAPS WILL NEVER BRING IN GOOD GOVERNANCE 2. CG IS ALWAYS A TOP DOWN PROCESS 3. ORGANISATION CULTURE AND THE MINDSET OF THE PERSONS AT THE HELM OF IT ARE KEY TO ACHIEVING EXCELLENCE IN CG 4.
BOARD ROOMS ARE NOT MEANT TO BE PLACES WHERE ONLY GOOD NEWS ARE TO BE MENTIONED. IT IS IMPORTANT IN MY VIEW TO SHARE WITH THE BOARD ALL BAD NEWS AT THE EARLIEST OPPORTUNITY WITHOUT CREATING ANY PANIC 5. INDEPENDENCE OF A DIRECTOR CAN NEVER BE ENSURED BY LEGISLATION – WHAT MAY WORK IS PERIODICAL TRAINING AND EDUCATION OF DIRECTORS A DIRECTOR WHO OSSESSES AN INDEPENDENT MIND IS MOST LIKELY TO FUNCTION INDEPENDENTLY EVEN IF LEGALLY HE IS NOT INDEPENDENT –DO WE LOOK FOR A TECHNICALLY INDEPENDENT DIRECTOR WHILE FILLING IN A VACANCY ?
WHY DOES POST ANY ACQUISITION WHEN BOARD IS RESTRUCTURED THE ERSTWHILE IDs ALSO STEP DOWN 6. ARE BOARDS SUPPOSED TO INTERVENE IN TIMES OF CRISIS ONLY? DECISIONS HOWSOEVER UNPLEASANT IF NOT TAKEN TIMELY WOULD ONLY ADD TO COST AS TIME REQUIRED FOR CORRECTIVE ACTIONS WILL BE LONGER ! 7. IN THE ERA OF CG ARE THE DAYS OF FRIENDLY AUDITORS ON THEIR WAY OUT ! DO WE WITNESS A CHANGE IN APPROACH AND ATTITUDE OF AUDITORS ? WHAT IS CG AND WHY DO WE NEED CORPORATE GOVERNANCE CORPORATE STRUCTURE 1. SEPARATION OF OWNERSHIP AND MANAGEMENT 2.
COMPANY IS AN ARTIFICIAL PERSON IN THE EYE OF LAW AND CAN ACT ONLY THROUGH AGENTS 3. DIRECTORS OF A COMPANY ARE THEREFORE AGENTS FOR THE COMPANY 4. DIRECTORS OCCUPY A FIDUCIARY POSITION AND ARE EXPECTED TO ACT IN GOOD FAITH IN THE INTEREST OF THE COMPANY. 5. DIRECTORS ARE NOT TRUSTEES IN THE STRICT SENSE OF THE TERM THOUGH THEY MANAGE SHAREHOLDERS’ FUNDS THESE ARE SOME OF THE CARDINAL PRINCIPLES ON WHICH CORPORATES OPERATE. IN OUR COUNTRY WE ALSO FIND LARGE NUMBER OF CORPORATES MANAGED BY FOUNDING FAMILIES. THERE APPEARS TO BE AN IMPLICIT ACCEPTANCE THAT CORPORATE ENTITIES BELONG TO THE FOUNDING FAMILIES .
EVEN WHEN THE SHAREHOLDING/VOTING POWER OF THE FOUNDERS IS LESS THAN ONE-THIRD OF PAID-UP CAPITAL THEY CONTROL THE BOARD AND MANAGEMENT. Clause 49 contains a series of Mandatory items and seven non mandatory items which are to be followed by Listed companies. Mandatory items include 1. Board composition – Definition of Independent director – Code of conduct for board members and senior management and affirmation of compliance thereof –Review of legal compliance –Disclosure of remuneration of non executive directors – restriction on membership of board committees – board to meet at least 4 times a year 2.
Audit committee- Minimum 3 directors as members with two-third as IDs-All members to be financially literate and at least one member must have expertise on accounting or financial management –Chairman to be an ID-must meet at least 4 times a year – has wide powers to investigate any matter and can obtain outside legal advice – Role of the committee and review of information by it 3.
Subsidiary companies – One ID of holding company to be on the board of material non-listed Indian subsidiary – Audit committee of holding company to review financial statements of subsidiaries including investments made – board meeting minutes of subsidiary companies to be placed before the board of holding company. 4.
Disclosures – Disclosures on Related Party transactions, Accounting treatment if different from what the Standard prescribes- Risk assessment and minimisation procedures – use of proceeds from public issues/rights /preferential issues – Remuneration of Directors –Management discussion and Analysis report – disclosure by Senior management to the board relating to their interest in all material commercial and financial transactions- disclosure to shareholders on particulars of directors seeking appointment/reappointment –quarterly results and presentation to analysts to be hosted on web site – to form a board committee under Chairmanship of a NED to redress shareholders grievances etc 5. CEO/CFO certification of annual financial statements 6. Quarterly report on compliance of CG norms to be submitted to SEs 7. Annual report to contain CG report as per prescribed format which is to be certified by Auditors NON MANDATORY ISSUES 1. MAINTENANCE OF CHAIRMAN’S OFFICE 2.
REMUNERATION COMMITTEE TO BE FORMED WITH ONLY NON-EXECUTIVE DIRECTORS AND CHAIRMAN OF THE COMMITTEE TO BE AN INDEPENDENT DIRECTOR 3. HALF YEARLY FINANCIAL RESULTS INCLUDING SUMMARY OF SIGNIFICANT EVENTS IN THE SIX MONTHS TO BE SENT TO ALL SHAREHOLDERS 4. Companies should move to a regime of unqualified audit report on financial statements 5. Companies may train its board members on business model of the company, its risk profile, responsibilities of directors and the best way to discharge them 6. Evaluation of performance of Board members – Peer group evaluation of performance of non executive directors could be the mechanism to determine whether to extend or continue the terms of appointment of non executive directors 7.
Whistle Blower Policy – The company may establish a mechanism for its employees to report concerns about unethical behaviour, actual or suspected fraud, or violation of company’s Code of Conduct . The mechanism should provide adequate safeguards against victimisation of employees who avail the mechanism and also provide direct access to the Chairman of Audit committee in exceptional cases. WHAT THE GOVERNMENT HAS DONE SO FAR TO IMPROVE CG UNLIKE SOUTH EAST AND EAST ASIAN COUNTRIES THE DRIVE FOR BETTER CORPORATE GOVERNANCE AND DISCLOSURE IN INDIA DID NOT START BECAUSE OF ANY MAJOR FINANCIAL COLLAPSE. INITIAL DRIVE INDEED CAME AS A CONSEQUENCE OF LIBERALISATION AND GLOBALISATION OF THE ECONOMY AND THE ONSET OF INTERNATIONAL COMPETITION.
NO DOUBT DEMANDS FOR BETTER NORMS ON CG WERE MADE FOLLOWING THE HARSHAD MEHTA SCAM, KETAN PARIKH SCAM, UTI SCAM, CR BHANSALI SCAM , VANISHING COMPANY SCAM , STAMP PAPER SCAM ETC. GOVERNMENT HAS REACTED STRONGLY BY PRESCRIBING MANY STRINGENT CG REQUIREMENTS BUT UNFORTUNATELY WE SEE A WIDE GAP BETWEEN PRESCRIPTION AND PRACTICE. GIVEN BELOW IS A LIST OF SOME OF THE ACTIONS THAT THE GOVERNMENT HAS ALREADY TAKEN 1. INCREASING VERY SUBSTANTIALLY THE POWERS AND FUNCTIONS OF SEBI INCLUDING RIGHT OF INSPECTION OF BOOKS AND RECORDS OF ANY LISTED COMPANY , POWER TO SUSPEND TRADING OF ANY SECURITY,POWER TO RESTRAIN ANY PERSON FROM ACCESSING THE SECURITIES MARKET,POWER TO CARRY OUT INVESTIGATION INTO THE AFFAIRS OF ANY PERSON OR MARKET INTERMEDIARY, ENORMOUS INCREASE IN THE AMOUNT OF PENALTY(MAX.
PENALTY CAN NOW BE RS. 25 CRORES OR THREE TIMES THE PROFIT MADE ON SECURITIES TRANSACTIONS) ETC. SEBI HAS ALSO PRESCRIBED MANY REGULATIONS ON DISCLOSURE TAKEOVER, CODE OF CONDUCT ETC. 2. AMENDING THE COMPANIES ACT TO PROVIDE FOR ISSUES LIKE DIRECTORS RESPONSIBILITY STATEMENT, ADHERENCE TO ACCOUNTING STANDARDS, SETTING UP OF NATIONAL ADVISORY COMMITTEE ON ACCOUNTING STANDARDS, DIRECTORS DISQUALIFICATION UNDER CERTAIN CIRCUMSTANCES, MANDATORY REQUIREMENT OF AUDIT COMMITTEE FOR PUBLIC COMPANIES WITH PAID UP CAPITAL OF RS. 5 CRORES OR MORE, PASSING OF CERTAIN RESOLUTIONS ONLY THROUGH POSTAL BALLOTS ETC. 3. INCREASING THE SITTING FEES OF NON EXECUTIVE DIRECTORS 4.
SETTING UP OF NARESH CHANDRA COMMITTEE TO ANALYSE AND RECOMMEND CHANGES RELATING TO ISSUES LIKE AUDITOR-COMPANY RELATIONSHIP, ROTATION OF AUDITORS,RESTRICTION ON NON-AUDIT SERVICES, INDEPENDENCE OF AUDIT FUNCTION, ROLE OF INDEPENDENT DIRECTORS, CERTIFICATION OF ACCOUNTS BY CEO/CFO, SETTING UP OF AN INDEPENDENT REGULATOR LIKE PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD ETC. 5. SETTING UP OF KUMARMANGALAM BIRLA COMMITTEE BASED ON WHICH CG NORMS WERE INTRODUCED IN THE LISTING AGREEMENT 6. SETTING UP OF IRANI COMMITTEE FOR RECOMMENDING A THOROUGH REVIEW OF THE COMPANIES ACT 1956 7. SETTING UP OF MURTHY COMMITTEE TO REVIEW THE EXISTING CLAUSE 49 OF LISTING AGREEMENT AND SUGGEST CHANGES 8.
DISCLOSURE THROUGH WEBSITE THE QUARTERLY FINANCIAL RESULTS, CORPORATE GOVERNANCE REPORT, SHAREHOLDING PATTERN, ANNUAL REPORT, ANY PRESENTATION TO ANALYSTS ETC. 9. SETTING UP OF A COMMITTEE TO RECOMMEND CHANGES IN SCHEDULE VI TO THE COMPANIES ACT,1956 ON FORM AND CONTENT OF BALANCE SHEET AND PROFIT AND LOSS ACCOUNT 10. INTRODUCTION OF THE COMPANIES(AUDITORS REPORT) ORDER 2003 IN SUPERSESSION OF MAOCARO CARO REQUIRES THE AUDITOR TO MAKE VERY SPECIFIC COMMENTS IN THEIR REPORT ON ISSUES LIKE WHETHER FUNDS RAISED FOR SHORT TERM PURPOSES WERE USED FOR LONG TERM USE AND VICE VERSA,FAILURE TO MEET OBLIGATIONS UNDER LOAN AGREEMENT, FRAUD, WHETHER GUARANTEES GIVEN FOR BORROWINGS OF OTHER COMPANIES IS PREJUDICIAL TO THE INTEREST OF THE COMPANY ETC. 11.
INTRODUCTION OF BENAMI TRANSACTIONS PROHIBITION ACT, PREVENTION OF MONEY LAUNDERING ACT ,TIGHTER REGULATIONS ON INSIDER TRADING AND REPEALING OF SICK INDUSTRIAL COMPANIES ACT. HISTORY WILL SHOW THAT SICA WAS USED BY UNSCRUPULOUS MANAGEMENT TO THEIR BENEFITINDUSTRIES BECOME SICK BUT INDUSTRIALISTS DO NOT BECOME SICK 12. RESERVE BANK OF INDIA HAS ALSO ISSUED GUIDELINES ON CORPORATE GOVERNANCE THAT THE BANKS ARE REQUIRED TO FOLLOW. SIMULTANEOUSLY APPLICATION OF ACCOUNTING STANDARDS , PRUDENTIAL NORMS ON INCOME RECOGNITION AND PROVISIONING , CAPITAL ADEQUACY NORM, NORM ON NPA ETC HAVE ALSO BEEN PRESCRIBED. 13. DECISION TO SET UP SERIOUS FRAUDS INVESTIGATION OFFICE UNDER DCA. 14. SETTING UP OF NATIONAL FOUNDATION ON CORPORATE GOVERNANCE GOING FORWARD WE EXPECT THAT THE GOVT.
WILL SOON PROPOSE MAJOR AMENDMENTS TO THE COMPANIES ACT BASED ON REPORTS OF NARESH CHANDRA COMMITTEE , JPC ON SECURITIES SCAM AIMED AT INCORPORATING PROVISIONS RELATING TO INDEPENDENCE OF AUDITORS AND CORPORATE GOVERNANCE AND IRANI COMMITTEE ON COMPANIES ACT CLAUSE 49 IS ALSO LIKELY TO BE FURTHER MODIFIED SO THAT THERE IS GREATER DISCLOSURES, EASIER AVAILABILITY OF UPTODATE INFORMATION, SUBMISSION OF MUCH WIDER INFORMATION TO THE BOARD WHAT DO WE SEE IN REAL LIFE IT IS HOWEVER DIFFICULT TO COMMENT WHETHER ANY SIGNIFICANT CHANGE IN THE MANNER IN WHICH BOARDS FUNCTION HAS ALSO TAKEN PLACE. WE HAVE HOWEVER COMPANIES WHO VOLUNTARILY BENCHMARK THEIR CG PRACTICES WITH INTERNATIONAL BEST PRACTICES. THE ANNUAL REPORT OF A LEADING IT COMPANY NOT ONLY SPECIFIES COMPLIANCE WITH THE CG NORMS APPLICABLE TO AN INDIAN LISTED COMPANY BUT CONFIRMS COMPLIANCE WITH THE UN GLOBAL COMPACT PROGRAMME . IT ALSO PROVIDES SEPARATE CG REPORT FOR SIX MAJOR GEOGRAPHIES WHERE IT HAS BUSINESS INTERESTS.
BUT SUCH COMPANIES ARE VERY FEW IN NUMBER. IN MY VIEW THE MOST IMPORTANT ISSUE ON GOVERNANCE IS A CHANGE OF MINDSET AND ATTITUDE. DO WE EXAMINE EVERY MAJOR DECISION FROM THE GOVERNANCE POINT OF VIEW ? EXCELLENCE IN CORPORATE GOVERNANCE CANNOT BE EXPECTED TO BE ACHIEVED OVERNIGHT AS THE PREREQUISITE IS CHANGE OF MINDSET AND ORGANISATION CULTURE BOTH OF WHICH TAKES TIME. WITHOUT THAT CG COMPLIANCE WILL REMAIN A BOX TICKING EXERCISE. WE ARE ALREADY AHEAD OF MANY OTHER COUNTRIES IN SO FAR AS REGULATIONS ON CG ARE CONCERNED. I HAVE NO DOUBT THAT IN THE COURSE OF NEXT FEW YEARS OUR STANDARD OF CORPORATE GOVERNANCE WILL IMPROVE AND HOPEFULLY IMPROVE SIGNIFICANTLY.
HAVE WE CHANGED ENOUGH ON CG IN OUR COUNTRY THERE ARE COMPANIES WHERE THE CG PRACTICES GO WELL BEYOND THE REQUIREMENTS OF LISTING AGREEMENT. SOME COMPANIES VOLUNTARILY BENCHMARK THEIR STANDARD OF CG PRACTICES WITH INTERNATIONAL BEST PRACTICES. WE HAVE ONE OF THE MOST ROBUST CG NORMS FAR BETTER THAN MOST OTHER COUNTRIES. BUT IF REGULATORY REQUIREMENTS OR LEGAL PROVISIONS ALONE COULD BRING ABOUT THE DESIRED CHANGE INDIA WOULD HAVE BEEN FAR AHEAD OF OTHER COUNTRIES AS WE ARE ONE OF THE MOST LEGISLATED COUNTRY IN THE WORLD. SIMULTANEOUSLY WE ALSO FIND THAT ACCORDING TO A STUDY OF TRANSPARENCY INTERNATIONAL INDIA’S RANKING IN CORRUPTION INDEX IS NOT SHOWING SIGNS OF ANY MAJOR IMPROVEMENT.
INDIA’S RANKING ON CORRUPTION INDEX UNFORTUNATELY CONTINUES TO REMAIN VERY POOR THIS MAY HAVE LOT TO DO WITH OUR PUBLIC GOVERNANCE SYSTEM WHICH IF NOT ANYTHING IS WEAK. WE HAVE VERY LARGE NUMBER OF VANISHING COMPANIES WHO ARE NOT TRACEABLE AFTER RAISING LARGE SUMS OF MONIES THROUGH PUBLIC OFFERINGS. OUR COMMERCIAL BANKS STILL CARRY VERY LARGE AMOUNT OF WHAT IS KNOWN AS NON-PERFORMING ASSETS. WE DO NOT SEEM TO HAVE AN EFFECTIVE SYSTEM OF IMPLEMENTATION OF THE REGULATIONS. UNLESS CORRUPT PRACTICES ARE EFFECTIVELY PUNISHED THERE WILL NOT BE PROPER ENCOURAGEMENT OF GOOD CORPORATE BEHAVIOUR. I BELIEVE THAT IN OUR COUNTRY FEAR OF PUNISHMENT ACTS WELL TOWARDS BETTER COMPLIANCE.
IF NO ATTEMPT IS MADE TO DETECT THE VIOLATORS AND EVEN IF DETECTED THEY CAN GET AWAY REGULATIONS ON CG WILL REMAIN IN STATUTE BOOKS ONLY. ANOTHER ASPECT WHICH COULD WORK WELL IS PEER PRESSURE AMONG THE DIRECTORS. SHOULD CEOS BE EVER ALLOWED TO TAKE THE BOARD FOR GRANTED – WHICH HAPPENS WHEN THERE IS INADEQUATE PARTICIPATION OR PRESSURE FROM OTHER BOARD MEMBERS – PERHAPS MORE SO WHEN THE BOTTOM LINE IS SATISFACTORY ! OURS IS INDEED AN AMAZING COUNTRY – ON THE ONE HAND WE HAVE PEOPLE LIKE LATE SATYENDRA DUBEY WHO LAID DOWN HIS LIFE TO PREVENT CORRUPTION ON THE OTHER HAND WE SEE INNOVATIVE SCAMSTARS WHO IDENTIFY FAULTS AND LOOPHOLES IN THE SYSTEMS AND TAKE ADVANTAGE OF THE SAME.
BY THE TIME THE AUTHORITIES PLUG THE LOOPHOLES MANY SMALL AND UNSUSPECTING INVESTORS’ HARD EARNED MONEY WOULD HAVE VANISHED. AS MENTIONED EARLIER WE DO NOT HAVE ANY DEARTH OF REGULATIONS BUT PERHAPS WE LACK IN IMPLEMENTATION. ONCE THE AUTHORITIES START FOCUSSING ON IMPLEMENTATION ONE CAN EXPECT MAJOR CHANGES. VERY RECENTLY SEBI CHAIRMAN HAS OBSERVED THAT WE DO NOT NEED PEOPLE JUST TO GRACE THE BOARD – WE NEED TO SEE HOW THEY ADD VALUE TO THE BOARD. DOES FILMSTARS OR CRICKETERS ON THE BOARD ADD VALUE ? IN ALL THESE REPORTS OF VARIOUS COMMITTEES IT APPEARS THAT A KEY ISSUE HAS NOT BEEN DISCUSSED. NOWHERE ONE FINDS A DISCUSSION ON HOW A PERSON COMES TO HOLD THE POSITION OF A NONEXECUTIVE DIRECTOR OF A COMPANY.
IN THE CONTEXT OF OUR COUNTRY WHERE THE POSITION OF A NONEXECUTIVE DIRECTOR IS CONSIDERED MORE AS A STATUS SYMBOL THAN A POSITION OF RESPONSIBILITY, I BELIEVE THAT A PERSON JOINS THE BOARD OF A COMPANY AS A NON-EXECUTIVE DIRECTOR UNDER ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES: I)THE PERSON IS A FRIEND OF THE CHAIRMAN OR THE CEO; II)THE PERSON IS KNOWN TO THE CHAIRMAN/CEO THROUGH SOCIAL CIRCUIT OR OLD SCHOOL/COLLEGE CONNECTION OR GOLF OR OTHER CLUBS; INDEPENDENCE OF DIRECORS SEVERAL HIGH POWERED COMMITTEES HAVE CONSIDERED THIS ISSUE THOROUGHLY AND HAVE REPORTED ON IDs III)THE PERSON IS A PARTNER/SENIOR EXECUTIVE OF AN AUDIT/LEGAL OR CONSULTANCY FIRM WHICH PROVIDES AUDITING/LEGAL/CONSULTANCY SERVICES TO OTHER COMPANIES IN THE SAME GROUP ;
IV)THE PERSON IS A RETIRED SENIOR GOVERNMENT OR PUBLIC SECTOR OFFICIAL AND HAD OCCASIONS TO INTERACT WITH THE CHAIRMAN/CEO DURING HIS/HER SERVICE PERIOD V)THE PERSON HAS BEEN RECOMMENDED BY ANOTHER FRIENDLY BUSINESS GROUP WHERE HE IS ALREADY A NONEXECUTIVE DIRECTOR VI)THE PERSON HAD EARLIER SERVED ON THE BOARD OF THE COMPANY AS A NOMINEE DIRECTOR AND HAD EARNED THE TRUST AND RESPECT OF THE CHAIRMAN/CEO DURING THAT PERIOD WHICH PROMPTED THE CHAIRMAN/CEO TO INVITE HIM TO JOIN THE BOARD POST HIS STINT AS NOMINEE DIRECTOR ; VII)THE PERSON IS A RETIRED SENIOR EXECUTIVE OF ANOTHER COMPANY IN THE SAME GROUP; VIII)THE PERSON IS AN ACADEMICIAN WHO HAD CONDUCTED SEMINARS AND CONFERENCES IN THE ORGANIZATION AND HAD CLOSELY INTERACTED WITH THE CEO ON MANY EARLIER OCCASIONS IX)THE PERSON POSSESSES TECHNICAL SKILLS/EXPERTISE ESSENTIAL FOR COMPANY’S BUSINESS AND THE COMPANY FREQUENTLY SEEKS HIS/HER ADVICE.
WHILE THERE CAN ALWAYS BE SEVERAL OTHER REASONS FOR INDUCTING A PERSON ON THE BOARD OF A COMPANY, IN MY VIEW, TWO BASIC ISSUES ALWAYS APPEAR TO STANDOUT IN SELECTION OF A NON-EXECUTIVE DIRECTOR. THESE ARE THE PERSON MUST BE REASONABLY WELL-KNOWN TO THE CHAIRMAN/CEO AND/OR A PERSON OF REASONABLE EMINENCE; AND THE PERSON MUST, IN THE OPINION OF THE CHAIRMAN/CEO, BE TRUSTWORTHY. PRIOR RELATIONSHIP WITH CHAIRMAN/CEO IS NECESSARY TO BE INVITED TO JOIN THE BOARD NEEDLESS TO SAY THAT A PERSON JOINS THE BOARD BY INVITATION ONLY(EXCEPT FOR NOMINEE DIRECTORS). INVITATION TO JOIN THE BOARD CAN ONLY BE SENT TO THOSE PERSONS WHO ARE KNOWN TO THE CHAIRMAN/CEO AND WHOM THEY CAN TRUST. INDUCTING A DIRECTOR ON THE BOARD COULD OFTEN BE FAR LESS DIFFICULT THAN MAKING A DIRECTOR QUIT HIS BOARD POSITION.
HENCE IT IS ONLY NATURAL TO EXERCISE CAUTION WHILE SELECTING A PERSON TO JOIN THE BOARD. ONE CANNOT EXPECT THAT JUST BECAUSE A PERSON IS EMINENT IN HIS/HER FIELD HE/SHE WOULD BE APPROACHED BY LEADING COMPANIES WHO HITHERTO HAD NO CONTACT WITH HIM/HER TO JOIN THEIR BOARDS. ONLY A NOMINEE DIRECTOR COULD BE AN EXCEPTION TO SUCH RULE. SEBI CHAIRMAN HAS REPORTED TO HAVE COMMENTED RECENTLY THAT SOME PEOPLE GET ON COMPANY BOARDS AND BECOME PERMANENT ENTITIES-MORE PERMANENT THAN THE FURNITURE IN THE BOARD ROOM. THIS IS A FUNDAMENTAL QUESTION AND ONE MAY RECALL THAT MURTHY COMMITTEE HAD INITIALLY RECOMMENDED THAT INDEPENDENT DIRECTORS SHOULD NOT HAVE A TENURE EXCEEDING NINE YEARS ON THE BOARD OF A COMPANY.
THIS RECOMMENDATION NOW FINDS PLACE AS A NON MANDATORY PROVISION OF CLAUSE 49. INDEED OUR REGULATIONS IN CONTRAST TO UK’s REQUIREMENT DO NOT REQUIRE THE BOARD TO JUSTIFY WHY A PERSON IS CONSIDERED INDEPENDENT DIRECTOR EVEN WHEN THAT PERSON IS DIRECTOR OF THE COMPANY FOR MANY YEARS –SOMETIMES MORE THAN A DECADE. IT IS INDEED A MOOT QUESTION WHETHER LENGTH OF DIRECTORSHIP AFFECTS ONE’s INDEPENDENCE. IF YOU ARE AN INDEPENDENT DIRECTOR PLEASE CONSIDER A) IF AGENDA PAPERS WERE NOT RECEIVED WELL IN ADVANCE FOR YOU TO STUDY THEM IN SUFFICIENT DETAILS SHOULD YOU REFUSE TO ATTEND MEETINGS ? SHOULD YOU ASK CHAIRMAN TO SET A RULE THAT PLACING OF AGENDA NOTES AT THE MEETING SHOULD BE AVOIDED TO THE EXTENT POSSIBLE ? B )
HAVE YOU FAMILIARISED YOURSELF WITH THE BUSINESS MODEL OF THE COMPANY? ARE YOU AWARE WHERE COMPANY’S PLANTS ARE LOCATED AND WHAT PRODUCTS DO THEY MANUFACTURE? DO YOU KNOW WHAT ARE THE SWOT OF THE COMPANY? C ) HAVE YOU ENSURED THAT CONCERNS RAISED BY YOU AT MEETINGS ARE RECORDED IN THE MINUTES? IF NOT DID YOU TAKE UP THE ISSUE WITH THE CHAIRMAN WHEN IT FIRST OCCURRED? D)ARE YOU UP TO DATE ON YOUR KNOWLEDGE AND SKILL WITH REGARD TO COMPANY’S CG PRACTICES E ) DO YOU COME TO THE MEETINGS AFTER CAREFULLY GOING THROUGH THE AGENDA PAPERS F) DO YOU HESITATE TO ASK UNCOMFORTABLE QUESTIONS AT MEETINGS AS THAT COULD BE CONSTRUED AS BAD MANNERS MORE SO WHEN THE BOTTOM LINE IS HEALTHY?
G) DO YOU CONSIDER DIRECTORSHIP AS A POSITION OF TRUST AND RESPONSIBILITY RATHER THAN A STATUS SYMBOL ? H) ARE YOU AWARE ABOUT THE RESPONSIBILITIES AND LIABILITIES OF A DIRECTOR UNDER THE COMPANIES ACT ? ARE YOU PREPARED TO RESIGN IF THE CONCERNS RAISED BY YOU ARE NOT ADDRESSED BY THE COMPANY J) DO YOU DISCUSS ANY OF YOUR CONCERNS WITH COMPANY EXECUTIVES OR OTHER NEDs BEFORE THE MEETING ? K) IF YOU ARE AN ID FOR MANY YEARS DO YOU THINK YOUR APPROACH AND ATTITUDE HAS CHANGED SINCE CG NORMS WERE PRESCRIBED ? I ? ) ii) supports executives in their leadership of the business According to the suggested best practices under the UK code an effective non-executive director i) upholds the highest ethical standards of integrity and probity hile monitoring their conduct; iii) questions intelligently , debates constructively, challenges rigorously and decides dispassionately iv) listens sensitively to the views of others , inside and outside the board; V) gains the trust and respect of other board members; vi) promotes the highest standards of corporate governance and seeks compliance with the Code wherever possible Some of the significant points in the UK code on Board balance and independence are 1. Chairman and CEO should not be the same person 2. A CEO should not go on to become Chairman of the same company 3. Board should state its reasons for determining independence of a director 4.
Every director should receive induction on joining the Board and should regularly update his skill and knowledge 5. Board should undertake a formal and rigorous evaluation of its own performance and that of its committees and individual directors on an annual basis 6. Any term beyond six years for a non-executive director should be subject to rigorous review and should take into account need for progressive refreshing of the Board 7. Serving more than nine years could be relevant for determining independence of a non-executive director 8. All directors should have access to independent professional advice at the company’s expense where they judge it necessary to discharge their responsibilities as directors. 9.
No individual or small group of individuals should dominate Board’s decision making process 10. Directors should ensure that the concerns raised by them are recorded in the minutes 11. Board should appoint one of the independent non-executive directors as Senior Independent Director under whose leadership annual performance evaluation of Chairman should take place and who can be directly approached by shareholders for resolving any concern IT WILL BE NOTED THAT OUR REQUIREMENTS ARE MUCH LESS RIGOROUS. IN THE INDIAN CONTEXT HOW CAN ONE ENSURE THAT THE BOARD REMAINS EFFECTIVE? MY HUMBLE SUBMISSION IS THAT IT IS TRAINING AND UPGRADATION OF KNOWLEDGE OF THESE DIRECTORS WHICH CAN HAVE A MAJOR IMPACT ON BOARD ROOM CULTURE.
THE SEBI COMMITTEE UNDER THE CHAIRMANSHIP OF MR NARAYANA MURTHY HAD RECOMMENDED TRAINING OF THE DIRECTORS IN THE BUSINESS MODEL OF THE COMPANY AS WELL AS THE RISK PROFILE OF THE BUSINESS INCLUDING THE RESPONSIBILITIES OF DIRECTORS AND HOW BEST THEY CAN DISCHARGE THEM. SEBI CHAIRMAN HAS RECENTLY MENTIONED THAT A SEPARATE MEETING OF INDEPENDENT DIRECTORS PRIOR TO THE BOARD MEETING COULD BE HELD SO THAT THE IDs AMONG THEM CAN DISCUSS FREELY ANY ISSUE IF THIS BECOMES MANDATORY IT IS UNLIKELY THAT CORPORATES WOULD WELCOME IT EVEN SOME NON MANDATORY ISSUES OF CLAUSE 49 SUCH AS EVALUATION OF PERFORMANCE OF BOARD MEMBERS OR TRAINING OF DIRECTORS ARE VERY CONTENTIOUS ISSUES
AND SHOULD SEBI DECIDE TO MAKE THE NON MANDATORY ISSUES OF CLAUSE 49 MANDATORY MANY CORPORATES MAY FIND DIFFICULT TO COMPLY – THIS IS NOT ENTIRELY UNLIKELY AS NEARLY TWO YEARS HAVE ALREADY PASSED SINCE THESE NON MANDATORY ISSUES WERE INCLUDED IN CLAUSE 49 NOT CONSIDERING THE LONG PERIOD OF OVER TWO YEARS THAT SEBI HAD ALLOWED FOR INDIAN CORPORATES TO DIGEST AND ABSORB THE RECOMMENDATIONS OF MURTHY COMMITTEE MINIMUM INFORMATION TO BE PLACED BEFORE BOARD 1. ANNUAL BUDGETS AND ANY UPDATES 2. CAPITAL BUDGETS AND ANY UPDATES 3. QUARTERLY RESULTS FOR THE COMPANY AND ITS OPERATING DIVISIONS OR BUSINESS SEGMENTS 4. MINUTES OF AUDIT AND OTHER COMMITTEE MEETINGS 5. RECRUITMENT/REMUNERATION OF SENIOR OFFICERS JUST BELOW THE BOARD LEVEL INCLUDING APPTMT OR REMOVAL OF CFO AND CS 6. MATERIAL SHOW CAUSE/DEMAND/PROSECUTION NOTICES 7. FATAL/SERIOUS ACCIDENTS,MATERIAL EFFLUENT OR POLLUTION PROBLEMS 8. MATERIAL DEFAULT IN FINANCIAL OBLIGATIONS TO AND BY THE COMPANY OR SUBSTANTIAL NONPAYMENT FOR GOODS SOLD BY THE COMPANY 9.
PUBLIC OR PRODUCT LIABILITY CLAIMS OF SUBSTANTIAL NATURE INCLUDING ANY JUDGEMENT OR ORDER WHICH MAY HAVE PASSED STRICTURES ON THE CONDUCT OF THE COMPANY OR TAKEN AN ADVERSE VIEW REGARDING ANOTHER ENTERPRISE THAT CAN HAVE NEGATIVE IMPLICATIONS ON THE COMPANY 10. JOINT VENTURES AND COLLABORATION AGREEMENT 11. TRANSACTIONS INVOLVING SUBSTANTIAL PAYMENT TOWARDS GOODWILL, BRAND EQUITY,OR INTELLECTUAL PROPERTY. 12. SALE OF A MATERIAL NATURE OF INVESTMENTS, SUBSIDIARIES, ASSETS WHICH ARE NOT IN THE NORMAL COURSE OF BUSINESS 13. SIGNIFICANT LABOUR PROBLEMS AND POSSIBLE SOLUTIONS. SIGNIFICANT DEVELOPMENTS IN HR/IR FRONT INCLUDING ANY WAGE AGREEMENT, VRS ETC. 14. QUARTERLY DETAILS OF FOREIGN EXCHANGE EXPOSURES AND STEPS TAKEN TO LIMIT RISKS OF ADVERSE EXCHANGE RATE MOVEMENT 15. NON COMPLIANCE OF ANY REGULATORY OR STATUTORY OBLIGATION OR LISTING REQUIREMENTS AND SHAREHOLDER SERVICE
CEO/CFO CERTIFICATIONCERTIFY TO THE BOARD THAT- They have reviewed financial statements and cash flow statement for the year and to the best of his knowledge and belief – i) These statements do not contain any material untrue statement or omit any material fact or contain statements that might be misleading ii) These statements together present a true and fair view of the company’s affairs and are in compliance with This is a new requirement brought in by SEBI through amendment of Listing agreement and follows what SOX Act requires. By certifying to the Board in the manner prescribed the CEO and CFO are indeed shouldering responsibility about financial statements, internal control system and its effectiveness, accounting policy etc.
While this certificate is a very big comfort for the Board for submitting Directors Responsibility Statement to the shareholders as required under the Companies Act it is no doubt necessary for the CEO and CFO to take a number of steps before they can issue such wide certificate to the Board Existing accounting standards, applicable laws & regulations; iii) There are no transaction entered into by the company during the year which are fraudulent, illegal or violative of the company’s code of conduct; iv) They accept responsibility for establishing and maintaining internal control systems of the company and they have disclosed to the auditors and audit committee deficiencies in the design or operation of internal controls ,if any, of which they are aware and
Some of these steps are Reviewing the internal control system in all parts of the company to identify deficiencies, if any; Periodical review of accounting policies in the light of accounting standards; Continuous updation of knowledge of accounting standards Obtaining back-up certificates from heads of Units/Departments on the same line as the certificate to the Board- this is particularly important for item (iii) and The steps they have taken or propose to take to rectify these deficiencies; v) They have indicated to the auditors and the Audit committee – Significant changes in internal control during the year Significant changes in accounting policies during the year and that the same has been disclosed in the notes to financial statements Instances of significant fraud of which they have become aware and the involvement Item (v) relating to fraud etc.
Periodical review of internal control system of the company by an external expert for reassurance Taking actions on instances of lapses in internal controls, fraud, unethical or illegal actions of any employee –exemplary punishment in these matters could inculcate better compliance environment in the organisation reducing chances of fraud etc Therein ,if any, of the management or an employee having a significant role in the company’s internal control system. Regulations do not require bringing to the attention of the Board introduction of new accounting standards and its implications to the company. When financial statements are certified by a CEO he/she should have broad knowledge about how these statements are prepared and what are the main requirements of applicable accounting standards. It is hoped that this certification will enforce greater financial discipline in corporates.
POINTS FOR CONSIDERATION OF CEOs BEFORE GIVING THE CERTIFICATE TO THE BOARD HAVE YOU GONE THROUGH THE FINANCIAL RESULTS IN SUFFICIENT DETAILS WITH THE CFO AND THE AUDITOR AND SATISFIED YOURSELF ABOUT ITS CORRECTNESS? DO YOU BELIEVE THAT PROFIT IS A DERIVED FIGURE BEING THE AMOUNT ARRIVED AT BY DEDUCTING COSTS FROM REVENUES OR YOU DECIDE ABOUT THE PROFIT FIGURE FIRST AND FIT IN REVENUES AND EXPENSES KEEPING THE DESIRED PROFIT UNCHANGED-HOW OFTEN DO YOU ASK YOUR CFO –’HOW MUCH PROFIT SHOULD WE SHOW’ HAVE YOU TRIED TO UNDERSTAND THE IMPLICATIONS OF ACCOUNTING STANDARDS ON YOUR COMPANY’S FINANCIAL STATEMENTS? HAVE YOU CAREFULLY NOTED THE COMMENTS OF AUDIT COMMITTEE ON THE FINANCIAL STATEMENTS AND ENSURED THAT APPROPRIATE CHANGES, IF ANY, HAVE BEEN MADE IN
THE FINANCIAL STATEMENTS HAVE YOU DISCUSSED WITH THE STATUTORY AUDITORS SEPARATELY WITHOUT THE PRESENCE OF YOUR CFO ABOUT THE ANNUAL FINANCIAL STATEMENTS AND OBTAINED THEIR INDEPENDENT VIEWS ON THE FINANCIAL STATEMENTS HAVE YOU PERIODICALLY REVIEWED THE EFFECTIVENESS OF INTERNAL CONTROL SYSTEM IN THE ORGANISATION AND HAVE TAKEN STEPS TO REMOVE ANY DEFICIENCY THAT MIGHT HAVE BEEN POINTED OUT? DO YOU MAKE YOUR OWN ESTIMATE OF PROFIT BASED ON REVENUES EARNED AND TRY TO RECONCILE ANY DIFFERENCE THAT YOUR ESTIMATE MAY HAVE WITH AUDITED RESULTS ? DO YOU ENSURE THAT YOUR CFO AND SENIOR ACCOUNTANTS ARE ENCOURAGED TO CONSTANTLY UPDATE THEIR KNOWLEDGE ? ARE YOU PREPARED TO TAKE EXEMPLARY ACTIONS AGAINST EMPLOYEES AT ANY LEVEL WHO MAY HAVE BREACHED INTERNAL CONTROL SYSTEMS AND PROCEDURES OR COMMITTED FRAUD DO YOU PERSONALLY GO THROUGH ISSUES RAISED BY A WHISTLE BLOWER OR PREFER TO IGNORE THEM DO YOU TAKE ETHICAL CONCERNS RAISED BY EMPLOYEES SERIOUSLY AND GET IT INVESTIGATED BY AN INDEPENDENT AGENCY
WHAT CAN HAPPEN IF CONDITIONS OF LISTING INCLUDING CLAUSE 49 ARE NOT COMPLIED 1. DELISTING/SUSPENSION OF TRADING UNDER SECTION 23(2) OF SCRA AS AMENDED IN 2004 FAILURE TO COMPLY WITH CONDITIONS OF LISTING AGREEMENT SHALL BE PUNISHABLE WITH IMPRISONMENT UPTO TEN YEARS OR WITH FINE UPTO Rs. 25 crores OR WITH BOTH – THIS IS WITHOUT REJUDICE TO ANY AWARD OF PENALTY BY THE ADJUDICATING OFFICER 2. 3. UNDER SECTION 23E BREACH OF CONDITIONS OF LISTING SHAL ENTAIL A PENALTY NOT EXCEEDING Rs. 25 CRORES. 4. FOR A COMPANY EVERY PERSON WHO AT THE TIME OF COMMISSION OF THE OFFENCE WAS IN CHARGE OF OR RESPONSIBLE FOR CONDUCT OF BUSINESS AS WELL AS THE COMPANY WOULD BE LIABLE FOR PUNISHMENT. (Sec 24) THANK YOU