Sunday, August 31, 2014

[aaykarbhavan] source Business standard updates and Legal digest



Getting ready for the boardroom


SUDIPTO DEY

With the new Companies Act and the Securities and Exchange Board of India (Sebi)' s corporate governance code mandating greater participation of women in company boardrooms, senior women professionals as well as young women from business families have started readying themselves.

Recently, a group of 35odd women, including chief financial officers, chartered accountants, human resource heads, social sector executives, educationists, lawyers and members of business families, went through a day- long board- readiness workshop, organised by accounting and consulting firm EY.

As the motley group was being briefed about the responsibilities, liabilities and risks attached with directorship positions, one of the participants, asenior human resources executive, sought to know whether similar workshops were held for men. " If not, why do women need to prove their preparedness for boards?" she asked, drawing applause from the entire group.

At the gathering, a suggestion endorsed by many was such workshops should be open to both men and women. The moot question, a participant said, was, " Are men ready to have women on boards?" Senior marketing professional Sangeeta Talwar, who has 30 years of experience in several multinational and Indian companies and is an independent director in the boards of four firms, recalls being the only woman in the room at many board meetings. "Whether boards are ready for women or not is their problem, not mine," she says, nonchalantly.

Her mantra for women aspiring for board positions: " Have confidence in your potential and stand up for your values." Arun Duggal, chairman of Shriram Capital, head of the Federation of Indian Chambers of Commerce and Industry's centre for corporate governance and a member on the boards of several companies, has a more empathic view of the churn in boardrooms. "There is a social change taking place in boardrooms," he says.

Duggal, who has mentored 40 women for board positions in the past year, adds currently, the representation of women on the boards of India companies is dismal, barely six per cent, and this is almost equally divided between members of promoter families and independent professionals.

Perhaps, in two- three years, once the value of gender diversity in boardrooms is established, such workshops will become redundant, he says.

According to a Sebi mandate, all listed companies have to have at least one woman director on their boards by October 1. According to estimates by indianboards. com, 830 woman directorship positions in NSE- listed companies have to be filled through the next four weeks. The Companies Act, 2013, stipulates at least one woman director for companies with revenue of 300 crore and/ or paid- up share capital of 100 crore. The deadline to comply with this is April 1, 2015.

Even as corporate India gets used to gender diversity in boardrooms, it makes a lot of business sense for companies to encourage high- potential senior executives to join the boards of other firms. " It helps these executives broaden their perspectives and enhance their networks," says Geeta Mathur, chief financial officer at Helpage India, a non- profit organisation. Having come through a mentorship programme herself, Mathur has taken up board positions in three companies since January this year.

As global chief financial officer of NIIT Tech, Pratibha K Advani has, through the years, worked closely with board members. " For having a woman on the board, the criterion has to be nothing other than competence. Actually, I am against quota or reservations," she says.

Mentors say before accepting any board position, it is important to carry out due diligence of the company and know the promoters and senior management to establish acomfortable working relationship.

It helps to talk to bankers, auditors and suppliers associated with the company to get a sense of its corporate governance track record. " Just don't join a board in a hurry," says Mathur.

Many young women from business families are also taking the opportunity to join boards seriously. Meenakshi Chaudhary from Kolkatabased Vikram Solar, a photo voltaic panel manufacturer, is keen to join her husband on the board. " Though the position comes to me as wife of the managing director, I want to train myself for the role. As a woman, I am very conscious of the risks and liabilities that come with the role," says Chaudhary, who has been involved in streamlining the operations and processes in the group.

For sisters Paridhi Minda and Palak Minda of auto components maker Minda Industries, attending a workshop for women directors is a step towards preparing themselves for the board. " We aspire for a board position, but don't want to join the board just on the basis of our surname," says Paridhi. Through the past fiveseven years, the sisters have been working at the company in various capacities and across departments and this, Paridhi says, will bring about a broader perspective to the board.

"It will be difficult for any professional to match that," she adds.

As deadlines to meet the Companies Act and Sebi norms on board composition near, women aspirants prepare to play greater roles

Women on board - long road ahead

INDIA

Number of listed companies surveyed:

1,470

Total number of independent directors on board:

8,990

Number of women independent directors on board:

350

%of women on board:

4%

Vacancies to be filled:

966 Deadline: October 1, 2014

WORLD Nearly one- fifth of the world's 200 largest companies have no women directors

Women in corporate boards (%)

Norway 41 Sweden 27 France 27 Denmark 20 Germany 19

Source: Company website, McKinsey

analysis. ( All data for 2013, while Denmark reflects the situation in 2011)

Three largesteconomies — US, China and Japan — have no quotas for women in the boardroom

 


'The goal is to make women directors effective'


Is corporate India ready to have women on boards?

Yes! This is a social change and will take time. We have to move in that direction and, in time, people will be convinced they need to have gender diversity at the board level, not only to meet regulations but to do what is good for the company. To have different points of view and perspectives leads to better decision- making. Once they are convinced, the issue of having more women on boards will be addressed in five to 10 years. This will become an automatic process.

You recently managed a mentorship programme to help 40 women directorship aspirants. What are your key takeaways?

Ifound women serious and focused in learning about corporate governance. But I also find them a little hesitant, not as aggressive as they should be. It is still very early. Mere placement of women on boards isn't enough; it is important to make them effective on boards and see to it that they distinguish themselves. That is the goal of the mentorship programme.

Board placement is a complex process. Promoters and board chairmen need to develop a lot of comfort and trust about the candidate before having her ( or him) on the board.

Ihope once women join boards, they distinguish themselves. Then, we can shut the mentorship programme.

The sooner we reach that point, the happier I will be. You don't have a mentorship programme for men. So why should we have one for women? This is an interim step. What are the key concerns firsttime women directors have on stepping into boards?

Ithink their concerns start with: " Do they really want me? Or is it just because they have to check the box?" The second is: " Will I be put on a pedestal? Will I be judged in a harsher way than a male colleague? Do I have to work extraordinarily well to be considered OK?" One of the things I tell them is once you join a board, persuade the management to have not one, but at least two women directors.

How should aspiring women directors deal with concerns about whether they are fit for the job?

Those aspiring for directorship positions should be distinctive in their fields. They should have a record of superior accomplishments. Also, there are judgemental factors such as maturity, leadership qualities, the ability to be part of a team, but have individual strengths and gravitas to make a positive change.

In corporate India, many boardrooms are seen as ' old boys clubs'. Do boards need to re- orient themselves to welcome women? Iwould say it is a mixed picture. But on an average, boards are not that well prepared. They will have to be pushed a little bit, as the regulations are doing.

In time, opinions will change, as more women step into boards and begin to contribute. They will see the merit of this initiative.

When will this change come about?

Globally, this is a gradual process. In India, it will take five to 10 years. When the issue is addressed, whoever is capable — man or woman — will come on the board.

Are companies open to senior management executives taking up board positions in other organisations?

More and more progressive companies are allowing this. First, this is in the interest of companies, as it allows senior executives to develop their governance capabilities and for personal growth.

As senior executives move in other circles as board members, their contacts and learnings are beneficial to the company. It benefits both companies and senior executives.

There is a concern many board positions will be taken by women from promoter families.

It is a fact of life. In family businesses, too, the sons and nephews often join boards. Now, the daughters and nieces, who are equally capable, will step in. I hope they will compete with their brothers and cousins and demonstrate think there is a struggle ahead for women on boards, irrespective of whether they are from promoter families or not.

What are your plans for Ficci's centre for corporate governance?

Soon, we will start the second batch under Anjali Bansal's leadership of the mentorship programme for women on corporate boards to improve boards' effectiveness.

By the year- end, we

ARUN DUGGAL, chairman of Shriram Capital, who heads the Federation of Indian Chambers of Commerce and Industry ( Ficci)' s centre for corporate governance, has been closely involved with a mentoring initiative to get more women on corporate boards. Duggal, an ex- banker, tells Sudipto Dey it will take five to 10 years for India Inc to see value from gender diversity in its boards and business. Edited excerpts:

ARUN DUGGAL

Chairman, Shriram Capital

Related party transactions – scepticism all around


A related party is a person who is related to the company. If one party has the ability to control the other party or exercise significant influence over the other party, directly or indirectly, in making financial and/ or operating decisions, those two parties are related to each other. For example, all group entities are related to each other.

Except in the UK, the US and Australia, company groups and concentrated ownership are normal around the world. India is no exception.

Under such conditions, related party transactions (RPTs) are mainly with the controlling shareholders and/ or with members of a company group. One of the important themes in corporate governance regulations is to protect minority shareholders from abusive RPTs.

RPTs become abusive when they are used as an instrument for self- enriching by the controlling shareholder. Although regulators and minority shareholders view RPTs with scepticism, regulators do not ban RPTs because those are economically beneficial to group companies. A satisfactory solution to the problem of abusive RPTs is still elusive. Different jurisdictions have responded to the issue differently.

In most jurisdictions the board of directors and independent directors have been made responsible to protect minority shareholders from abusive RPTs.

In some jurisdictions, some involvement of shareholders is also introduced.

Companies Act 2013 and Securities and Exchange Board of India ( Sebi) corporate governance code ( clause 49 of the listing agreement), which will be implemented from October 1, 2014, have incorporated certain new provisions to introduce some of the practices that are available in other jurisdictions. Three important components of regulations that govern RPTs are definition of related party, approval of related party transactions by the board or audit committee and in some cases, by shareholders and disclosure of RPTs. Sebi code of corporate governance (clause 49 of the listing agreement), section 188 of the Companies Act 2013 and accounting standard 18 ( AS 18) deal with RPTs. AS 18 requires disclosure of RPTs.

Both Sebi code and section 188 of the Companies Act 2013 specify the individuals and other entities, which are considered related parties. The definitions are quite broad. AS 18 also identifies related parties for the purpose of disclosure of RPTs in financial statements.

Sebi code, which is applicable to listed companies, requires audit committee to approve all RPTs. The Companies Act 2013 stipulates that Board's approval is required for RPTs that are not entered in the ordinary course of business or on an arm's length basis. It makes the audit committee responsible for approving RPTs.

Sebi code requires every listed company to formulate a policy on dealing with RPTs and to disclose the same on its website and also in the annual report. It is advisable that companies that are not covered by the Sebi code should also develop a policy dealing with RPTs to make the job of the audit committee little less onerous.

Formulation of the policy is tricky. While the duty of loyalty of the Board is towards shareholders of the company, in reality, decisions related to RPTs are taken from the group perspective. In some jurisdictions, regulators take this reality into consideration while evaluating the policy dealing with RPTs. RPTs that are beneficial to the group might have a negative impact on a particular entity for a short- term but in the longterm, RPTs benefit all the group entities unless they are used for self- enriching, for example, for tunneling. Therefore, the primary task of independent directors and the audit committee is to protect minority shareholders from those RPTs that are vehicles for perpetrating fraud on them. They should evaluate RPTs based on the group RPT policy and keeping in view the long- term benefits to the company.

A particular company's policy should align with the group policy.

The policy should be discussed with large shareholders before finalisation. Independent directors should shed scepticism and examine each RPT with an open mind.

However, at this point, there are two significant uncertainties.

First, it is difficult to guess how the regulators and judiciary will interpret the ' duty of loyalty'.

Second, it is difficult to assess whether the disclosure of a transparent group policy dealing with RPTs will enhance scepticism and how it will impact share prices of group companies. These make the task of independent directors onerous.

Although the Sebi code and the Companies Act define material RPTs differently, both require that all material RPTs shall require approval of the shareholders through special resolution and the related parties shall abstain from voting on such resolutions. This practice prevails in some other jurisdictions.

However, the problem with this practice is that sceptical minority shareholders might block a non- abusive RPT without fully appreciating the group policy.

In the new regime, the controlling shareholder has to build a strong relationship of trust with minority shareholders.

It is also important that proxy advisory firms take a rational view of RPT policy of different business groups. Scepticism at this point can only be counterproductive.

Affiliations: Professor and Head, School of Corporate Governance and Public Policy, Indian Institute of Corporate Affairs; Advisor ( Advanced Studies), Institute of Cost Accountants of India; Chairman, Riverside Management Academy Private Limited. Email: asish. bhattacharyya@ gmail. com

In the new regime, the controlling shareholder has to build a strong relationship of trust with minority shareholders

ACCOUNTANCY

ASISH K BHATTACHARYYA

 

BRIEF CASEN [1] M J ANTONY
A weekly selection of key court orders


Customs relief for hospital equipment

The Supreme Court has clarified that a diagnostic centre, clinic or maternity home functioning in the premises of a hospital is also eligible for claiming exemption in customs duty for import of medical equipment provided it fulfils all the conditions envisaged in a 1988 notification. The conditions include free treatment to 40 per cent of outpatients and in- house treatment to those whose income is below 500 a month. The medical equipment importer has to get a certificate from the Directorate General of Health Services ( DGHS) to claim exemption. There was some doubt about the position of diagnostic centre, because of a judgment in the Mediwell Hospital case. In that 1997 case, a two- judge bench had stated that a diagnostic centre " run by aprivate individual purely on commercial basis" may not be entitled to the exemption. However, that view was doubted by a later set of judges who referred the question to a larger bench. A three- judge bench now, in the case, Bharat Diagnostic Centre vs Commissioner of Customs, clarified that any institution, centre, trust, society, association, laboratory, clinic or maternity home which renders medical, surgical or diagnostic treatment will get the benefit of the customs rule provided they meet the conditions of treatment of the poor. In this case, the diagnostic centre attached to a cancer hospital was not given the necessary certificate to import equipment by DGHS. Therefore, the customs authorities demanded duty. That was challenged in the Supreme Court. It dismissed the petition.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 'Stop payment' as bad as cheque dishonour

high court had quashed a criminal complaint against a firm maintaining that an offence was committed only when a cheque was returned due to ' insufficiency of funds'. In this case, the high court said, the cheque payment was stopped by the drawer company as the payee firm had failed to discharge its business obligations. The Supreme Court set aside that high court view stating that whether the payee had failed to discharge its obligations is a matter of evidence. The high court could not exercise its discretionary power and decide the question of fact on its own; it should be left to the trial judge, the Supreme Court said.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> AI canteen workers are not employees

The Supreme Court last week dismissed the appeal of those who work in the Air India canteen on casual/ temporary basis claiming that they were employees of the airline and therefore should be regularised.

The industrial tribunal had held that they were employees of the airline . On airline's appeal, the Delhi High Court quashed the tribunal's decision, leading to the workers' appeal. The Supreme Court held that the responsibility to run the statutory canteen was that of Hotel Corporation of India ( HCI), the airline's subsidiary and Chefair Flight Catering, an HCI unit. " The mere fact that Air India has certain degree of control over HCI does not mean that the employees working in the canteen are Air India's employees," the judgment explained. Air India exercises control in the nature of supervision, which is only to ensure standards in the canteen. That would not make the workers direct employees of the airline entitling to regularisation, the court said.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Leniency towards peasant landowners

When the lands of peasants are compulsorily acquired, delay in moving the court against it should be condoned, the Supreme Court stated in its judgment, Dhiraj Singh vs state of Haryana. In this case, the district judge awarded 101 per sq yard while acquiring 132 acres. A number of landowners appealed to the Punjab and Haryana High Court against the rate. It enhanced the rate to 200. Some peasants were not aware of the higher rate. They moved the court late, beyond the time limit fixed by law. The high court dismissed their petitions on the ground of delay, leading to the appeal. The Supreme Court asked the government to pay the higher rate to the latecomers, too. It observed that villagers are by and large illiterate and not conversant with the intricacies of law. Courts shall adopt a liberal attitude in such matters, the judgment said.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Hospital to pay 20 lakh for negligence

The Supreme Court steeply enhanced compensation in a medical negligence case from 5 lakh to 20 lakh in a case in which a two- year- old girl child's right arm had to be amputated. In this case, Alfred Benedict vs Manipal Hospital, the parents had taken the baby to a paediatrician for common cold and cough. She was admitted and diagnosed for pneumonia as well. She was given IV fluid, allegedly into the artery instead of vein, blocking blood supply as discovered in an angiogram. She developed gangrene leading to amputation. The Karnataka state consumer commission awarded 5 lakh in damages. The National Commission ordered an additional 10,000. On further appeal by the parents, the Supreme Court stated that the amount awarded by forums below was low. She was now 13 years and her education and marriage prospects will suffer. Moreover, she has to incur battery charge of 80,000 annually.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Wrong computation of damages

The Supreme Court has set aside the Madras High Court judgment reducing compensation in a road accident death from 37 lakh to 16 lakh. The high court wrongly computed the loss to the family and ignored the principles laid down by the Supreme Court in its earlier decisions, the judgment stated in the case, Sarala Devi vs Royal Sundaram Alliance Insurance Co. A person earning 6 lakh a year was fatally hit by a vehicle when he was riding a bike. The insurer rejected the demand for compensation by the widow, her two daughters and the bed- ridden mother on the ground that the deceased person was negligent while riding the two- wheeler. They moved the motor accident claims tribunal, which awarded them 37 lakh. However, the high court reduced the amount on the appeal of the insurance company. It deducted one- third of his income for personal expenses, while only one- fourth was allowed according to earlier judgments. Further, the high court awarded only 10,000 for loss of consortium, love and affection instead of the standard 1 lakh. The Supreme Court pointed out several other errors and restored the amount fixed by the tribunal.

 







 


 


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A.Rengarajan

Company  Secretary

Chennai

93810  11200

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Posted by: CS A Rengarajan <csarengarajan@gmail.com>


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