1

PROJECT REPORT

ON

ETHICS IN CORPORATE GOVERNANCE

MASTERS OF BUSINESS ADMINISTRATION

(2008-2010)

Submitted To: Submitted By:

Mrs. SHAVINA GOYAL HARDEEP SHARMA

Lect.(SMS) MBA-II(SEM-III)

Roll No. 3832 (C)

SCHOOL OF MANAGEMENT STUDIES

P U N J A B I U N I V E R S I T Y P A T I A L A

2

ACKNOWLEDGEMENTS

I would like to express my thanks to the School of management studies which gave me such a beautiful opportunity to study on the topic ETHICS IN CORPORATE GOVRNANCE.

On the submission of my project report I would like to express my sincere gratitude to Mrs. Shavina Goyal (Lect. SMS, Punjabi University, Patiala) for helping me and taking active interest throughout the project. She was always available, correcting mistakes, intelligently directing me to proper sources of information advising to aim for simplicity, brevity, clarity and accuracy. I am indeed thankful to her for her valuable guidance. I would also like to express my thanks to my friends who helped me on every stage. Without their help the project could not be completed.

3

TABLE OF CONTENTS PAGE NO

ACKNOWLEDGEMENTS 1

OVERVIEW 4

EXECUTIVE SUMMARY 6

CHAPTER-1

INTRODUCTION 8

CHAPTER-2 ETHICS IN CORPORATE GOVERNANCE 19

CHAPTER-3

SEBI AND CORPORATE

GOVERNANCE COMMITTEE 24

CHAPTER-4

ARTICLES ON CORPORATE

GOVERNANCE AND ETHICS 34

CHAPTER-5

BIBLIOGRAPHY 39

4

OVERVIEW

In today’s society, corporate governance is one of the most talked about topics in

business. Most academics, business professionals and lay observers would agree that

it is defined as the general set of customs, regulations, policies and laws that

determine to achieve certain targets for which a firm should be run. It is clear that

corporate governance exists at a complex intersection of law, morality and economic

efficiency, considering that issues of executive compensation, financial scandals and

shareholder activism are all tied up with it. Corporate governance also includes the

relationships among the many stakeholders involved and the goals for which the

corporation is governed. Corporate governance raises some of the key issues like how

much focus should be given to the interests of directors, shareholders, employees and

other stakeholders and how these interests can be expressed, aligned, and reconciled.

Other stakeholders include suppliers, customers, banks and other lenders, regulators,

the environment, and the community. So, corporate governance examines how

corporations are governed and to whom they should be responsible. It is a system of

structuring, operating and controlling a company with a view to achieving long-term

strategic goals to satisfy stakeholders and complying with the legal and regulatory

requirements, apart from meeting environmental and local community needs. An

important aspect of corporate governance is to ensure the accountability of certain

individuals in an organization.

Important issues are the role of the board of directors, re aggregation of shareholder

power due to concentrated institutional holdings and effects of legislation on corporate

governance. In corporations, the shareholder delegates decision rights to the manager

to act in the principal’s best interests. This separation of ownership from control

implies a loss of effective control by shareholders over managerial decisions. Partly, as

a result of this separation between the two parties, a system of corporate governance

controls is implemented to assist in aligning the incentives of managers with those of

shareholders. The board of directors often plays a key role in corporate governance. It

is their responsibility to endorse the organization’s strategy, develop directional policy,

appoint, supervise and remunerate senior executives, and to ensure accountability of

5

the organization to its owners and authorities. Similarly, the company secretary,

known as a corporate secretary in the US and often referred to as a chartered

secretary if qualified by the Institute of Chartered Secretaries and Administrators

(ICSA), is a high ranking professional who is trained to uphold the highest standards

of corporate governance, effective operations, compliance and administration.

All parties to corporate governance have an interest, whether direct or indirect, in the

effective performance of the organization. Directors, workers and management receive

salaries, benefits and reputation, while shareholders receive capital return, customers

receive goods and services and suppliers receive compensation for their goods or

services. In return, these individuals provide value in the form of natural, human,

social and other forms of capital.Importance is how directors and management develop

a model of governance that aligns the values of the corporate participants and then

evaluate the model periodically for its effectiveness.

6

Executive Summary

Corporate governance is the set of policies, people, laws, regulations and

reporting of corporate business entities. It is a primary focus of regulators in

today’s world. Sound corporate governance brings prosperity to the masses in

the economy by raising investor confidence and proper management of the

investments. Good corporate governance is vital for organizations to survive.

The major components of corporate government are; the Board of Directors, the

Executive Offices, Regulators, Reports, Upper Management, and Company

Policies. The flow of corporate governance comes from the top through the

board, it is moulded into the organization through the CEO and reflected in the

reporting process with transparency. The over all flow is influenced by external

stakeholders. Corporate governance in India is still at the developing stage. The

government has formed an institute of corporate governance which promotes

good corporate practices through various means. Cases of poor corporate

governance can be found around the world. They are mostly connected to

fraudulent practices. The other major malpractices were; irregularities in

accounts, non-compliance with law, nepotism, and exploitation of minority

share holders. The term corporate governance refers to all the activities,

policies, personnel, regulations and reporting which is related to the control of

the company’s actions. Corporate governance is done through all those

individuals who have a controlling influence in a corporation such as creditors

or stock holders. It focuses on reducing principal-agent problems and

undermines stakeholders view in company operations. Corporate governance is

at the centre of attention in today’s business world. This is greatly due to the

large number of stakeholders whose wealth and interests are at stake in the

business. What has further highlighted corporate governance today has been

the increasing influence and awareness of these stake holders. With out sound

corporate governance a business cannot survive. Corporate governance is not

just related to core business activities. Good corporate governance caters to

7

various other issues present in the society. Corporations today have developed

a concept of corporate social responsibility. The major components of corporate

governance comprise of company policies, Board of Directors, the role of the

CEO, creditors, Stockholders, regulators, reporting and maintaining overall

transparency about the business operations Corporate governance can be both

good and bad. The Securities and Exchange Commission try’s to ensure that

sound corporate governance is maintained in all businesses by regulating

corporations. Further business expansion is also dependent on sound

corporate governance.

8

CHAPTER-1

INTRODUCTION

9

INTRODUCTION

WHAT IS ETHICS Ethics refers to a system of moral principles a sense of right and wrong, and

goodness and badness of actions and the motives and consequences of these

actions. As applied to business firms, ethics is the study of good and evils,

right and wrong and just and unjust actions of businessmen. Ethics is a body

of principles or standards of human conduct that govern the behavior of

individuals and groups. Ethics arise not simply from man's creation but from

human nature itself making it a natural body of laws from which man's laws

follow. Ethics is a branch of philosophy and is considered a normative science

because it is concerned with the norms of human conduct, as distinguished

from formal sciences such as mathematics and logic, physical sciences such as

chemistry and physics, and empirical sciences such as economics and

psychology.

10

Ethics is seen as an individual’s own personal attitude and a believe

concerning what is right or wrong, good or bad. It is important to note that

ethics reside within individuals and that organization doesn’t have ethics.

People have ethics. Consequently, its definition and understanding varies from

person to person. These are not absolute, but are relative. Ethical behaviors

are in the eye of beholder. What is right or wrong is a personal individual

matter, but is still influenced by socially accepted norms. Right, and proper

and fair are the ethical terms. It expresses a judgment about behavior towards

people they felt to be just. Ethics are useful tools for sorting out the good and

bad components within complex human interactions. Business ethics does not

differ from generally accepted norms of good or bad practices. If dishonesty is

considers to be unethical and immoral in the society, then any business man

who is dishonest his or her employees, customer’s shareholders, or competitors

is unethical and immoral person. Businessmen should not try to evolve their

own principles to justify ‘what is right and what is wrong’. Ethics refers to

accepted principles of right or wrong that govern the conduct of a person, the

members of a profession, or the actions of an organization. Business Ethics are

the accepted principles of right or wrong governing the conduct of business

people. Ethical decisions are those that are in accordance with those accepted

principles of right and wrong, whereas and unethical decision in one that

violates accepted principles. This is not as straightforward as it sounds

Managers may face ethical dilemmas, which are situations where there is no

agreement over exactly what the accepted principles of right and wrong are, or

where none of the available alternatives seems ethically acceptable

THE MAJOR PRINCIPLES OF BUSINESS ETHICS

No discrimination should be done on the basis of caste ,color , and

religion,

The polices should be fair and transparent

11

Proper provision of safety should be provided by the company to the

employees.

There should be proper honesty, loyalty, and integrity in the employees.

The company’s resources should not be utilized by the employees for

their personal usage.

Company should provide better environment condition Information about

employee’s personal lives, health, and work evaluations should be kept

confidential.

Regular measurement of employee satisfaction should by company.

To neither give nor take any illegal payment, remuneration, gift,

donation, or comparable, benefits to obtain business or favors.

To comply with all regulations regarding preservation of the environment.

Employee should report to management any actual or possible violation

of code or an event that could affect the business or reputation of the

employee’s company.

CORPORATE GOVERNANCE Good corporate governance is key to the integrity of corporations, financial

institutions and markets, and central to the health of our economies and their

stability. Corporate governance has become talk of the day in the corporate

world, especially when there is financial crisis originated in the U.S.A. and

some other countries due to poor governance of financial institutions.

Therefore, now days corporate governance which is a mechanism to mitigate

the clash of interests among the stakeholders of a corporation, has achieved

further focus from regulatory groups. Corporate governance is concerned with

the resolution of collective action problems among dispersed investors and the

reconciliation of conflicts of interest between various corporate claimholders.

Corporate governance refers to the broad range of policies and practices that

stockholders, executive managers, and boards of directors use to (1) manage

themselves and (2) fulfill their responsibilities to investors and other

12

stakeholders. Over the past decade, corporate governance has been the subject

of increasing stakeholder attention and scrutiny. These concerns have given

rise to a powerful shareholder movement. Shareholder activists, composed

primarily of large multi-billion-dollar pension funds, religious and socially

responsible investment groups, and other institutional investors, are now using

a variety of vehicles to influence board behavior, including creating corporate

governance standards of excellence and filing shareholder resolutions. These

investors are concerned with such topics as board diversity, independence,

compensation, and accountability, as well as a broad range of social issues,

e.g. employment ethics practices, environmental policies, and community

involvement.

The tug of war between individual freedom and institutional power is a

continuing theme of history. Early on, the focus was on the church; more

recently, it is was on the civil state. Today, the debate is about making

corporate power compatible with the needs of a democratic society. The modern

corporation has not only created untold wealth and given individuals the

opportunity to express their genius and develop their talents but also has

imposed costs on individuals and society. How to encourage the liberation of

13

individual energy without inflicting unacceptable costs on individuals and

society, therefore, has emerged as a key challenge.

Corporate governance lies at the heart of this challenge. It deals with the

systems, rules, and processes by which corporate activity is directed. Narrow

definitions focus on the relationships between corporate managers, a

company’s board of directors, and its shareholders. Broader descriptions

encompass the relationship of the corporation to all of its stakeholders and

society, and cover the sets of laws, regulations, listing rules, and voluntary

private-sector practices that enable corporations to attract capital, perform

efficiently, generate profit, and meet both legal obligations and general societal

expectations. The wide variety of definitions and descriptions that have been

advanced over the years also reflect their origin: lawyers tend to focus on the

contractual and fiduciary aspects of the governance function; finance scholars

and economists think about decision-making objectives, the potential for

conflict of interest, and the alignment of incentives, while management

consultants tend to adopt a more task-oriented or behavioral perspective.

Complicating matters, different definitions also reflect two fundamentally

different views about a corporation’s purpose and responsibilities. Often

referred to as the “shareholder versus stakeholder” perspectives, they define a

debate about whether managers should run a corporation primarily or solely in

the interests of its legal owners—the shareholders (the shareholder

perspective)—or whether they should actively concern themselves with the

needs of other constituencies (the stakeholder perspective). This question is

answered differently in different parts of the world. In Continental Europe and

Asia, for example, managers and boards are expected to concern themselves

with the interests of employees and the other stakeholders, such as suppliers,

creditors, tax authorities, and the communities in which they operate.

Reflecting this perspective, the Centre of European Policy Studies (CEPS)

defines corporate governance as “the whole system of rights, processes and

controls established internally and externally over the management of a

business entity with the objective of protecting the interests of all stakeholders.

14

In contrast, the Anglo-American approach to corporate governance emphasizes

the primacy of ownership and property rights and is primarily focused on

creating “shareholder” value. In this view, employees, suppliers, and other

creditors have rights in the form of contractual claims on the company, but as

owners with property rights, shareholders come first:

Corporate governance is the system by which companies are directed and

controlled. Boards of directors are responsible for the governance of their

companies. The shareholders’ role in governance is to appoint the directors and

the auditors and to satisfy themselves that an appropriate governance

structure is in place.

Perhaps the broadest, and most neutral, definition is provided by the

Organization for Economic Cooperation and Development (OECD), an

international organization that brings together the governments of countries

committed to democracy and the market economy to support sustainable

economic growth, boost employment, raise living standards, maintain financial

stability, assist other countries’ economic development, and contribute to

growth in world trade:

Corporate governance is the system by which business corporations are

directed and controlled. The corporate governance structure specifies the

distribution of rights and responsibilities among different participants in the

corporation, such as, the board, managers, shareholders and other

stakeholders, and spells out the rules and procedures for making decisions on

corporate affairs. By doing this, it also provides the structure through which

the company objectives are set, and the means of attaining those objectives

and monitoring performance In today’s society, corporate governance is one of

the most talked about topics in business. Most academics, business

professionals and lay observers would agree that it is defined as the general set

of customs, regulations, policies and laws that determine to achieve certain

targets for which a firm should be run. It is clear that corporate governance

exists at a complex intersection of law, morality and economic efficiency,

considering that issues of executive compensation, financial scandals and

15

shareholder activism are all tied up with it. Corporate governance also includes

the relationships among the many stakeholders involved and the goals for

which the corporation is governed. Corporate governance raises some of the

key issues like how much focus should be given to the interests of directors,

shareholders, employees and other stakeholders and how these interests can

be expressed, aligned, and reconciled. Other stakeholders include suppliers,

customers, banks and other lenders, regulators, the environment, and the

community. So, corporate governance examines how corporations are governed

and to whom they should be responsible. It is a system of structuring,

operating and controlling a company with a view to achieving long-term

strategic goals to satisfy stakeholders and complying with the legal and

regulatory requirements, apart from meeting environmental and local

community needs. An important aspect of corporate governance is to ensure

the accountability of certain individuals in an organization. The important

issues are the role of the board of directors, re aggregation of shareholder

power due to concentrated institutional holdings and effects of legislation on

corporate governance. In corporations, the shareholder delegates decision

rights to the manager to act in the principal’s best interests. This separation of

ownership from control implies a loss of effective control by shareholders over

managerial decisions. Partly, as a result of this separation between the two

parties, a system of corporate governance controls is implemented to assist in

aligning the incentives of managers with those of shareholders. The board of

directors often plays a key role in corporate governance. It is their

responsibility to endorse the organization’s strategy, develop directional policy,

appoint, supervise and remunerate senior executives, and to ensure

accountability of the organization to its owners and authorities. Similarly, the

company secretary, known as a corporate secretary in the US and often

referred to as a chartered secretary if qualified by the Institute of Chartered

Secretaries and Administrators (ICSA), is a high ranking professional who is

trained to uphold the highest standards of corporate governance, effective

operations, compliance and administration.

16

All parties to corporate governance have an interest, whether direct or indirect,

in the effective performance of the organization. Directors, workers and

management receive salaries, benefits and reputation, while shareholders

receive capital return, customers receive goods and services and suppliers

receive compensation for their goods or services. In return, these individuals

provide value in the form of natural, human, social and other forms of capital.

Of importance is how directors and management develop a model of

governance that aligns the values of the corporate participants and then

evaluate the model periodically for its effectiveness.

Components of corporate governance

Corporate governance is not just related to human elements. As mentioned

earlier, it comprises of all the policies, practices, activities, individuals and

stakeholders of the business. The Major components of corporate governance

could be stated as:

· The Board of Directors

· The Upper Management

· The Stock holders

· The Regulators and other Stakeholder institutions

· Reporting

· Company Policy

· Company Activity

· The CEO, Company Secretary, and CFO

· Meetings

17

Why Good corporate governance is a question of ethics?

The phrases "Socially Responsible", "Corporate 'Social Responsibility", and "The

Social Responsibility of Business" are at times used as though they were

synonymous with business ethics. But this can be misleading if it is taken to

imply that business ethics deals exclusively with the relationships between

business organizations and what have come to be called their" external

constituencies such as customers, suppliers, government agency , community

groups and even host countries. For while these relationship define a large and

very important sub-domain of business ethics, they do not exhaust the field,

there remain equally important "internal constituencies" (employees,

stockholders, boards of directors and senior executives) as well as ethical

issues that do not lend them- selves to "constituency" or stakeholder analysis.

Thus, business ethics is a more embracing field of inquiry than corporate social

responsibility, even though it includes the latter. Questions, like moral

responsibilities, obligations and virtues in business decision making also form

part of ethics e.g. choices and character of persons, the policies and cultures of

organization.

The subject of business ethics, therefore, is multi-leveled. At the level of the

individual ("the ethics and values of business person"), attention is paid to the

values by which self-interest and other motives are balanced by concern for

fairness, properness, right / wrong and the common good, both within and

outside the company. At the level of the organization ("the ethics of a business

enterprise"), the focus is on the spoken or unspoken group consciousness that

every company has either by design or by default, as it pursues its economic

objectives. Finally, at the level of society itself (" the ethics of business system"),

business ethics examines the pattern of cultural, political and economic forces

that drive individuals and firm's values that define democratic capitalism in a

global environment.

18

The ethics of Corporate Governance is therefore; the determination of what is

"right", "fair", "proper" and "just" in decisions and actions that affect other

people go for beyond simple questions of bribery, theft and collusion. It focus

on what our relationships are and ought to be - with our employees, our

customers, our stock holders, our creditors, our suppliers, our distributors,

our neighbors and other members of the community / society in which we

operate.

19

CHAPTER-2 ETHICS IN CORPORATE GOVERNANCE

20

ETHICS IN CORPORATE GOVERNANCE

Corporate governance is about ethical conduct in business. Ethics is concerned

with the code of values and principles that enables a person to choose between

right and wrong, and therefore, select from alternative courses of action.

Further, ethical dilemmas arise from conflicting interests of the parties

involved. In this regard, managers make decisions based on a set of principles

influenced by the values, context and culture of the organization. Ethical

leadership is good for business as the organization is seen to conduct its

business in line with the expectations of all stakeholders. What constitutes

good Corporate Governance will evolve with the changing circumstances of a

company and must be tailored to meet these circumstances. There is therefore

no one single model of Corporate Governance. I do feel it is necessary to trace

the evolution of the concept for better comprehension. Economic and

Commercial activities the world over grew manifold after the Bretton Woods

and formation of World Bank and the International Monetary Fund. Cross

border trades and exchange rate mechanisms resulted in specialization within

financial market. Several players in the field, International commerce and

settlements grew manifold giving rise to standards and benchmarks. ISO 9000

and International best accounting practices are the culmination of the

experience of the stakeholders in different fields of economics and commerce,

the policymakers included. As I see it, Corporate Governance is nothing but the

moral or ethical or value framework under which corporate decisions are taken.

It is quite possible that in the effort at arriving the best possible financial

results or business results there could be attempts at doing things which are

verging on the illegal or even illegal. There is also the possibility of grey areas

where an act is not illegal but considered unethical. These raise moral issues.

In fact, the very definition of corporate governance stems from its organic link

with the entire gamut of activities having a direct or indirect influence on the

financial health of corporate entities. The Cadbury Report (1992) simply

21

describes Corporate Governance as ‘the system by which companies are

directed and controlled’. So far as corporate governance is concerned, it is

financial integrity that assumes tremendous importance. This would mean that

the directors and all concerned should be open and straight/forthright about

issues where there is conflict of interest involved in financial decision making.

When it comes to even the purchase/procurement procedures, there is need for

greater transparency.

The Corporate system and diverse ownership did contribute in a substantial

measure to prosperity, employment potential and living standards of the

subjects across the globe. Notwithstanding the contributions, the failures too

caused concerns among the regulators. Existing laws, rules and controls did

not adequately address the issues related to the failures caused by deficient or

intentional fraudulent managements. In USA, the Sarbanes-Oxley Act 2002

was passed to address the issues associated with corporate failures, achieve

quality governance and restoring ‘investor’ confidence. The Securities and

Exchange Commission of USA initiated action against multinational accounting

firms for failure to detect blatant violation of accounting standards, and

penalties running to several million dollars were recovered, from certain

multinational consultancy firms.

Why Corporate Governance? a) The liberalization and de-regulation world over gave greater freedom in

management. This would imply greater responsibilities.

b) The players in the field are many. Competition brings in its wake weakness

in standards of reporting and accountability.

c) Market conditions are increasingly becoming complex in the light of global

developments like WTO, removal of barriers/reduction in duties.

22

d) The failure of corporate due to lack of transparency and disclosures and

instances of falsification of accounts/embezzlement and the effect of such

undesirable practices in other companies.

It is the increasing role of foreign institutional investors in emerging economies

that has made the concept of corporate governance a relevant issue today. In

fact, the expression was hardly in the public domain. In the increasingly close

interaction of the economies of different countries lies the process of

globalization. This involves the rapid migration of four elements across national

borders. These are (i) Physical capital in terms of plant and machinery; (ii)

Financial capital; (iii) Technology; and (iv) Labor.

The increasing concern of the foreign investors is that the enterprise in which

they invest should not only be effectively managed but should also observe the

principles of corporate governance. In other words, the enterprises will not do

anything illegal or unethical. This need for re-assurance is felt by the FIIs due

to the fact that there have been cases of dramatic collapse of enterprises which

were apparently doing well but which were not observing the principles of

corporate governance.

In India corruption is an all embracing phenomenon. In this, if the respective

players in the field were to adopt healthy principles of good corporate

governance and avoid corruption in their transactions, India could really take a

step forward to becoming a less corrupt country and improving its rank in the

Corruption Perception Index listed by the Transparency International.

Studies in India and abroad show that markets and investors take notice of

well managed companies, respond positively to them and reward such

companies with higher valuations. A common feature is that they have systems

in place, which allow sufficient freedom to Board and Management to take

decisions towards progress and to innovate, while remaining within the

framework of effective accountability. In other words they have a good system

23

of corporate governance. Strong corporate governance is indispensable to

resilient and vibrant capital markets and is an important instrument of

investor protection.

24

CHAPTER-3

SEBI AND CORPORATE GOVERNANCE COMMITEE

25

SEBI AND CORPORATE GOVERNANCE COMMITEE

Securities and Exchange Board of India constituted a Committee on Corporate

Governance under the Chairmanship of Mr. Kumar Mangalam Birla. The

committee observed that there are companies, which have set high standards

of governance while there are many more whose practices are matters of

concern. There is increasing concern about standards of financial reporting

and accountability especially after losses are suffered by investors and leaders

in the recent past, which could have been avoided with better and more

transparent reporting practices. Companies raise capital from market and

investors suffered due to unscrupulous managements that performed much

worse than past reported figures. Bad governance was also exemplified by

allotment of promoters’ share at preferential prices disproportionate to market

value, affecting minority holders’ interests. Many corporate did not pay heed to

investors’ grievances. While there were enough rules and regulations to take

care of grievances, yet the inadequate implementation and the absence of

severe penalty, left much to be desired.

The Kumar Mangalam Committee made mandatory and non-mandatory

recommendations. Based on the recommendations of this Committee, a new

clause 49 was incorporated in the Stock Exchange Listing

Agreements (“Listing Agreements”). The important aspects, in brief, are:

(i) Board of Directors are accountable to shareholders.

(ii) Board controls are laid down code of conduct and accountable to

shareholders for creating, protecting and enhancing wealth and resources of

the Company reporting promptly in transparent manner while not involving in

day to day management.

26

(iii) Classification of non-executive directors into those who are independent

and those who are not.

(iv) Independent directors not to have material or pecuniary relations with the

Company/subsidiaries and if had, to disclose in Annual Report.

(v) Laying emphasis on caliber of non-executive directors especially

independent directors.

(vi) Sufficient compensation package to attract talented non-executive

directors.

(vii) Optimum combination of not less than 50% of non-executive directors and

of which companies with non-executive Chairman to have at least one third of

independent directors and under executive Chairman at least one half of

independent directors.

(viii) Nominee directors to be treated on par with any other director,

(ix) Qualified independent Audit committee to be setup with minimum of three

all being non-executive directors with one having financial and accounting

knowledge.

(x) Corporate governance report to be part of Annual Report and disclosure on

directors’ remuneration etc., to be included.

Naresh Chandra Committee recommendations relate to the Auditor-Company

relationship and the role of Auditors. Report of the SEBI Committee on

Corporate Governance recommended that the mandatory recommendations on

matters of disclosure of contingent liabilities, CEO/CFO Certification, definition

of Independent Director, independence of Audit Committee and independent

director exemptions in the report of the Naresh Chandra Committee, relating to

corporate governance, be implemented by SEBI.

27

Narayana Murthy Committee recommendations include role of Audit

Committee, Related party transactions, Risk management, compensation to

Non- Executive Directors, Whistle Blower Policy, Affairs of Subsidiary

Companies, Analyst Reports and other non-mandatory recommendations.

When it comes to corporate governance, I think we will have to look at the

hardware as well as the software aspect. So far as the software aspect is

concerned, I would suggest, it depends on the values cherished and practiced

by the members of the Board of Directors as well as the management of an

organization. It is always possible to mouth very high principles but act in a

very lowly manner. If there is going to be divergence between practice and

precept, then we are not going to achieve good corporate governance. This is

the first point to be realized.

The most important aspect for observing corporate governance is the top

management, particularly the board of directors and the senior level

management of an enterprise - walking their talk. It is by walking their talk

that the top management can earn credibility. This also has a direct bearing on

the morale of an organization.

When it comes to the hardware aspect of corporate governance, we go into the

issue of a code, which becomes a reference point for behavior. But the sad

faction our country is that even though there is a lot of talk about corporate

governance, when it comes to reality, nothing much happens.

With the SEBI trying to bring some discipline in the stock market especially in

terms of greater transparency and disclosure norms, corporate governance in

the Indian context at least seems to focus primarily and rightly on the issue of

transparency. It is lack of transparency that leads to corrupt or illegal behavior.

If corporate governance is concerned with better ethics and principles, it is only

natural that the focus should be on transparency. But how is this

transparency to be achieved? One method of course is the code. Another would

be the regulatory authorities like SEBI, RBI etc. laying down guidelines so that

28

a certain degree of transparency is automatically ensured. Another legal

approach to achieve better corporate governance may be to look at the whole

issue of bringing the corporate sector under the discipline of debt and equity.

Perhaps amendment of the Companies Act and bringing in this discipline will

also help in automatically ensuring better ethics and corporate governance.

Perhaps the most important challenge we face towards better corporate

governance is the mindset of the people and the organizational culture. This

change will have to come from within. The government or the regulatory

agencies at best can provide certain environment, which will be conducive for

such a mindset taking place, but the primary responsibility, is of the people

especially the members of the board of directors and the top management.

Another important aspect is to realize that ultimately the spirit of corporate

governance is more important than the form. Substance is more important

than style. Values are the essence of corporate governance and these will have

to be clearly articulated and systems and procedures devised, so that these

values are practiced.

We then come to a common moral problem in running enterprises. One can

have practices which are legal but which are unethical. In fact, many a time,

tax planning exercises may border on the fine razor’s edge between the strictly

legal and the patently unethical. A clear understanding of the fundamental

values which govern corporate governance and their explicit articulation in a

proper code backed by well established structures and traditions like the ethics

committee and audit committee may be the best insurance for good corporate

governance under the circumstances.

Corporate governance and ethical behavior have a number of advantages.

Firstly, they help to build good brand image for the company. Once there is a

brand image, there is greater loyalty, once there is greater loyalty, there is

29

greater commitment to the employees, and when there is a commitment to

employees, the employees will become more creative. In the current competitive

environment, creativity is vital to get a competitive edge.

10 Essential Governance Principles

A company should:

1. Lay solid foundations for management and oversight

- Recognize and publish the respective roles and responsibilities of board

and management.

* 2. Structure the board to add value

- Have a board of an effective composition, size and commitment to

adequately discharge its responsibilities and duties.

* 3. Promote ethical and responsible decision-making

- Actively promote ethical and responsible decision-making.

* 4. Safeguard integrity in financial reporting

- Have a structure to independently verify and safeguard the integrity of

the company’s financial reporting.

* 5. Make timely and balanced disclosure

- Promote timely and balanced disclosure of all material matters

concerning the company.

* 6. Respect the rights of shareholders

- Respect the rights of shareholders and facilitate the effective exercise of

those rights.

* 7. Recognize and manage risk

- Establish a sound system of risk oversight and management and

internal control.

* 8. Encourage enhanced performance

30

- Fairly review and actively encourage enhanced board and management

effectiveness.

* 9. Remunerate fairly and responsibly

- Ensure that the level and composition of remuneration is sufficient and

reasonable and that its relationship to corporate and individual

performance is defined.

* 10. Recognize the legitimate interests of stakeholders

- Recognize legal and other obligations to all legitimate stakeholders.

* 11. Corporate Governance Rating be made mandatory for listed companies.

Openness, integrity and accountability are the key elements of Corporate

Governance for any corporate entity. These factors assume greater importance

in case of Public Sector Banks. It is, therefore, necessary that the Board of

Directors, external auditors and supervisors of bank strive to achieve greater

degree of openness, transparency, integrity and accountability in the working

of the institution.

Banks deal in trust. If trust is in suspicion, damaged or lost, the resulting

financial loss cannot measure the true risk. Trust being the foundation of

banking, the discussion over applicability of good governance has really been a

non-issue. Good governance and practices are synonymous to banking, banks

and bankers. The essence of Corporate Governance is a framework of effective

accountability to all stakeholders. Corporate Governance is an instrument for

benefiting all stakeholders of a corporate entity. In its widest sense, Corporate

Governance is almost akin to a trusteeship. It is about creating an

outperforming organization, which leads to increasing customer satisfaction

and shareholder value.

A code for corporate governance for public sector banks in India could be in the

form of a set of prescriptions and proscriptions for the key decision makers of a

bank -I its Chairman, Executive and non-Executive Directors, institutional

31

investors and external auditors. Such a code, it is believed, would enable the

Boards of the banks to resolve conflict of interests between shareholders,

customers, employees and other stakeholders. An informed debate on the issue

of contemporary banking in the board rooms would help develop the vision to

imagine crises and the will to act pre-emotively.

In a deregulated milieu, the Public Sector Banks are bound to demand, and

rightly so, greater functional autonomy for flexibility in decision making. Such

autonomy, however, needs to be accompanied by greater accountability on the

part of their Boards to the stakeholders. A Code of Corporate Governance could

be an effective instrument for achieving this goal.

The Reserve Bank of India has set up various working groups to evaluate its

existing corporate governance norms for banks. The Khan Working Group

Report, though it did not deal with corporate governance per se, recommended

full operational autonomy and flexibility to the management and boards of

banks. The Narasimham Committee I recommended a gradual progress

towards BIS norms and suggested the ending of the dual control over the

sector by the RBI and the Ministry of Finance. The Narasimham Committee II

(1998) recommended reducing government control and strengthening of

internal controls. Additionally, Dr. Patil Advisory Group and Varma Group have

made recommendations on international best practices of Corporate

Governance for banking companies.

The report of the Consultative Group of Directors of Banks/Financial

Institutions – chaired by A.S. Ganguly – has tackled the issues of ethics,

transparency and corporate governance. It has focused on more fundamental

issues like the supervisory role of boards of banks and financial institutions

and functioning of the boards vis-à-vis compliance, transparency, disclosures,

audit Committees etc. A governance framework must include effective systems

of Control and Accountability, and above all responsible attitudes on the part

32

of those handling public money. It is important that the drive to provide

improved services at reduced costs should be maintained and that this drive

should not be stifled. At such time it is even more essential to maintain

honesty in the spending of public money and to ensure that the traditional

public sector values are not neglected in the effort to maximize economy and

efficiency.

Ethics in managing an organization are vital for long term survival. It is defined

as disciplined dealing with what is good and what is bad and what are moral

duties and obligations. As far as business ethics are concerned, a minimum

code of ethics has to be practiced in competition, public relations and social

responsibilities. Corporate Governance encourages ethical standards and

sound business practices.

Corporate governance extends beyond corporate law. Its objective is not mere

fulfillment of legal requirements but ensuring commitment on managing

transparently for maximizing shareholder values. As competition increases,

technology pronounces the deal of distance and speeds up communication,

environment also changes. In this dynamic environment the systems of

Corporate Governance also need to evolve, upgrade in time with the rapidly

changing economic and industrial climate of the country.

Finally the key lesson for us to learn are that Regulations and Policies are only

one part of improving governance. Existence of a comprehensive system alone

cannot guarantee ethical pursuit of shareholder’s interest by Directors, officers

and employees. Quality of governance depends upon competence and integrity

of Directors, who have to diligently oversee the management while adhering to

unreachable ethical standards. Strengthened systems and enhanced

transparency can only further the ability. Transparency about a company’s

governance process is critical. Implementing Corporate Governance structures

are Important but instilling the right culture – work culture is Most Essential.

33

Corporate Governance in the Public Sector cannot be avoided and for this

reason it must be embraced. But Corporate Governance should be embraced

because it has much to offer to the Public Sector. Good Corporate Governance,

Good Government and Good Business go hand in hand.

34

CHAPTER-4

ARTICLES ON CORPORATE GOVERNANCE AND ETHICS

35

Business Ethics - A Function of Corporate Governance and Commitment By Dr. Earl R. Smith

We are living through a period of lax morality and ethics. It almost seems that

Americans have been divided into predator or prey and the society has

descended into a jungle dominated by hunt, kill and eat. Early writers on the

American Revolution suggested that, like a nurturing parent, government’s job

was to arbitrate conflicts in society and keep citizens focused on the ‘better

angles of their nature’. The corporate excesses of the last couple of decades are

a good example of what I mean. The ‘all-for-me’ generation reached its height in

the form of the CEOs and their ‘golden parachutes’. Sarbanes-Oxley was a

reaction to a wide range of corporate finance scandals - of which only a few

were high profile. However, those few high-profile cases were enough elicit a

reaction from Congress in an attempt to address the lack of confidence

investors were showing in corporate America. Several members of corporate

management, corporate finance, several Chairman and CEO’s were caught up

in greed and mismanagement, and some even went to jail because of blatant

misdeeds in carrying out their fiduciary responsibilities to stockholders. Few

people would disagree with punishing wrongdoers bilking millions from

companies and leaving stockholders, holding the bag. Many asked the

question, “is it the government’s responsibility to police corporate America”? In

earlier decades, few of us might have agreed to allow Congress to decide how to

spend our personal budget or how to protect their personal assets. Fewer still

36

would have agreed to allow Congress to decide what is ethical and what is not.

However, Sarbanes- Oxley was not about government prerogatives - it was

about law enforcement and protecting society from predators. The so-called

‘free market’ became a jungle in which the predators became richer and the

prey were diminished an extend that threatened the very fabric of society.

Corporate governance is more complex than governing most household

budgets. However, corporate ethics is still about what is right or wrong.

Corporations are not above the laws of society and need to be carefully

monitored – particularly in these days of mega corporations and global finance.

In his farewell address, President Dwight Eisenhower warned against the rise

in power of the military industrial complex. Well, it rose in power - often

supported by elected officials - and the results were the excess that caused

legislation like SOX to be passed. Now advisory boards and external auditors

operate under regulations such as Sarbanes-Oxley. However, the most

stringent regulations cannot overcome corporate ethics and corporate cultures

that encourage or refuse to acknowledge obvious corporate finance

irregularities. The deeper problem lies with the culture of excess that has

grown up within the corporate world - and the attitude that citizens are prey to

be slaughtered and consumed. It is time to develop a new corporate ethics.

Corporate ethics start with the CEO and Chairman. However, it comes into

practice through the directors elected to oversight positions and hold authority

over corporate management. The leadership styles and the integrity of a

company are dependent upon the ethics of the directors and their ability to get

involved in the details of the information they are presented with. The area of

financial review is a hot spot for this kind of activity. Many of the past ethical

lapses have occurred through financial misstatement. Directors need a string

ethical compass. Delving into the details must include:

37

· A thorough understanding by all members of the board of directors of the

controls on corporate management

· An unencumbered audit committee

· A transparent relationship between corporate management and the external

auditor

· A transparent relationship between the CEO/Chairman and the external

auditor

· A strong well-trained internal auditor

When the CEO and corporate management understand the expectations of the

board of directors for a thorough and honest assessment of the financial

controls by an independent external auditor and a review of the auditor’s work

by an independent internal audit committee, wrong-doings become less

frequent, and attention to even minor accounting issues become more focused.

Good governance of accounting and corporate finance will safeguard the

integrity of the information generated for the investment community and instill

confidence in the stockholders of the company.

Coaching and constant reinforcement by senior management of line

management regarding corporate ethics will focus attention on the level of

commitment the directors are placing on corporate integrity. Publicly

prosecuting intentional violators of regulations and laws will deter some people

from making an attempt at embezzlement. When wrong-doing or a breakdown

in controls is discovered directors should discuss in private board meetings the

details of the issue and immediately put into place additional needed controls.

The CEO should be charged with instituting the new controls and with publicly

discussing the breakdown and the corporate response with all employees.

When the CEO shows passion and leadership on issues surrounding corporate

ethics, leadership development or the personal growth of the management

team, aggressive measures will be taken at all levels on these issues.

Professional governance must pay attention to all regulations and make sure

compliance management measures are followed. However, only a poor, weak

38

management team relies on regulations alone to protect their company’s

integrity and reputation. Boards, CEO’s and Chairmen must demonstrate their

personal commitment to honesty in their business affairs, and must be

prepared to react quickly and decisively when breaches in corporate ethics

occur. In the end, directors - in their fiduciary relationship to the shareholders

are ultimately responsible - and liable - for the actions of the corporation. For

too long it has been thought that the CEO and senior team bore that

responsibility. However, the last couple of decades have shown that ethics are

too important to be trusted to the very people who will benefit by ignoring

them. Directors must step up to that responsibility and force management to

operate within high ethical standards.

39

CHAPTER-5

BIBLIOGRAPHY

40

BIBLIOGRAPHY

Books

Corporate governance and ethics- By Alejo José G. Sison(page 25-

146,177-214)

Corporate ethics and corporate governance- By Walther Christoph

Zimmerli,Klaus Richter, Markus Holzinger (page 37-54)

Project governance- By Patrick S. Renz (page 49-218)

Articles in newspapers (Aug01 – jan20)

The Tribune

Hindustan Times

The Hindu Magazines

India today

Business today

Websites www.Wikepedia.org

www.ciena.com

www.icmrindia.org

www.ifac.org

www.globalchange.com