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Should CS be an expert even in general law?

Durga Rao 
on 28 December 2009

LinkedIn


Company Secretary plays a very very complicated role in the todays corporate world. I would say that the role of Company Secretary is very very complicated than any professional, in view of the stakes involved and plethora of regulations to be kept in mind always.

We all know the role of Company Secretaries and the notes issued by ICSI and other connected regulations specifically dealing with the role of Company Secretaries. If we keep the specific regulations dealing with the role of Company Secretaries apart, what a Company Secretary does is:

1. Assisting the promoters in promoting a company or getting a company incorporated.

2. Though the issue of incorporation appears to be very simple, the issue of preparing regulations or articles for a private limited company poses a challenge for Company Secretaries. Because, promoters may want certain regulations and the Company Secretary should look into the provisions of the Act and then decide as to whether such a regulation as requested by the promoters be incorporated in the articles. We all know that no document can override the provisions of the Act and its a settled rule of Company Law.

Assist the Company in preparing pre-incorporation contracts as the legal practitioners may not have expertise on the validity of pre-incorporation contracts and agreements with managerial people.

4. Assist the Company in getting the required certificates from the ROC for commencing the business as it is required for public companies while the private company can commence business immediate to the grant of certificate of incorporation.

5. Assist the Company in appointing first auditors and assisting in conduct of statutory meeting.

6. Assist the Company in maintaining all the registers, indexes, documents etc. as required under the provisions of the Companies Act, 1956 and other regulations.

7. Drafting the required notices and resolutions for the purpose of Board Meetings and Annual General Body meetings.

8. Assist the Company in filing e-forms with the Registrar of Companies and keep the Company informed of the requirements with regard to filing.

9. Getting permissions from the Regional Director, ROC or Company Law Board at times.

10. Assist the Company in issuance of shares, debentures and raising loans etc.

11. Dealing with FEMA requirements and at times, he may advise the Company on RBI regulations.

12. Addressing the grievances of the shareholders against the Company if any.

13. Assist the Company or advise the Company with regard to the documents to be maintained.

14. Assist the Company with regard to preparation of schemes, settlements, amalgamation schemes etc. and getting the work done in the course.

I have listed only a few things which a Company Secretary normally do. The responsibilities of a Company Secretary depend upon his relation with the Company. For example, the role of a Company Secretary in employment of a Company is different from the role of a Company Secretary in practice.


Again, the responsibilities of a Company Secretary will be more if the Company is a listed Company or the Company opts to go for listing. In such case, the Company Secretary should be well versed with SEBI (DIP) regulations, plethora of other SEBI regulations, the listing agreements, liasoning with stock exchanges and dealing with various intermediaries in the course of listing and after listing. We all know that every Company should comply with the listing agreement with Stock Exchanges and in the course there will be continual and event based disclosures to the Stock Exchanges.

Thus, a Company Secretaries role in a Company is complicated and a true Company Secretary discharges commendable responsibilities and he is very very important professional in the Corporate World.

While every professional does a good job, the job of Company Secretary differs from the Job of Chartered Accountant and legal professionals. It is true that even the Chartered Account is to be well versed with the provisions of the Act as he needs to deal with same in his auditors report. But, the scope is limited and I know that there are so many complications in his job though he basically prepares financial statements to be filed by every company. In his professional life, Chartered Accountant will also be under pressure as the Company may not disclose certain things, as the professional standards demands the Chartered Accountant to go in a particular way and Satyam episode is the best example on the limitations of auditing and also the complications of Accounting Profession.

I have just given the required background or a small brief on the roles and responsibilities of Corporate Professionals and especially the Company Secretaries.

Normally, students feel that the role of Company Secretary is different from a role of Advocate and as such they need not be experts in law. But, that is not right and the Company Secretary should also be an expert in law. Infact, what is law It is nothing but a command of sovereign. Company Secretary basically deals with the corporate law or regulations. He may not be an expert in family law or the motor vehicle law, but, he must be an expert in Company Law.

It is not enough to be well versed only with the provisions of Company Law, the Central Government rules and SEBI regulations, the Company Secretary should also learn all the legal aspects or the issues. For example, Company Secretary is authorized to appear before the Company Law Board and other Tribunals like Securities Appellate Tribunal. It is very very difficult to deal with the issue as to what is the difference between a Court and Tribunal and I would say that there is no much difference expecting their focus. Tribunal is formed for particular purposes while the Court responsibilities and work pressure is more. When Company Secretary appears before Tribunal and prepares to present a case, then, he must know the general legal principles like Res-judicata, Res-subjudice, ratio decidendi, the constitution, the constitutional provisions, the general law etc. A Company Secretary may not deny the request of his employer in the course of employment if he is asked to appear before a particular forum.

A Company Secretary should be well versed at least with:

1. The Constitution.

2. The Transfer of Property Act.

The Contracts Act.

4. The Specific Relief Act.

5. The Specific Performance Act.

6. Civil Procedure Code.

7. Criminal Procedure Code.

8. Settled legal principles etc.

I have just listed few areas, but, there are more areas where a Company Secretary should concentrate. I have not listed Income Tax Act as a Student Company Secretary will be dealing with all Tax Laws and Corporate Regulations. Why I have stressed the importance of expertise even in law is that the students will normally concentrate in examination point of view and may not be interested in gaining knowledge over general laws. That should not be the attitude. If a Company Secretary is not an expert in law or atleast on certain important areas of law, then, he may be in trouble when he comes to profession or works in a Company. I have the privilege of knowing this personally.

Thus, in my considered opinion, a Company Secretary should also be an expert in general law and not only in Corporate Law and so that he will be discharging his responsibilities efficiently and a student pursuing Company Secretary should lay special emphasis on gaining legal knowledge to the extent possible.

NOTE: I am aware of my limitations and I have only expressed my views and given a very short brief on the subject which I feel useful for students basically.




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