Many companies have good accountants, but from the financing perspective, planning and strategizing is the area where the entrepreneur really needs help. It is then that the CFO or the Chief Financial Officer comes into play.The position of a CFO in a company is that of an enabling partner to the business. They are the ones facilitating the key aspects of a company’s business strategy. Moreover, given their firm grasp of financial fundamentals and their management strengths, a growing number of CFOs are adding the operational responsibilities for functions such as IT or property to their sphere of assignments.
Traditionally, a CFO focuses on the financial controls and processes, with a significant percentage of time spent on reporting historic numbers and controlling the risk and the cost to the company. The CFO bridges the gap between the numbers, operations and strategy.
In today’s business setup when the operational costs keep raising by the day, the option of having a virtual CFO may be thought of more because the size of the company may not support the cost or the dedication of time of a full time CFO. This virtual CFO would be a part time employee as he/she will not do the day-to-day accounting data entry or reconciliation work but will work closely with the accounting staff to ensure accurate historical reporting and add value to the borrowing or funds raising process of the company.
The emergence of this position is based on various overarching trends in the industry that are here for some time now. These may be summarised as-
- Commoditization of compliance related work.
- Increased level of competition.
- Increased rate of fee compression within the industry.
- Usage of technology based automation of basic functions.
There are various points of advantages of having a virtual CFO over a fulltime one for a company in its growth phase.
- The Virtual CFO is very flexible in terms of its engagement criteria. They are able to start small and scale up as they grow or even scale down if the need arises to streamline the business.
- The prior relevant experience of the CFOproves useful in strengthening the finance function of the company.
- The company gets the advantage of the best practices in the management of the finance and accounting function. Along with this, he acts as the adviser cum mentor to the CEO and helps the management formulate better business strategies.
- Despite being a full time employee, a virtual CFO does represents the company to the world at large. He carries the visiting card of the company in all business dealings that are undertaken in the company’s name.
- A strong CFOnot only helps the company with its decision-making process, but also helps in better negotiations.
The above discussion has led us to deduce thatgiven the circumstances of a startup ecosystem where the scarcity of resources is wide spread, the idea of having a virtual CFO is quite lucrative. The presence of an outsourced service provider would provide the company with the flexibility of choosing services as and when required. A virtual CFO provides the strategic, value add services to a startup, which cannot otherwise be provided by an accountant under normal circumstances.
It is quite evident that India is paving the way for a more gender- balanced workforce, which makes it imperative that strong public opinion against sexual harassment prevails around us. In the past years, an increase in the levels of awareness is witnessed through training and consistent communication from a compliance standpoint. The reason for acceptability needs to go beyond not just the complying requirement for the sake of compliance procedure but to resonate with the individuals at a more personal level.
Since the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 w.e.f. 9 Dec. 2013, companies have been striving to ensure their compliance with this act. In the initial phase of this transition, the companies are required to deal with the intricacies of equipping their management and the internal complaints committee with the appropriate understanding and tools to address such cases. The next phase is completely different with respect to the enforcement of acceptable behaviour and principles mandated as per the act, which are to be interpreted on basis of individual cases brought before the internal committee for investigation, by all the parties involved. It is this stage, when the company needs to appropriately enforce the provisions of the act to get the right message across all the levels of managerial hierarchy by setting the right tone within the company.
Recently the economic times a leading newspaper had published an article over the issue of non-compliance of the 2013 act, referring to a joint report by FICCI and ERNST & YOUNG titled ‘FOSTERING SAFE WORKPLACE’. According to this news article, it was foundthat nearly 36% of Indian companies and around 25% of the MNCs are not compliant of the sexual harassment act 2013. Cases of sexual harassment have been on rise in 2014, according to the report of the national commission for women (NCW). From 249 reported complaints in 2013, the number has doubled in the year 2014 to 526 complaints. The survey by FICCI for their report shows that at least 31% of the respondents were found not compliant with the provisions of the act since its enactment, within which the constitution of internal complaint committee is mandated to address the complaints.The Act is in place to further the cause of good governance practices in workplaces and provide a safe working environment to the women employees.
The failure to comply with the requirements of the act, led to the formation of a gap in the level to awareness among the employees about the implications of the Act in their lives. It was reported that about 40% of the respondents are yet to train their internal complaint committee members.
Indian companies had fared very low with 47% compliance rate while the MNCs stood at 34%. It was further reported that nearly 35% of the companies were not at all aware about the penal consequences for non-compliance of the statutory regulations while 44% did not even display the posters about the penal consequences of non-compliance of the act’s provisions. It is only the SME sector that fared low among the total number of Indian companies with 71% non-compliance being only for failure to display clearly the penalties with the premises.
There are certain key factors that are significant for the successful implementation of theSexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
- Invoking a strong sense of commitment to this cause:
For any cause to be successful, it is necessary to invoke a strong sense of commitment towards the realisation of a particular result. All efforts are to be direct to the achievement of that motive. The ones responsible for the implementation of the legislations are to be trainedfully to anticipate the cause and effect of their decisions and be able to sensitize their colleagues of the effects of non-compliance of the law.
- Using diligent investigative mechanism:
The investigative mechanism set up to deal with the complaints of sexual harassment should be diligent enough to identify the genuine cases of harassment from the frivolous ones. It would ensure transparency in the whole procedure of investigation and maintain an air of vigil in the workplace making the employees safe against any discrimination.
- Manage issues effectively:
The internal complaint committee would be receiving a gamut of complaints of varied facts and circumstances ranging from minor issues of un-warranted flirting to major cases of severe harassment like abuse of power, serious abusive work relationship, etc. This situation would require the internal committee to keep themselves aware about the day-to-day happening within the company to have a clear picture of every complain put forth before them.
- Creation of a mechanism to address different perspective:
The nature of sexual harassment at work place has been perpetual as different people in the same organisation view it differently. This may be a major issue causing a communication gap within the workplace. To overcome this type of situation, it is essential that all employees are educated about the basics of what constitutes a sexual harassment case in work place scenario.
Hence, to conclude the discussion it can be summarised that despite the recent enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and widespread clamor about this problem, the people who are really affected by the harassment are not getting theredressal.
This happens mainly due to the complacent attitude of the higher authorities and peers who are themselves not updated about the implications of this problem.Proper awareness and sensitization of all employees will lead to the successful implementation of the objective of this act.
In exercise of the powers conferred on the reserve bank of India under the provisions of section 35A of the banking regulation act, 1949, the RBI has issued directions to all the scheduled commercial banks (excluding regional rural banks) regarding the “Gold Monetization Scheme” in pursuance of the central government notification in this regard. This direction is called ‘The Reserve Bank of India (Gold Monetization Scheme) Direction, 2015.
This “Gold Monetization Scheme” is the modified version of the existing ‘gold deposit scheme, 1999” and the ‘gold metal loan scheme’. It is intended to mobilise the gold held by the households and institutions of the country and facilitate its use for productive purposes, and in the long run, to reduce the country’s reliance on the import of gold.
- Under these directions, the RBI has put forth the definitions of the relevant terms in connection with this scheme in section 1.3 of chapter 1 of the directions. It has defined the terms like Collection and Purity Testing Centre (CPTC),Medium and Long Term Government Deposit (MLTGD), Nominated bank, Short Term Bank Deposit (STBD), etc.
- Under the provisions of section 2.1 the basic features of the scheme has been provided.The interest and the principal payments to be made on the gold deposits under the scheme are to be denominated in gold. Here, all deposits under the scheme shall be made at the CPTC, however at their discretion banks can use the stock of the gold as part of their statutory liquidity ratio (SRL) requirement, under which they will have to make at least 21.5% of their investments in government bonds.
- All the gold deposits will be subject to the cash reserve ratio (CRR) requirements under which the banks now have to maintain 4% of deposits as interest free buffer with the central bank.
- The interest on the deposits under this scheme will start accruing from the date of conversion of gold deposited into tradable gold bars after refinement or 30 days after the receipt of gold at the CPTC or the bank’s designated branch, as the case may be, whichever may be earlier.
- The period during which the gold deposit is received and the date when the interest starts to accrue on the gold so deposited will be treated as an item in safe custody held by the designated bank.
- The day when the gold deposited starts accruing interest, the designated banks shall translate the gold liabilities and assets in Indian rupees by crossing the London AM fixing for the gold i.e. the USD rate with the rupee-US Dollar reference rate as announced by RBI on that day. Now the prevalent custom duty for import of gold will be added to the above value to calculate the final value of gold.
- The designated banks need to submit an annual report for the monthly data on the GOLD MONETIZATION SCHEME to the RBI in the prescribed format.
Under the provisions of section2.1.2, the procedure for the acceptance of deposits has been prescribed. Here only the minimum amount of deposit has been prescribed to 30 grams of raw gold of 995 fineness, without any set maximum cap on the quantity that can be deposited. It is specified in the directions that all the gold that have been tendered under the scheme will be compulsorily assayed at the CPTC only.
The guidelines have specified that the Bureau of Indian Standards will certify all the gold, which will be accepted at the collection and purity testing centres (CPTC), and the central government under the scheme would notify it.
As per these directions, the banks are allowed to accept three kinds of deposits under this scheme-
- A short term deposit with maturity ranging from one to three years,
- A medium term deposit with the maturity ranging between five to seven years,
- A long-term deposit maturing in the range of twelve to fifteen years.
The banks which will accept the gold under the short-term category will be able to sell or lend it to the state owned Metals and Minerals Trading Corporation of India(MMTC LTD) or the jewelers. Here the banks may also chose to lend it to other banks participating in this scheme.
The RBI has issued clear directions to the designated banks to have in place a suitable risk management mechanism, including appropriate limits, to manage the risk arising from the gold price movements in respect of the net exposure to gold at their end.
In case of the short-term deposits, the depositors have the option of redemption, for the principle deposit and the interest earned, either in cash that is equivalent to the amount in rupees of the weight of the gold deposited at prevailing prices at the time of redemption or in terms of the gold equal to the weight of the gold so deposited, which will have to be exercised at the time of making the deposit with the designated center.The redemption of the fractional quantity particularly where any standard gold bar or coin is not available, will be by payment of the amount in cash.
For medium and the long-term deposits, redemption will be done only in cash, which will be equal to the value of gold in rupee terms of the weight of the gold so deposited at the prices prevailing at the time of redemption. Here the interest earned will be based on the value of gold at the deposit on the interest rate that will be decided from time to time.
The Companies Act 2013 is enacted to meet the present day challenges posed due to growing sphere of corporate governance arising from the stakeholders’ expectations. The 2013 act has ushered in a new era of corporate governance, by increasing the roles and responsibilities of the board of directors, protecting shareholders’ interests, bringing in a disclosure based regime and built in deterrence through self-regulation.
The 2013 Act provides for statutory recognition of duties of a director, such as exercise of due and reasonable care, skill, diligence, and independent judgment. Being fiduciaries, directors are exposed to liabilities as consequence of a breach of their duties.
The act has introduced several measures, which have the effect of considerably enhancing the duties and liabilities of directors. While some of the requirements already existed for the listed companies as part of the listing agreement, the new requirements under the 2013 Act apply to all companies.
There are two set of liabilities for the directors. The first set of liabilities is statutory in nature. The approach in the new regime is to impose stiffer penalties in case of criminal offence to constitute a strong deterrent on director’s conduct that falls short of the desired standards.The second set of liabilities arises from the claims made against the directors by either the company or the shareholders for breaches of director’s duties.
Under section 2(60) of the 2013 act, the concept of ‘officer who is in default’ has been given to include the person i.e. director who was handling a particular transaction on behalf of the company. Here the attribution of criminal liability of such officer is established and they shall be liable to penalty or imprisonment.
Therefore, the question arises about what all makes a director liable under the companies act, 2013? To understand this lets see the list given below which covers the various liabilities under different sections of the 2013 act:
- Under section 53- Prohibition On The Issue Of Shares At Discount-
- For company- fine- not less than Rs 1 lakh and may extend to Rs. 5 lakhs.
- For officer in default- maximum imprisonment of 6 months or fine – not less than Rs. 1 Lakh and may extend to Rs. 5 lakhs or with both.
- Under section 57- Punishment For Personation Of Shareholder–
- Such person in default- minimum 1 year to maximum 3 years and imprisonment or fine – not less than Rs. 1 lakh and may extend to Rs. 5 Lakhs.
- Under section 58 (6) – Refusal Of Registration And Appeal Against Refusal–
- Such person in default- minimum 1 year to maximum 3 years and imprisonment or fine – not less than Rs. 1 lakh and may extend to Rs. 5 Lakhs.
- Under section 59 (5) – Rectification Of Register Of Members–
- For company – fine – not less than Rs. 1 Lakh and may extend to Rs. 5 Lakhs.
- For officer in default – maximum imprisonment of 1 year or fine – not less than Rs. 1 Lakh and may extend to Rs. 3 Lakhs or with both.
- Under section 68(11)- Power Of Company To Purchase Its Own Securities–
- For company- fine- not less than Rs.1 Lakh and may extend to 3 lakhs.
- For officer in default- maximum imprisonment of 6 months or fine – not less than Rs.1 Lakh and may extend to Rs.3 Lakhs or with both.
- Under section 71(11)- Debentures–
- For officer in default- maximum imprisonment of 3 years or fine- not less than Rs. 2 lakh and may extend to Rs. 3 lakhs or with both.
- Under section92(5)- Annual Return–
- For company- not less than Rs. 50,000 and may extend to Rs. 5 Lakhs
- For officer in default- Maximum imprisonment of 6 months or fine – not less than Rs. 50,000 and may extend to 5 Lakhs or with both.
- Under section118 (2) – Minutes of Proceedings of General Meeting, Meeting of the Board of Directors and Other Meetings and Resolutions Passed by Postal Ballot. –
- Any person guilty of tampering with the minutes- maximum imprisonment for 2 years and fine- not less than Rs.25,000 but which may extend to Rs.1 Lakh.
- Under section 128(6)- Books Of Account, Etc., To Be Kept By Company–
- For officer in default- maximum imprisonment of 1 year or fine – not less than Rs. 50,000 and may extend to Rs. 5 Lakhs or with both.
- Under section 129(7)- Financial Statement-
- For officer in default- maximum imprisonment of 1 year or fine – not less than Rs. 50,000 and may extend to Rs. 5 Lakhs or with both.
- Under section 134- Financial Statement, Board’s Report, Etc. –
- For company – not less than Rs. 50,000 and may extend to Rs. 25 Lakhs.
- For officer in default – maximum imprisonment of 3 years or fine – not less than Rs. 50,000 and may extend to Rs. 5 lakhs or with both.
- Under section 137 (3) – Copy Of Financial Statement To Be Filed With Registrar–
- For company – fine – not less than Rs. 1,000 for each day in default but not more than 10 Lakhs.
- For officer in default – maximum imprisonment of 6 months or fine – not more than Rs. 1 Lakh and may extend to Rs. 5 Lakhs or with both.
- Under section 167 – Vacation Of Office Of Director–
- Director- maximum imprisonment for 1 year or fine – not be less than Rs. 1 Lakh and may extend to Rs. 5 Lakhs or with both.
- Under section 182 (4) – Prohibitions And Restrictions Regarding Political Contributions–
- For company – fine – 5 times of the amount of contribution in contravention
- For officer in default – maximum imprisonment of 6 months and fine- 5 times the amount of contribution in contravention.
- Under section 184 (4) – Disclosure Of Interest By The Director –
- Such person in default – Minimum 1 year imprisonment or fine – not less than Rs. 50,000 and may extend to Rs.1 Lakh or both.
- Under section 185 (2) – Loan To Directors, Etc. –
- For company – not less than Rs. 50,000 and may extend to Rs. 25 Lakhs.
- For officer in default – maximum imprisonment of 6 months or fine – not less than Rs. 5 Lakhs and may extend to Rs. 25 Lakhs or with both.
- Under section 186(13) – Loan And Investment By Company-
- For company – not less than Rs. 25,000 and may extend to Rs. 5 Lakhs.
- For officer in default – maximum imprisonment of 2 years or fine – not less than Rs. 25,000 and may extend to Rs. 1 Lakh or with both.
- Under section 187 (4) – Investments Of Company To Be Held In Its Own Name–
- For company – fine – not less than Rs.25, 000 and may extend to Rs.25 Lakhs.
- For officer in default – maximum imprisonment of 6 months or fine – not less than Rs. 25,000 and may extend to Rs. 1 Lakh or with both.
- Under section 188 (5) – Related Party Transactions–
- In case of unlisted company, offence is punishable with fine, which shall not be less than Rs. 25,000 and may extend to Rs. 5 Lakhs.
- Under Chapter – IV – Registration Of Charges–
- For company – fine – not less than Rs.1 Lakh and may extend to Rs. 10 Lakhs.
- For officer in default – maximum imprisonment of 6 months or fine – not less than Rs. 25,000 and may extend to Rs. 1 Lakh or with both.
- Under section447 – Punishment For Fraud–
- Any person who is found guilty of fraud – maximum imprisonment of 6 months may extend to 10 years.
- Such person can also be liable to fine, which may extend to 3 times the amount involved.
We know that a Commercial Lease is a kind of contract, which is used when we need to rent a business property to or from another individual or company. The lease gives the tenants the right to use the property for business purposes during the term of the lease in exchange for payment to the owner of the property.
A commercial lease,generally, covers the property owner and tenant’s information, which includes the information about a guarantor, the amount of rent payable, the duration of the lease term and any pertinent information, which constitutes together as a term of lease.
The longer version of this contract is always inclusive and allows precise specifications to be provided for the terms of the lease. The short version has a more general kind of lease agreement and it does not include any clauses or terms that are unnecessary. Unlike a residential lease, a commercial lease tends to cost the tenant many times more than a residential lease and is made for a duration that is longer, which often-lasts around 5 years but it can be of a lesser durationor a greater durationas againstan average of 11months duration in case of residential lease in normal circumstances.
In India, the prevalent commercial leases are usually term based and they would be having a specific time limit after which the lease would be unenforceable i.e. it will expire. In the olden times, some leases used to be perpetual by nature but it has become a rare practice now as the property value and rents are steadily increasing.Nevertheless, there are other categoriesof lease apart from the general straight forward leases i.e. master lease/sub lease, here the lease gets a further right to lease the property to more persons.
- Master Lease: In this kind of lease, the original leaseholder or the tenant is the master tenant in case a sublease is created.
- Sublease:In this case, the original tenant can assign some or all of his interests in the premises to the third party. Here the original tenant becomes the master tenant and the new tenant becomes the subtenant. The point to be noted here is that the original is not replaced but is responsible for rent and damages for the term of the lease. The only way out for that person is through novation of the original lease agreement with the landlord’s consent.
Globally, different types of leases are prevalent, with various nomenclature. Slowly these types of leases are making their mark in India as well with regard to specialized kind of transactions. These types of leases can be listed as under:
- Net Lease–
In this type of lease, the tenant is responsible for paying the rent along with property taxes accruing for the premises.
- Double Net Lease(NN)-
Here, the tenant has to pay the rent along with the property taxes and the insurance costs applicable on the premises.
- Triple Net Lease(NNN) –
In this type of lease, the burden on the tenant is increased considerably as they have to now pay the rent amount along with their share of property taxes, insurance premium and the operating cost of the premise.
- Gross Lease–
In case of this type of lease, the tenant has to pay to the landlord one set of rent and in turn, the landlord will pay for the insurance, real estate taxes and bear the maintenance costs. This type of lease is common in case of places having multiple tenants.
- Modified Gross Lease–
This type of lease is more or less similar to the gross lease conditions but here the tenant has the responsibility to pay for the janitorial services provided in and around the premises.
- Industrial Gross Lease–
As per this category, the tenant is also responsible for paying for their share of utilities and janitorial services along with the basic rent of the premises.
- Full Service Lease-
In this kind of lease, all the services, including utilities and janitorial services, are included in the rent.
- Index Lease –
Here, the amount of rate of rent is dependent on the price index like the e consumer price index (CPI). This is a type of neutral percentage rate and neither party has any control over it.
- Percentage Lease–
This type of lease is dependent on the percentage of the gross sales received by the business. It varies from year to year based on the success of the business.
- Graduate Lease –
Here, the amount of the rent varies for future years depending on certain factors like gross income, or an annual percentage increase.
- Step Up Lease –
In this type of lease, the amount of rent is increased by a pre-set rate or a set amount that is to be paid on a set schedule.
- Straight Or Flat Lease –
This is the basic type of lease that is commonly used among the listed leases above. Here the amount of the rent is fixed for whole term of the lease.
Sexual harassment at workplace is an issue that has to be dealt jointly by the employer and the victim. There can be no solution in isolation as it may lead the harassers to believe that they cannot be prosecuted by anyone. The employers have to put in place proper mechanisms to provide proper recourse to the victims of such abuse.
The ambit of the sexual harassment act is very wide and is applicable to the organized as well as the unorganized sector. In the view of a wide definition of ‘workplace’, the statute applies to all governmental bodies, private and public sector organisations, non-governmental organisations, etc. along with the places visited by the employee during the course of employment or for reasons arising out of employment. In case of government organisations, which are also within the ambit of the Sexual Harassment act, 2013, the compliance to the provisions of this act is done in the most formal manner.
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013‘sexual harassment will amount to misconduct in employment under all relevant conduct and service rules and regulations, of all government departments both at the center and the states. Under chapter six of these rules, section 19(i) states the duties of the employer wherein it is provided that
“Every employer shall treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.”
The Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, under the Government of India is the sole authority for the regulation of central civil services (conduct) rules in India. The central civil services (conduct) rules, 1964 is compliant of the provisions laid down in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 and the Sexual Harassment act, 2013.
Under the provisions of rule 3 (b) (ii) of the central civil services (conduct) rules, 1964, government servants are supposed to observe the government’s policies regarding prevention of crime against women. Further, as per the provisions of section 3(c), sexual harassment of working women is prohibited as per its sub sections namely,
- “No government servant shall indulge in any act of sexual harassment of any woman at any work place.
- Every government servant in charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at the workplace.”
The department of personneland training, Government of India had circulated the following provisos to the guidelines regarding prevention of sexual harassment of working women in workplace by the circular dated 3rd august 2009, namely,
“PROVISIONS OF Rule 14 (2) of the CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965
Rule 14 (2) – Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”
Further, the government through the personnel department vide the circular dated 16thJuly 2015 has notified a stepwise guide for the conduct of inquiry in case of sexual harassment complaint under the provisions of rule 14(2) of the Central Civil Services (Classification,Control and Appeal) Rules, 1965which lays down that the complaints committee established in each ministry or department for the purpose shall hold such inquiry as far as practicable in accordance with the procedure laid down in these rules.
The mechanism for the conduct of inquiry of complaints of sexual harassment can be summarised as follows:
- As the first step, the 2013 act requires every workplace to set up a complaint committee i.e. the internal complaints committee under sec. 4(2), headed by a woman withat least half of its members beingwomen. The involvement of a third party to this committee is also recommended.
- In case of any complain, the Complaints Committee set up in each Ministry or Department etc. for inquiring into such complaints shall be deemed the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules. Complaints Committee, unless a separate procedure has been prescribed, shall hold the inquiry as far as practicable in accordance with the procedure laid down in the Rule 14.
- The Complaints Committee when investigating the allegations makes recommendations on whether there is a prima facie substance in the allegations callingfor a formal inquiry or not.
- On receipt of the Investigation Report, the Disciplinary Authority examines the report with a view to see as to whether a formal Charge Sheet needs to be issued to the Charged Officer. As per Rule 14(3), Charge Sheet is to be drawn by or on behalf of the Disciplinary Authority.
- In case the Disciplinary Authority decides on that course, the Charged Officer should be given an opportunity of replying to the Charge sheet. As per Rule 14(5), a decision has to be taken after consideration of the reply of the charged officer.
- If the Charged Officer admits the charges clearly and unconditionally, there will be no need for a formal inquiry against him and further action may be taken as per Rule 15 of the Central Civil Services (Classification,Control and Appeal) Rules, 1965.
- In case the Charged Officer denies the charges and his reply is not convincing, the Charge sheet along with his reply may be sent to the Complaints Committee for formal inquiry, and documents mentioned in Rule 14 (6) will be forwarded to the Complaints Committee. As per Section 11(3) of the Act, for the purpose of making an inquiry, the Complaints Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents; and
(c) Any other matter, whichmay be prescribed.
- The Section 11(4) of the Act requires that the inquiry shall be completed within a period of ninety days.
- Once the proceeding are formally over the Inquiring Authority then writes the Inquiry Report in which the evidence in supportof the charges and against them will be examined. The Report should be a speaking one clearlybringing out as to the evidence based on which any particular conclusion has been reached.
- Based on this analysis the Inquiring Authority will give its findings on the Articles as proved ornot proved. In case any Article of charge is proved only partially, then the Inquiring Authorityshould record the extent to which that Article has been proved.
- A Government servant may be placed under suspension before or after issue of aCharge Sheet where his continuance in office will prejudice the investigation. It is necessary to place the Governmentservant under suspension to demonstrate the policy of the Government to deal strictly withofficers involved in such scandals. It may be desirable to resort to suspension in case ofmisdemeanor involving acts of moral turpitude.
The Accounting Standards specified under the Companies Act, 1956 (which aredeemed to be applicable as per Section 133 of the 2013 Act, read with Rule 7 of Companies(Accounts) Rules, 2014) is one of the criteria constituting the financial reporting frameworkbased on which companies prepare and present their financial statements and against which theauditors evaluate if the financial statements present a true and fair view of the state of affairsand operations of the company in an audit of the financial statements carried out under the 2013Act.Similarly, a benchmark internal control system, based on suitable criteria, is essential to enable the management and auditors to assess and state adequacy of and compliance with the system of internal control.
The companies act, 2013 has introduced many new reporting requirements for the statutory auditors of companies. Since the concept of reporting on internal financial controls is still new in India this new reporting requirement has thrown up many challenges for auditors. One of these requirements is given under section 143(3)(i) of the Act requiring the statutory auditor to state in his audit report whether the company has adequate internal financial controls system in place and the operating effectiveness of such controls.
According to the Companies Act, 2013, the term IFC has been defined as the policies and procedures adopted by the company to ensure orderly and efficient conduct of its business, including adherence to company’s policies, safeguarding of its assets, prevention and detection of frauds and errors, accuracy and completeness of accounting records, and the timely preparation of reliable financial information.The explanation to Section.134 (5) (e) of the companies act, 2013, defines the term ‘internal financial controls’ as meaning-
‘the policies and procedures adopted by the company for ensuring the orderly and efficient conduct of its business, including adherence to company’spolicies, the safeguarding of its assets, the prevention and detection of frauds anderrors, the accuracy and completeness of the accounting records, and the timelypreparation of reliable financial information’.
The internal financial controls aim at the following aspects:
- Providing the flow of work through various stages.
- Breaking the chain of the work in a manner so that no single person can handle a transaction from the beginning to the end.
- Segregation of accounting and custodian functions.
- Securing proper documentation at each stage.
- Specifying authority to enter into various transactions and for every action connected therewith.
- Recording the transactions in the books of account correctly.
- Safeguarding of assets.
- Making errors and frauds difficult.
- Fixing responsibility for the work and the responsibility for deviations.
- Building up a system to locate the deviations and departures from the prescribed procedures and to detect frauds and errors automatically without much loss of time.
- Elimination of conflicting responsibilities.
- Evolving standardized records.
- Providing account charts and the accounting manual.
- Preparation of periodical accounting and financial report.
- Making the work simpler as far as possible.
- Minimizing loss and wastage.
- Encouraging employees to do willing and good work.
- Discouraging employees from non-compliance with the prescribed procedures.
- Appraisal of the operations.
- Employment of persons of quality.
- Formulating a cut off procedure to separate transactions of two consecutive years.
Considering the above, the auditor needs to obtain reasonable assurance to state whetheran adequate internal financial controls system was maintained and whether such internalfinancial controls system operated effectively in the company in all material respects withrespect to financial reporting only. To state whether a set of financial statements presents a true and fair view, it is essential tobenchmark and check the financial statements for compliance with the financial reportingframework.
In the Indian context, for example, Appendix 1 “Internal Control Components” of (Standard on Auditing) SA 315, “Identifying and Assessing the Risks of Material Misstatement through Understanding the Entity and its Environment”, provides the necessary criteria for internal financial controls over financial reporting for companies.(Standard on Auditing) SA 315 in its appendix 1 sets out five components of Internal Control:
- Control environment;
- Entity’s risk assessment process;
- the information system, including related business processes, relevant to financial reporting and communication;
- Control activities relevant to audit;
- Monitoring of controls
The auditors are supposed to identify and assess risks of material misstatement at financial statement level, and at assertion level for classes of transactions, account balances and disclosures. Auditors are required to:
- Relate identified risks to what can go wrong at assertion level;
- Consider potential magnitude of risks in the context of financial statements;
- Consider the likelihood that risks could result in a material misstatement of financial statements
Here it is important to know what documentation should be covered. They are:
- Discussion among engagement team;
- Key elements of understanding obtained;
- Sources of information;
- Risk assessment process;
- the identified and assessed risks;
- Significant risks evaluated;
- Risks evaluated for which substantive procedures done
Auditors should use professional judgment to determine the extent of understanding required. Auditor’s primary consideration is whether the understanding that has been obtained is sufficient to meet the objective stated in the Standard on Auditing (SA). Evaluating the design of a control involves considering whether the control, individually or in combination with other controls, is capable of effectively preventing, or detecting and correcting, material misstatements. Implementation of a control that the entity is using it. There is little point in assessing the implementation of a control that is not effective, and so the design of a control is considered first. An improperly designed control may represent a material weakness or significant deficiency in the entity’s internal control.
Therefore, to sum up the discussion, certain points are to be noted in order to fix problems arising due to the non-compliance of the internal financial controls. For instance, the ‘three lines of defense’ model that is followed by the leading audit firm Ernst & Young LLP, provides a simple and effective way to enhance communications on internal financial controls by clarifying roles and duties.
- The first line is responsible for setting up the controls, mitigation of risk and defining policies and procedures to be complied with;
- The second line monitors compliance with the laid down controls. It is not an independent assurance function, but a monitoring tool for the management;
- The third line provides the independent assurance on the activities of first and second lines of defense;
- Audit committee and board of directors provide overall direction and oversight.
With the advent of globalization, businesses aspire to grow beyond their local, regional, national boundaries, and in the process they sometimes overstretch themselvesin terms of reading market opportunities andmanagement bandwidth. All businesses need capital to start functioning, and lack of capitalleads the businesses to go out of the marketplace. Funding can make or break a business. In order to manage the finances better, professional help is sought, which is when a CFO (Chief Finance Officer) is hired.
Nevertheless, the basic query remains whether to hire a CFO or not? In other words, when does the business really need to keep a CFO? It all depends on the financial circumstances of the individual firm/business.Theneed for a CFO keeps evolving throughout the life cycle of the business. Businesses in their early years are managed mainly on a one to one basis where the entrepreneur generally knows the customers and suppliers personally. They can gauge the firm’s performance by regular interaction with the firm.
However, as the business grows, the entrepreneur can no longer rely solely on those interpersonal discussions, and the need for a professional arises who can handle the financial picture forthe firm.There are mainly three factors that need to be considered by entrepreneurs to decide whether they need a CFO or not, namely:
- A COMPANY’S COMPLEXITY–
The company’s business expanse is a significant factor to determine as to have a professional or not. When then are fewer employees and not many work sites then situation will be under control of the entrepreneur but once the decision is made to expand the areas of work and further diversification then things become much complicated for the entrepreneur to handle alone. It is then that the need for a CFO arises.
- COMPANY’S SIZE–
Thesize of a firm can always make a difference about the decision to control the management process by the entrepreneur himself or to get professional help. Size does matter while making the big finance related decisions. Things may now start to complicate when all revenue related transactions, including payrolls and tax implications, are to be dealt withby the entrepreneur alone.
- THE PACE OF ITS FINANCIAL TRAJECTORY–
The changing financial landscape of a company be it slower or faster, needs a supervising professional to direct the finances towards efficient management of funds and available resources for the growth of the business. It helps to run the works of the business on qualitative information through systematic efforts directed towards a singlegoal.
The list of a CFO’s responsibilities gives an understanding about what things need professional supervision, namely:
- Developing strategies for investments, debt, equity and taxes
- Securing complex debt and equity funding
- Investing funds
- Reporting to the board of directors
- Negotiating and executing complex transactions such as acquisitions, mergers or large contracts
- Formulating a risk management strategy and managing risk
- Planning for large capital acquisition.
The business will need a CFO only when the above situations occur. In case of start-ups, it is better to have someone to act as controller, an accountant, or a bookkeeper.Once the start- ups business’ complexity, financial activity, or expenses have increased. It is then that a CFO will be required to advise on issues related to deploying cash in ways that will generate the biggest return on investment, identifying and negotiating strategic partnerships and/or major contracts, and preparing for board meetings.
Here the baseline is that once the start-ups start generating revenue it is only then that the requirement for a CFO arises. Before that, hiring a CFO might be a waste of precious resources.
In order to reduce the ever-growing demand for physical gold, the government of India through Prime Minister Narendra Modi launched the much-awaited gold related schemes to tap the festive season’s requirements. The schemes include ‘India gold coin’ bearing Ashok chakra, gold monetization and sovereign gold schemes. The gold monetization schemes (GMS) aims to tap house hold gold stocks of around 22000 tonnes, the sovereign bond scheme would help shift part of the estimated 300 tonnes of physical gold bars and coins purchased every year in the country for investment into demat gold bonds.
In India, people have been purchasing gold either for consumption i.e. to use in its own right, in form of jewellery, or as capital good in hope of using it in future indirectly funding consumption. Investors hold gold for a variety of reasons like as a store of value, a hedge against inflation and currency fluctuations, and as an insurance against uncertainties and tail risks. This may be a good reason for gold holders in India to give the gold schemes by the government a serious thought.
By launching these schemes, the government seeks to monetize the gold holdings in the country and reduce the country’s significant gold import bill, which is due to the incremental demand for physical gold. It aims to improve the productivity of the currently idle gold held by the public in India for purposes more productive for the economy in the end.
While the rupee has depreciated by 47% against the US dollar over the past five years, gold in rupees terms has appreciated by 28%. Consistent with this, there is a positive correlation between consumer price index (CPI) inflation and gold purchases. The gold monetization schemes are linked to the gold linked to the gold loan schemes, which would allow metal collected under the monetization schemes to be lent out to the jewellery industry.Indeed, gold is a preferred method of savings and investment, next only to deposits in bank accounts. Hence, in the implementation of these schemes, the banking system in India will play a very important role. In short, the various gold schemes launched by the government are as under:
- INDIAN GOLD COINS:
- The coins will be available in denominations of 5 and 10 grams. A 20 gram bar or bullion will also be available.
- The Indian Gold coin is unique in many aspects and will carry advanced anti-counterfeit features and tamper proof packaging that will aid easy recycling.
- The distribution of these coins will be through designated and recognised MMTC (Metals and Minerals Trading Corporation) outlets.
- GOLD MONETISATION SCHEME:
All Resident Indians can make gold deposits under this scheme. The minimum deposit at any one time will be raw gold i.e. in forms of bars, coins, jewellery excluding stones and other metals, etc.equivalent to 30 grams of the precious metal of 995 fineness. There is no maximum limit for deposit under the scheme and the metal will be accepted at the Collection and Purity Testing Centers (CPTC) certified by the Bureau of Indian Standards. Under this scheme:-
- Gold Monetisation Scheme can earn up to 50 per cent interest rate on their idle gold.
- Interest rate on Medium and Long Term Government Deposit (MLTGD) are 25 per cent and 2.20 per cent, respectively.
- The tenor of medium term would be between 5-7 years while long term would for 12-15 years tenure.
- The deposit under MLTGD category will be accepted by the designated banks on behalf of the central government.
- Interest on deposits under the scheme will start accruing from the date of convertingthe gold deposited into tradable gold bars after refinement or 30 days after the receipt of gold at the Collection and Purity Testing Centers (CPTC) or the bank’s designated branch, as the case may be and whichever is earlier.
- The principal and interest of the deposit under the scheme will be denominated in gold.
- The gold received under MLTGD would be auctioned by the agencies notified by the government and the sale proceeds will be credited to government’s account held with RBI.
- Reserve Bank of India will maintain the Gold Deposit Accounts denominated in gold in the name of the designated banks that will in turn hold sub-accounts of individual depositors
- SOVEREIGN GOLD BOND
Instead of buying gold in its physical form, investors can place their money in bonds backed by gold. The bonds will be available both in demat and paper form. It will have more or equal advantage against the physical gold. The bond will be issued by RBI on behalf of the Government of India. The bond would be restricted for sale to resident Indian entities and the maximum allowable limit is 500 grams per person per year.
Under this scheme:
- The RBI has fixed the public issue price of sovereign gold bonds at Rs 2,684 per gram.
- These bonds are issued in denominations of 5, 10, 50 and 100 grams of gold or other denominations.
- Only Banks and designated post offices, as may be notified, will sell the Bonds to the depositors/investors.
- The borrowing through issuance of Bond will form part of market borrowing programme of Government.
- Bonds can be used as collateral for loans. The loan-to-value (LTV) ratio is to be set equal to ordinary gold loan mandated by the Reserve Bank from time to time.
- Know-your-customer (KYC) norms will be the same as that for purchase of physical gold.
- The interest on Gold Bonds shall be taxable as per the provision of Income Tax Act, 1961 (43 of 1961) and the capital gains tax shall remain same as in the case of physical gold.
- Bonds will be tradable on exchanges/NDS-OM from a date to be notified by RBI.
- The Bonds will be eligible for Statutory Liquidity Ratio(SLR). Commission for distribution shall be paid at the rate of 1% of the subscription amount.
To sum up, certain factors make these gold schemes attractive to the masses. They are as given under:
- The interest on the bonds will be paid on the investment value. Even if the gold prices move up, the yield will be calculated on the investment value and not on the mark to market value.
- It will relieve investors of the need to check the quality of gold and with the valuation, no longer an issue; these bonds will be easier to be used as collateral.
- Investors of gold bars and coins may find it easier as a better investment than holding physical stock because it will offer the benefit of gold without any handling and storage costs.
- In case of gold bonds, the counter party is the government of India. If the price of gold increases, the government takes the risk of higher prices, if they fall, the investor would be given an option to roll over their holdings for an additional period.
As more and more women are going out to work, they face an increasing risk of being harassed or rather being subjected to some sort of sexual harassment. Sexual harassment at workplace is not a new thing. Sixty percent of working women have faced sexual harassment at some point of their working lives. For every woman who raises an outcry, there are hundreds who suffer in silence, quit their jobs or get transfers. For years, sexual harassment was considered as inescapable part of a working woman’s life.
Now, awareness is slowly raising that no woman should meekly accept sexual harassment as part of her life. Women should be able to feel comfortable in their place of work. If somebody is being sexually harassed, it can be reported to the authorities at their place of work or with local law enforcement agencies. In order to know what constitutes sexual harassment at workplace, we should understand what a workplace is.
There are two distinct types of sexual harassment:
- Quid pro quo, meaning seeking sexual favours or advances in exchange for work benefits and it occurs when consent to sexually explicit behaviour or speech is made a condition for employment or refusal to comply with a ‘request’ is met with retaliatory action such as dismissal, demotion, difficult work conditions.
- ‘Hostile working environment’ is more pervasive form of sexual harassment involving work conditions or behaviour that makes the work environment ‘hostile’ for the woman to be in. Certain sexist remarks, display of pornography or sexist/obscene graffiti, physical contact/brushing against female employees are some examples of hostile work environment, which are not made conditions for employment.
The Hon’ble Supreme Court of India has proactively taken up the issue of sexual harassment at workplace in the public domain via the judgment in Vishaka and others v. State Of Rajasthan and anothers (JT 1997 (7) SC 384). The supreme court recognised sexual harassment as a violation of human rights and a gender based systematic discrimination that affects women’s right to life and livelihood. The court defined sexual harassment very clearly as well as provided guidelines for employers to redress and prevent sexual harassment at workplace. It was observed by various courts from time to time in the past that the guidelines and the norms framed by the Hon’bleSupreme Court in this judgment have not been followed in workplaces strictly. The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on preventing sexual harassment as well as providing a redressal mechanism.
The government of India in consonance with provisions under Article 11 of the Convention On The Elimination Of All Forms Of Discrimination Against Women (CEDAW), enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013w.e.f. 9th Dec. 2013.This statute superseded the Vishaka guidelines issued by the Supreme Court in the year 1997. The act uses the definition of sexual harassment, which was laid down by the Vishaka judgment by the Supreme Court in 1997. The act is based on the idea that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.
The Supreme Court directive of 1997 clearly and unambiguously provides an answer to the question ‘What is sexual harassment?’ As defined in the Supreme Court guidelines (Vishaka vs. State of Rajasthan, August 1997), sexual harassment includes such unwelcome sexually determined behaviour as:
- Physical contact
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, for example, leering, telling dirty jokes, making sexual remarks about a person’s body, etc.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines what constitutes an act of sexual harassment in workplace. Section 3 (2) states that:
“Sec. 3 (2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:—
(i) Implied or explicit promise of preferential treatment in her employment: or
(ii) Implied or explicit threat of detrimental treatment in her employment; or
(iii) Implied or explicit threat about her present or future employment status: or
(iv) Interference with her work, creating an intimidating, offensive, or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety.”
While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces, which involve tele commuting, will be covered under this law.
The term ‘employee’ (Sec. 2f) includes regular, temporary, ad hoc, daily wage employees and persons who are working on a voluntary basis i.e. without remuneration. The term also includes contract workers, probationers, and trainees. The Act defines “aggrieved woman” (Sec. 2a) to mean:
- In relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
- In relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.
The issue of sexual harassment needs understanding, assessment, sensitivity and commitment from all quarters but mostly from the senior managerial authority as their commitment and action can achieve the aim of prevention and effective resolution of sexual harassment at workplace and a gender friendly, discrimination free workplace. The law will come in handy only when the people are sensitized about the implications of this problem. The victim has to be aware about their right to fight back. In the modern world, gender equality has to be consciously implemented. Harassment of any kind is not to be accepted. Mute acceptance is not the answer,gender sensitisation is.