Practising Company Secretary - A Versatile Professional

The rationale "When you know better, you do better" holds true in the case of the company secretary, who is recognized as the compliance officer of the company. A company secretary is a professional who possesses well-polished knowledge about the business and corporate laws of the country and thus is the most trusted person to ensure an organization's adherence to statutory, legal, and regulatory compliance requirements.

In this article, we shall be discussing the plethora of services that a company secretary can render and the forums wherein he can appear and represent a client.

SCOPE OF SERVICES

The scope of services for a Practising Company Secretary (hereinafter, "PCS") extends across a wide range of administrative, legal, and governance-related functions aimed at ensuring that the company operates efficiently, transparently, and in accordance with all relevant laws and regulations. The various services/roles of a company secretary in practice are as follows:

• As a project manager: A PCS is a competent professional to advise, manage, and perform various statutory, legal, and regulatory functions in various stages such as pre-incorporation and post-incorporation. He/she contributes to the promotion, formation, structuring, documentation, and incorporation of companies and further helps in choosing the type of company, availability of name, drafting of Memorandum and Articles of Association and other documents, and their stamping and registration with the Registrar of Companies.
• As a Compliance Officer for MSME Sector: The MSME Sector is the backbone of developing economy. It requires correct guidance and support in ensuring various compliance requirements, corporate governance, and overall management of the corporate affairs of the organization. That's where a company secretary plays a crucial role.
• As a secretarial auditor: A secretarial audit report, given by a PCS in Form MR-3, is mandatory to be annexed to the board report of every listed company and prescribed companies in view of Section 204 of the Companies Act, 2013.
• As a Strategy Manager/Advisor: Whether it is raising of funds vide private placement of shares, buy-back of securities, or planning strategies for amalgamation/merger, acquisition, takeover, spin off, reconstruction, reorganisation, restructuring and winding up of companies or for that matter even Advising on foreign collaborations and setting up of joint ventures abroad, a Company Secretary guides and formulates strategy to achieve the goals of the organisation and advises to his/her clients how to achieve growth in the business.
• As Scrutinizer in the e-voting process: Scrutinizer means a person who independently and in a transparent manner monitors the entire process of e-voting and finally gives his/her report to the Chairman of the Company with the status of the resolutions put for voting. There are provisions under the Companies Act, 2013, which authorize a company secretary to act as a scrutinizer, viz., Section 108 (Company Secretary as Scrutinizer in e-voting), Section 109, and Section 110.
• As a CSR Planner: A company secretary plays a pivotal role in the CSR spending of his/her clients. As he/she gives advice to the clients about the areas to spend the CSR funds, prepares the CSR policy of the company, and helps the client companies to create a positive impact in the minds of the investors, regulators, and public at large through the CSR initiatives. Thus, PCS can no longer be considered just a professional for certification services or as an advisor, but at present he/she is considered a multidisciplinary professional who deals with the various aspects of business and corporate laws, finance, taxation, international trade, foreign collaborations, etc., and helps to meet the statutory, regulatory, and legal compliance.

REPRESENTATION POWERS

In light of the recent trends and the ever-emerging and updating business practices, a good opportunity has emerged for a PCS to apply his/her skills and expertise, excel in his/her career, and create value for their clients as well as for the whole CS profession. The list of forums where a company secretary can represent his/her client is listed as below:

As an arbitrator or conciliator, Section 43J of the Arbitration and Conciliation (Amendment) Act, 2019, at clause (iv), provides that a company secretary within the meaning of the Company Secretaries Act, 1980, having ten years of practicing experience as a company secretary, may be appointed as an arbitrator. Thus, PCS plays a significant role in Alternate Dispute Resolution (ADR). As an arbitrator or conciliator, he/she can resolve disputes or negotiate and counsel clients in various commercial contracts and disputes.

As an Authorised Representative: Section 432 of the Companies Act, 2013 deals with the right to legal representation and provides that the applicant or the appellant may either appear in person or authorize one or more Chartered Accountants or Company Secretaries or Cost Accountants or legal practitioners or any officer to present the case before the Tribunal or the Appellate Tribunal, as the case may be. Similarly, a PCS can appear before the following regulators or forums as listed below:

• National Company Law Tribunal (NCLT)
• National Company Law Appellate Tribunal (NCLAT)
• Competition Commission of India (CCI)
• Debt Recovery Tribunal (DRT)
• Debt Recovery Appellate Tribunal (DRAT)
• Central Government
• Regional Director
• Registrar of Companies
• MRTP Commission
• Consumer Forums
• Securities Appellate Tribunal
• Central Excise authorities
• Wealth Tax Authorities
• Customs Authorities
• Income Tax Authorities
• Central Electricity Regulatory Commission
• Gujarat Electricity Regulatory Commission
• Telecom Disputes Settlement (TRAI) and Appellate Tribunal, BIFR.

As a valuer of financial assets, the Companies (Registered Valuers and Valuation) Rules, 2017 ("Valuation Rules") have provided an emerging area of practice for the company secretaries in the field of the valuation of securities under various laws. In light of the same, ICSI has established a registered valuer organization, which is a wholly owned subsidiary of ICSI and is registered with the Insolvency and Bankruptcy Board of India (IBBI). This organization provides registration as a registered valuer to the member of the ICSI and training to members from time to time.

As an insolvency professional, a PCS having ten years or more of experience may register himself/herself as an Insolvency Professional (IP) after passing the limited insolvency exam conducted by the Insolvency and Bankruptcy Board of India (IBBI). Thereby, he/she may help his/her clients for revival, wind-up, or take-over of the company already under insolvency proceedings or may act as a resolution professional.

As a technical member of NCLT: A PCS can be appointed as a technical member of NCLT, provided that he/she has 15 years' work experience as a company secretary in whole-time practice. Thus, in light of the above, it can be said that the company secretary is a "mentor" to the client and assists them in reducing client complaints and potential hazards of unintentional non-compliance with the law.

CONCLUSION

At one end, while it may be exciting for a company secretary to explore the plethora of services it is eligible to offer owing to its core competency, at the other end, it is equally challenging as the corporate sector is facing new challenges, ever-increasing regulations, and the role of artificial intelligence in business, etc., increasing the compliance burden of the businesses and corporates.

The PCS must now also be ready to undertake new challenges and emerging areas of practice due to technological developments and the entry of artificial intelligence into the business.

Disclaimer: This article provides general information existing at the time of preparation and we take no responsibility to update it with the subsequent changes in the law. The article is intended as a news update, and Affluence Advisory neither assumes nor accepts any responsibility for any loss arising to any person acting or refraining from acting as a result of any material contained in this article. It is recommended that professional advice be taken based on specific facts and circumstances. This article does not substitute the need to refer to the original pronouncement.