Notwithstanding the public spat, this battle is not about corporate governance or ethics alone.
This dharmayudh is about deciding who will inherit the Tata Empire!
One must hand it over to Cyrus Mistry for a well articulated statement on December 19. Video and interviews were used to create maximum impact. The decision to resign from the boards of listed Tata Group companies took all by surprise. If only Mistry had reflected and resigned earlier his camp might have been on a stronger wicket today.
Mistry made his point in the video and said a lot in a few words. This article tries to decode the statement, give historical perspectives and make related points. It is not the author's intent to take sides.
Here are the key points he made:
1. "Over the last five decades my family's steadfast support for the Tata Group has been one of guardianship."
We first need to know how the Mistry family acquired a stake in Tata Sons.
In 1936, Shapoorji Pallonji Mistry (grandfather of Cyrus Mistry), bought a 12.5 per cent stake in Tata Sons from the heirs of F D Dinshaw, who was a friend, adviser and lender of last resort of the Tatas. This stake was given to him in lieu of loans given to bailout Tata companies. An additional 5 per cent stake was sold by JRD Tata's siblings to S P Mistry. This took his stake to 17.5 per cent. Rights issue in 1996 took the stake up to 18.5 per cent. Source: A Short History of Tata Sons Ownership.
Did Tatas like the Mistrys having a stake in Tata Sons? Who benefitted from this association?
The late Jehangir Pocha, co-promoter INX News, wrote in Forbes India, "But JRD was incensed at Shapoorji’s “intrusion” into Tatas. He got even more infuriated when Shapoorji proceeded to buy further stakes in Tata Sons from his siblings, Sylla and Darab Tata."
Pocha adds, "The Mistry’s fortune crossed a billion dollars under Pallonji, and one reason was his better ties with Tatas. This allowed the Mistrys to gain several Tata agencies and win lucrative contracts from Tata companies such as Tata Power. Pallonji also appeared to have the Right of First Refusal on Tata businesses, buying companies such as Forbes & Company when Tatas exited them." Read: Tata Sons: Passing the baton. The Mistrys gained immensely from the listing of TCS, more on that later.
From the above, it is clear the Mistrys bought shares in Tata Sons as investors and JRD Tata was unhappy to have them as shareholders and the Mistrys benefited from their association with the Tatas. It is not widely known what is the nature of 'guardianship support' provided.
2. "It is now clear that my attempt to protect and preserve the ethical legacy of our founding father, Jamsetji Tata, was the real cause for my ouster."
By this statement, Cyrus Mistry is positioning himself as a torch-bearer of Jamsetji Tata's legacy and possible inheritor of the Tata Empire in the post Ratan Tata era. Smart move. This statement is similar to those made by politicians, who want people to see them as inheritors of say Nehru's, Patel's and Ambedkar's legacy.
3. "The pursuit of good governance and ethical business seem to have caused a serious discomfort in some quarters."
Without doubting the seriousness of some of the issues raised, again very clever positioning by Mistry. By raking up the issue of 2G spectrum scam, he is hitting Ratan Tata where it hurts. Having said that, during his 10-year stint as director of Tata Sons, Mistry was not publicly and consistently perceived as a champion of corporate governance.
4. "In recent weeks, I have brought to the fore various ethical issues and evidence of governance breakdown in the Tata Group at the hands of certain trustees."
Without getting into the alleged wrongdoings by certain trustees, Mistry knows that the key to ownership of the Tata Group lies with Tata Trusts. By forewarning the trustees that they too could be embroiled in the legal battle that has begun to unfold he has put them on notice. The first move was made on 20 December when the Mistry family investment firms moved the National Company Law Tribunal against Tata Sons, its directors, Ratan Tata, Tata Trusts and its trustees.
5. "I had also tabled a forensic report containing findings of fraud and wrongdoing at AirAsia India for discussion at the 24 October board meeting."
This statement is damaging and requires a detailed response from the Tatas.
Since Tata Airlines, rechristened Air India in 1946, was nationalised in 1953, one can empathise with the Tata's desire to own an airline again but did the powers that be not realise that investing in low cost AirAsia would upset independent director Nusli Wadia, who runs a competing Go-Air.
One does not antagonise long-time associates by entering competing businesses. Notwithstanding Wadia being called India's corporate samurai because of battles with the Ambanis and Rajan Pillai, his current stand might also be a result of such insensitivity.
6. "As a large shareholder of Tata Sons and a proud long-term partner, my family will also equally suffer this pain."
The choice of words 'long-term partner' is interesting. The article earlier explained how the Mistrys acquired shares of Tata Sons. Can that be considered to be a partnership? Is there any statement by JRD Tata, who was group head from 1938-1990, which states that the Tatas and Mistrys were partners?
7. “I will work on protecting the interests of the Tata Group and realising the vision of our founder, Jamsetji Tata, until my last breath.”
This statement reminds me of former prime minister Indira Gandhi, who days before her assassination said, "I shall continue to serve until my last breath and when I die, I can say, that every drop of my blood will invigorate India and strengthen it."
People who work for upholding company interests and live by certain values let their actions speak and rarely make public declarations to that effect. By making this emotional statement Mistry might have lost many admirers.
A few more interesting observations.
According to a Business Standard report of 20 December, Mistry is quoted as, "My fight for governance in Tata Trusts and Tata Sons will continue. I stand by my statements that both the entities need clear governance and succession structures. Tata Trusts should operate on the same principles as any international trust with appropriate governance and succession planning and how they engage with Tata Sons. Tata Trusts have to evolve similarly and professionalise their operations."
Mistry is well within his rights to ask for an appropriate framework through which the Tata Trusts and Tata Sons work. Having said that, how do governance and succession planning in Tata Trusts affect Mistry and his family's interest? Are they stakeholders in the Tata Trusts! Or is Mistry also batting for his sister's husband, Noel Tata, who might be peeved at not even being a trustee in any Tata Trusts.
Clearly, there is a lot more than what meets the eye. According to another Business Standard report of 20 December, Tata Trusts controls 66 per cent of Tata Sons and wielded no voting power until about 15 years. Did this change happen without the concurrence of the Mistrys? Importantly why did things change?
The answer, perhaps, lies somewhere in what Jehangir Pocha wrote, "During the 1990s IT boom, the Mistrys wanted to list TCS, a wholly-owned subsidiary of Tata Sons valued at a stupendous $50 billion. But Ratan Tata demurred. TCS was a cash cow Tata Sons used to up stakes in other companies. Taking TCS public would have restricted the manner in which its huge profits could be used.
“When Ratan Tata finally agreed to selling 10 per cent of TCS to the public in 2003, he cut a deal with the Mistrys that gave the Tata companies and trusts greater say in Tata Sons. He did this by getting Tata Sons to announce a buyback of up to 20 per cent of its shares.
“The trusts announced they would not participate in the buyback and hold onto their shares. This resulted in their shareholding in Tata Sons going up to 68 per cent.
The Mistrys agreed to participate in the buyback, which brought their shareholding in Tata Sons down to 18 per cent. In return for not participating in the buyback, the trusts and Tata companies got TCS shares that yielded them huge profits when the company listed. The deal enhanced the trusts’ say in Tata Sons and ensured that Tata shareholders, who participated in the controversial 1996 rights issue were rewarded." Read more here.
From the above it appears that the Mistrys, in lieu of listing of TCS, gave Tata companies and trusts a greater say in Tata Sons.
All TCS shareholders, Mistrys included, gained from the listing. According to this 2015 report, "The value of Rs 850 invested in TCS in August 2004 would have gone up to Rs 9,904.8 (stock price of Rs 2,476.20x4 bonus shares) based on Friday's closing price. This turns out to be a return of 1,065 per cent over the last 10 years or a CAGR of 27.8 per cent. This return is over and above the dividends paid by the company."
It would be interesting to know the rate of return on Mistry family's investments in Tata Sons and market value of their shareholding in Tata Sons and TCS as compared to original investment.
Notwithstanding the public spat, this battle is not about corporate governance or ethics alone. This dharmayudh is about deciding who will inherit the Tata Empire!
Disclaimer: This article shares insights without intending to sit in judgement and is not intended to be a critique of the parties involved in the current dispute. Mistry's quotes one to seven are taken from DNA India.