Mr. Prohit engaged in a thought-provoking conversation about a case where he changed the Employment law of England & Wales, with Ms. Apoorva Mehta, Executive Manager at Legal Desire Media and Insights.
- You have specialized in many areas of law, Can you tell us about your journey as a law student?
A: I have grown up in a house filled with lawyers. My Grandfather was from the First Batch of Company Secretary and an LLM Gold medalist, my Father was a certified Internal Auditor and LLB graduate and he worked as an advisor to numerous business houses and consulates. My other paternal uncles have all been practicing in the field of law providing legal consultation and litigation. As they had diversified work and areas of expertise within the field of law, this always irked my curiosity that even when it is just one subject of law there are so many different fields within the law. Being around them started to expose me and give me an overview and understanding of the different fields within the law.
My father always advised and guided me saying that “It Is Important To Understand Your Rights As A Citizen And To Safeguard Those Rights And I Would Be Better Equipped To Do The Same When I Am Have Studied Law”. This understanding solidified when I started working as a lawyer. So it was my father who had embedded this idea of the importance of becoming a lawyer in my subconscious since I was a child, however, he let me carve my own path.
- How was your journey before you stepped into law as a graduate in chemistry?
A: I was always keen on becoming an Entrepreneur and/or Self Employed individual.
I have been fortunate that I got the chance to complete my undergraduate degree majoring in “Chemistry and Industrial Chemistry (Vocational Course by UGC)”, which exactly gave me the skills to achieve the ambition of becoming an entrepreneur.
The course was designed and it trained me to get an overview of Management skills and its practical applications in the workplace, whilst at the same time, I was equipping myself with the knowledge by studying Chemistry and Industrial Chemistry.
The course was designed for making Entrepreneurs and it can be summarized as a leadership program.
I started working as a Management Trainee in Simplex Mills. I was asked on my first day where do you see myself in the future and I advised that I want to be sitting and have my own company. I was fortunate enough to be groomed by the owner, Mr. Nandan Damani himself, a man of immense knowledge, vast experience, and resourcefulness. Under his guidance, I was able to equip myself with the working of the different departments of the entire Mill and understood the working of a very complex organization.
- Can you tell us about learnings and experiences from the same and how did they help you in your legal career?
A: Whilst I was working with Simplex Mills Co. Ltd., I learned how each and every department worked and how the purchase department was linked to the functioning of the sales, and how the finance department was an integral part of the cash flow management and fund allocation. This encouraged me to take a course in the field of Finance and when the opportunity came about I took up a part scholarship and undertook a course in Finance in the United Kingdom.
I didn’t realize it till I started working in the field of Law, that having a science background certainly gave me an edge over other lawyers who are not from a science background. It helps me to understand forensic sciences and it has equipped me to have more deductive, logical reasoning and technical understanding. At the same time, the management skills help me understand the functioning of a company and its operations.
Now when I am handling complex cases, be it civil or criminal I am aware of the functioning and working of the entire organization. Also, the fact that since I have got an understanding of the banking and financial working of the international markets, this, in turn, makes it easier for me to understand and evaluate how the financial products and investment opportunities like the FCCB are used and misused by the companies.
Looking at the critical work that I am doing in decoding the manner in which the funds are invested outside India, I have been approached by the Economic Offences Wing (EOW) and the Crime Branch to consult them from time to time on complex financial fraud matters. I have also prepared numerous Letter Rogatory to assist the EOW and assisted them in procuring evidence and witness statements from outside India as part of the financial fraud investigation.
- What made you decide that after doing a master’s in banking and financial laws, criminal justice is something which you have to pursue ahead as LLM, and how has it helped you in your career?
A: After completing my undergraduate degree I got a scholarship to do a Masters in Banking and Finance from United Kingdom (UK), however after completing the course I felt that there was a huge gap in compliance and regulatory work which could easily be undertaken and I could contribute and make a difference. I took the opportunity to merge my finance, management skills with law and was very happy with my decision.
My father was unwell, so I left the UK and I decided to return to India. I wanted to have continuous professional development and I decided to pursue another Master’s Course in Criminology, as I had the grades working in my favor. Also, since I was working on some of the headline cases of financial frauds in India with my colleagues and friends, I found that it was very easy to comprehend my management skills, merge them along with my legal skills from UK and India, and as I was working on numerous cross border financial fraud cases doing the LLM in Criminology was the most logical option.
In some cases, I had also seen that the clients were not happy with the lawyers as their cases regarding financial fraud overlapped civil and criminal cases. So I needed to take advantage and strategically place myself in that bracket and the qualification really helped me achieve my goal and helped me deliver better advice to my client.
I found that I was in a better position to not only be able to understand the financial products, however, at the same time I was able to disseminate and reproduce the satisfactory explanation on the client’s applications. This had helped them immensely.
This has helped me to become more organized, structured, methodical and with these skills sets and a winning attitude, I have been able to consult and represent some of the prominent cases in the Financial Fraud sector in India.
Nowadays, There is clearly been a trend of having a boutique law firm and my aim has always been to approach the client and give them a holistic view of their legal case. As many times the client approaches the advocates and they are not aware of the possible legalities involved in the matter from the civil or criminal side and they have pushed around from one firm/lawyer to another where they are only advised that the things are going to be done, without going into details with the procedure about how it is being done. Since I had observed this and I decided to change this approach so I made it a point to make the clients aware of the case, the law, and the strategy to approach it. At the same time, I am educating them about their legal position and enabling them to make cogent and educated choices and give appropriate instructions to me. This ipso-facto helps me in getting prepared and strategizing for the case in a more organized manner.
- Talking about your recent case where you changed the Employment law of England & Wales, can you tell us more about the case?
A: When I was studying Law in the UK, I had applied for a job for a training contract, I was advised by the career counselor, my then law professors that since I was not a UK National therefore I was not allowed to work as I did not have a Work Permit even if I was the Best Candidate on Merit.
Being disappointed with their explanation, I approached some of the local lawyers in UK and Law firms and well-established lawyers in India, however, they were all against even hearing my suggestion that “the selection has to be based on merit.”
I spoke to my father, he advised me, “If what you feel and what you are doing is correct then there is no reason for you to stop and you should “Fight for your Right”!
So only with the support of my parents and no law firm prepared to represent me, I know the risk that if I lose then I will not get employed anywhere in the UK.
I still went ahead and made an application for a training contract job and I was immediately rejected within 2 minutes stating that since “I did not have a work permit, I was not eligible to even be considered for the job and to apply I had to have a Work Permit or be a UK/EU National.”
I was disappointed with this approach as UK considers itself to be a torchbearer in Anti Discrimination Laws, however, there is a deep-rooted Indirect Racial Discrimination, which was actually very difficult to prove.
It is important to understand that, ‘It is the duty of the employers to apply for a Work Permit and not the Employee or the Applicant to come with a Work Permit to apply for a job.’
Their criteria for recruitment which was being followed was that first they had to do a Resident Job Market Search, Offer the jobs first to UK, EEA National, then try to train them and offer the job, and if not possible to find a suitable candidate then invite candidates from other countries. So the process of consideration of applicants on merit was not there.
The law firms and other companies were using a procedure where they were segregating the applications of applicants who did not have a work permit and automatically rejecting their applications without even considering their merit, even if the candidate was the best and most suitable for the job advertised.
The argument forwarded by myself was the UKBA is not going to question the candidate who has been selected on merit and they only need to get satisfied that the company has followed the appropriate criteria and done the selection based on their requirement of the job profile. The UKBA cannot tell the companies who the company has to employ and who not to employ, it was at the decision of the company who they select as per their own internal requirements. Also, the fact that the candidates were segregated and rejected automatically clearly shows that there was no merit ever taken into consideration. Furthermore, there was a code of practice of racial equality in employment which clearly made it mandatory that recruitment has to be based on merit and the requirement of Work Permit should be considered at the final stages. The law firms were misinterpreting the law and advising their clients to do the same and this procedure is followed by the entire country was illegal and bad in law. This explanation was forwarded and accepted by the Tribunal and the reasoning had demolished and destroyed the explanation, reasoning, and the entire case of the law firms.
I filed a case against the Law firm and took the top ten law firms to court and defeated them single-handedly as no one was prepared to represent me so I had to fight my own battle.
The Law Firms were being represented by prominent Queens Counsel (QC) the best the money can buy, however, they had to accept defeat with the logical explanation provided by myself before the Employment Tribunals. Even after making statements before the court that they are satisfied with the decision and they are not going to appeal, the Law Firms appealed on the last date of limitation and once again they lost the case as I was able to successfully defend my victory before the Employment Appellate Tribunal, London.
The law firms were unable to get the leave to appeal to the Court of Appeal or the House of Lords, and therefore the victory of my case became a Landmark Ruling in the case of Indirect Racial Discrimination in the field of Employment in the United Kingdom.
Thereby, I managed to single-handedly change the entire recruitment process in all fields of employment not just limited to the legal jobs. And thus this case has changed the entire course of the employment system of the United Kingdom and removed the Indirect Discrimination Policy practiced for over 100 years.
It is therefore considered to be a LandMark Case as not only did the entire countries recruitment procedure change for all areas and fields of work but since it was a law student who had proved Indirect Racial Discrimination being deep and an integral part of the recruitment system in the United Kingdom it was something to be reckoned with.
The case has been since then reported on the United Kingdom Border Agency (UKBA) website, their code of practice and guidance material for all companies. At the same time, all big companies’ websites and recruitment websites had to change their recruitment procedure, as now it has become trite law, “that the recruitment of applicants has to be made on their merit and the condition imposed to reject applicants for not having a work permit is now discriminatory and attracts unlimited damages.”
- Which case would you consider being really close to your heart?
A: I feel the first case of changing the law of the United Kingdom is always going to remain close to my heart, however, there have been other cases which have been very testing like Geodesic, Harshad Mehta Group, Qnet, etc., which gave me the chance to really introspect and contemplate the interpretation of the law and try to bridge cross border legal provisions.
- In your opinion, how critical international relations and foreign policy of every country becomes and what kind of role do they play when we talk about financial and securities law?
A: It is germane to understand the role of International Relations, and Foreign Policies, where on one end it appears very simple which is read in the newspaper and law books, on the other hand when there is an application on law the prospective changes totally.
There are reciprocity agreements with numerous countries and India. This has to a certain level enabled the investigating agencies to track down some of the individuals/accused who have been committing financial fraud and escaped from India. As these types of frauds affect the economy and deprive others of the rightful support from the Government, they have to be taken very seriously and the most severe of legal provisions should be used to reprimand them.
The securities laws too have been amended and made stringent from time to time, however, they are dependent on compliance and discloses made by the company, the teams working in the vigilance are overwhelmed with the number of companies who are defaulting in compliance and irregularities.
Also, the fines imposed for these violations as compared to the quantum of fraud and irregularity should be adequate and proportionate to deter delinquent, fraudulent and reckless actions by the companies on the exchange.
In my humble opinion, there clearly needs to be more accountability, compliance, transparency and mandatory disclosures to be made by the companies and individuals as that is what is going to curtail the abuse of the system. The audit reports are required to be more transparent and not merely sample-based as every auditing firm can go and take a different sample and come back with a different result for a company.
It is an admitted position that there is an abundance of lawyers in our country and at the same time there are many good lawyers who specialize in immigration laws and cross-border investments. However, there is no way of the lawyers knowing where the clients have amassed their earnings and if it has been through abusing the process and system. The clients take advantage of the legal provisions and make an exit and remit the funds out of India this is what is hurting the economy. By the time these issues surface the culprits have already left India and in order to bring them to justice and ensure that the faith in the system is not shaken it is imperative to have stringent laws in place and have good International Relations and Foreign Policies which will help bring the culprits to justice.
- What will be your advice to Indian lawyers and law students wanting to work as legal advisors?
A: It is imperative that the law students learn to adapt themselves to the different laws in India, the international laws, international treaties, case laws, and most importantly the procedural law. Most of the arguments advanced are always based on local cases, however, some cases require a deeper and thorough understanding of the international treaties and how they have been instrumental in shaping some of the laws in place.
Law students need to understand what field of law do they intend to work in, litigation or inhouse or corporate law. The only way they can understand this is by interning during their college and learning a more practical based approach towards their area of specialization.
It is undeniable like most other fields of specialty there clearly is a need for good lawyers globally. As the world becomes more connected and a smaller place, the times have changed and in India, there is a rise in demand, especially for transborder litigation and transitional litigation work ranging from commercial contracts, transfer technology to criminal law where the requirement of raising Letter Rogatory (LR’s) for collecting evidence and recording evidence out of India by the investigating agencies in criminal matters to the extradition of criminals back to India.
So once the law students have had a good exposure to work in the field of the law and started to handle cases by themselves then they would be better placed to advise clients, rather making a mistake of trying to learn at the expense of clients’ cases.
- What kind of co-curricular activities are vital for law students to not miss during graduation?
A: There is a clear requirement for practical-based education of the students, which is clearly been missing in India.
I suggest to law students that they need to ensure that they should be prepared to do some part-time work experience and intern with some good lawyers.
Also, there is a need for being a good researcher and a voracious reader.
It is not always working on the big cases that a law student can learn everything. Merely starting to understand the procedural work of filing normal pursuits or applications in court is adequate enough to ensure that the fundamental principles of the students are getting strong from a practical point of view.
During the time I was studying in the UK, I observed that most of the studies were practical based and they encouraged students to apply for training contracts 2 years before the graduation is even over. So the far-sightedness in the students and preparation before entering into the legal field is already embedded into their normal routine.
Students are encouraged to be more organized there is a training contract which allows students to work with different streams in the law firm for 6 months each and by the end of the 2 years, they have had a brush of working extensively in 4 areas of law, so they can finally decide where are they most happy and be able to deliver better results. This encourages productivity and involvement of the students as they are making career path choices in the field of law after actually spending some time over there.
The most important and unique thing that I observed studying law side by side to students who had passed out from Oxford And Cambridge was one they were from different fields of undergraduate degree ranging from music to accounting, the second was their ability to read many books and retain that information and third was they would always come prepared with critical reviews and evaluation on a subject matter. To match up to them I had to put in uncountable hours and was starting to understand how they have been groomed differently from the students in India and other universities.
In India, there is another observation that I have seen is that rather than making the students fill workbook journals which are usually copied from their seniors, the students should be encouraged to make their own research and submit papers. This will encourage two things, voracious reading skills and critically evaluating a subject matter.
The students in India are always anxious to work in the High Court, however, in the bargain, they tend to miss out on the real essence of learning law and they are all attracted to the glossy appearances of the High Court. Whilst working in India, in my humble opinion as it was also suggested to me by my father and leading Sr. Counsels and High Court Judges that once the law students graduation is over, the students who intend to work in litigation, should at least work for 2-3 years under a good trial lawyer in the City Civil and Sessions Court or Small Causes Cause, as this will throw them into the deep end and make them appreciate the art of trail. Once they are well equipped with these skills then they are prepared to go and deal with other types of matters, like Revisions, Reviews, Writ Petition, etc.,
- What is your Mantra for life?
A: My father has always guided me stating these principles:
“Fortune Favours The Prepared Mind”
“If you believe in something then always be prepared to take a stand for it, however, objective evaluation is a MUST.”
AND
“Work Hard, as there is no Surrogate for Success.”
- If not for the law, what did you see yourself pursuing?
A: I would love to teach students and professionals.
I would have really been happy being a teacher, as I love to teach and share knowledge. The thought that there is always a requirement to give something back to the community and be a part to shape and mold the future, makes me really happy in an inexplicable manner.
Therefore, I would say to a certain extent I have been blessed and fortunate that I have had the opportunity to keep on giving lectures to law students, and at the same time, I am actively involved in training the Cyber Crime Unit and other departments of Law.
