ORDER A.K. Sikri, J.
1. The petitioner in this case is challenging his transfer from Delhi to Mumbai office of respondent bank and seeks quashing of transfer order dated 20.10.1999 by which this transfer was effected. The transfer is challenged on twin grounds : (a) it is mala fide and (b) it is in contravention of his terms of appointment. The averments made in the petition forming the basis of aforesaid challenge may be summarised in the first instance. On 16.9.1992, respondent No.1 bank applied to the Securities Exchange Board of India (hereinafter referred to as the SEBI) for grant of registration as a Merchant Banker under the provision of SEBI (Merchant Bank) Rules and Regulations 1992. In 1993 the respondent bank submitted curriculum vitae/bio data of its various personnel working with the bank to the SEBI for approval of its Merchant Banking Division. Vide its communication dated 1.11.1994, SEBI informed the respondent bank, that although the bank was eligible for grant of certificate of registration as Category I Merchant Banker, but subject to the condition that the bank, strengthened its manpower with minimum of two persons having adequate hardcore experience in Merchant Bank activities. By way of the said letter, SEBI further directed the bank to make the said recruitment within 30 days and thereafter furnish particulars of its key personnel in order to obtain the necessary clearance, before taking up any assignment as a Merchant Banker. In 1995, pursuant to the directions of the SEBI, the respondent bank advertised in the National Dailies inviting applications for recruitment to the post of 'Chief Manager' Merchant Banking Division for their proposed Delhi/Bombay offices. Apropos the said advertisement on 7.4.1995, the petitioner who is a qualified Law Graduate and MBA, with vast experience in activities relating to Merchant Bank, applied for the said post at the Delhi office of the respondent bank. The petitioner alongwith one Shri K.A.Salaria were selected. On 7.7.1995, the petitioner was appointed as Chief Manager in the Merchant Banking Division of the respondent bank at Delhi and was directed to report for duty to the Deputy General Manager, J & K Bank Ltd. Delhi. On 16.8.1996 the petitioner accepted the terms of appointment for Delhi and accordingly joined as Chief Manager, Merchant Banking Division of the respondent bank at Delhi. Pursuant to his joining the Merchant Banking Department of the Divisional Office of the respondent bank in Delhi, the petitioner has been relentlessly and arduously handling various merchant banking activities for the respondent bank which among others included several public issue, project appraisal, RBI and SEBI inspection for the years 1995 to 1998 accounting and reconciliation work, post public work with regard to various Stock Exchange etc. However as Mr.K.A.Salaria who was selected for Mumbai office did not join the respondent bank, Merchant Banking Division (MBD for short) at Mumbai was never incepted.
2. While the petitioner was working in MBD of Delhi office, he was served with order dated 1.4.1999 transferring him to Central Office of the respondent bank at Srinagar. It was transfer to non-MBD of the bank. Petitioner filed CW No.2578/99 challenging this order of transfer on various grounds including on the ground that petitioner could not be transferred to non-MBD and as per terms of appointment letter, he could be posted only in Delhi and Mumbai. On 28.4.1999 while issuing show cause notice in the said petition, this Court granted the stay of the operation of the transfer order dated 1.4.1999. As respondent did not appear in this case, it was proceeded ex-parte by order dated 9.8.1999 and the matter was listed for final arguments on 25.1.2000. However on 13.10.1999 application was filed by respondent bank for setting aside ex-parte order dated 9.8.1999 on the plea that transfer order dated 1.4.1999 had been withdrawn and that petitioner vide order dated 4.6.1999 had been posted in the Delhi office of the bank in Karol Bagh. Petitioner's case is that he was never served with such order dated 4.6.1999 and he was surprised to know this fact from the application dated 13.10.1999 filed by the respondent. However within a week from receiving the aforesaid application dated 13.10.199, petitioner received another impugned order dated 20.10.1999 posting the petitioner at area office Mumbai. Petitioner was served with relieving order dated 8.11.1999 pursuant to the aforesaid order dated 20.10.1999 and he filed CM No.13765/99 in CW No.2578/99 seeking stay of the operation of implementation of this order. On 7.12.1999, interim order was passed staying this transfer as well. Thereafter respondent filed reply to this CM and petitioner also filed rejoinder. When the matter was heard again on 17.2.2000, the petitioner withdrew CW No.2578/99 as it was essentially filed challenging the order dated 1.4.1999 and impugned order dated 20.10.1999 transferring the petitioner to Mumbai was a different cause of action. Permission was granted to the petitioner to file substantive writ petition separately challenging the order dated 20.10.1999 and interim stay granted earlier staying operation of order dated 20.10.1999 was directed to remain in operation for a period two weeks. The petitioner accordingly filed the present petition challenging the impugned transfer order dated 20.10.1999.
3. The impugned order is challenged by raising the following contentions:
1) The terms of appointment clearly lay down that the petitioner could be transferred to the branches/offices of the respondent bank only within the cities of Delhi/Mumbai, provided the same is within the merchant Bank Division.Hence the present transfer order which has been passed in contravention of his terms of appointment is therefore bad in law. The respondent bank had, in fact, recruited the petitioner for Delhi. Thus the petitioner was to be stationed only in Delhi. The said order dated 20.10.1999 transferring the petitioner from the Merchant Banking Division of the bank in Delhi to its Area Office in Mumbai, which does not have a Merchant Banking Division is clearly outside the scope of his appointment. The petitioner was specifically appointed as Chief Manager, Merchant Banking Division pursuant to the directions of SEBI, and his services were, therefore meant only for its Merchant banking Division and not for its ordinary/general banking activities. The petitioner who has experience in Merchant Banking activities was recruited by the respondent bank, specifically as the SEBI made the same mandatory for grant of registration to the bank as merchant Banker. Hence, his transfer/posting to an ordinary Banking Division of the bank is in violation of his terms of appointment and therefore, liable to be set aside. In the absence of a Merchant Banking Division, in Mumbai no suitable reasons have been given by the respondent bank of transferring the petitioner and thereby changing the nature of the activities for which he had been specifically recruited.
2) The impugned order of transfer is malafide and an act of sheer vindictiveness and move the penalise the petitioner because he had approached this Court on earlier occasion. The malafides are sought to be founded on the following averments:
a) It is the intention of the respondent bank to somehow see that petitioner does not remain in Delhi and is transferred from Delhi. For this purpose, petitioner was transferred from MBD, Delhi office, which is at Lajpat Nagar. When he challenged this order by filing this writ petition, he was transferred to Karol Bagh another non-MBD office and this order was not even served upon the petitioner and he came to know of the same from application dated 13.10.1999 filed in this Court. Within one week thereafter, the petitioner was transferred to Mumbai office.
b) The petitioner has been harassed continuously ever since he filed earlier writ petition inasmuch as he has not been paid his salary and other dues in time and he had to approach this Court by filing number of applications. He also made oral requests to this Court from time to time on various dates of hearings for giving appropriate directions. Even after repeated orders passed on various dates in CW No.2578/99, petitioner was not given his full dues.
3) The respondent bank is relying upon the Board Resolution dated 8.10.1999 as per which it is decided to shift its MBD from Delhi to Mumbai. However in the application dated 13.10.1999, there was no such reference to this Board Resolution. On the contrary, in the said application dated 13.10.1999, it was mentioned that the petitioner stood transferred from Karol Bagh office of the bank. Not only this respondent had filed affidavit on 17.12.1999 in CW No.2578/99 and even in that affidavit, there was not even a passing reference of the so-called Board Resolution and these averments were made for the first time in the subsequent affidavit dated 21.1.2000 filed in the aforesaid writ petition.
4) Respondent had not even opened any MBD in Mumbai and without completing formalities for this purpose including necessary permission of SEBI, petitioner was sought to be transferred to Mumbai which clearly showed that the transfer was not bonafide.
4. When the matter was argued and the petitioner highlighted this aspect, petitioner was directed to submit written synopsis stating the effect of shifting of MBD from Delhi to Mumbai without completing the formalities and also stating which are the formalities to be completed and what would be the effect of shifting of MBD in the absence of such formalities have not been completed first. Petitioner submitted the written submissions and the aforesaid aspects are dilated by the petitioner in the following manner:
i) In fact, the registration as a 'Merchant Banker' was granted to the Bank pursuant to the aforesaid recruitment. Right from its inception till date, the Merchant Banking Division has only been functioning from its Lajpat Nagar office in Delhi. All activities of merchant banking so far handled by the Bank, have been only through its Merchant Banking Division at Delhi. All authorities such as the Registrar of Companies, the RBI and SEBI are at present aware of the Merchant Banking Division of the Bank, only at Delhi and hence any proposal to shift the said department from Delhi to Mumbai would require adequate prior notice being given to the said authorities.
ii) Although it is contended by the respondents that pursuant to the Board Resolution, it had been decided to shift the Merchant Banking Division from Delhi to Mumbai, however, the respondents have not produced any document to establish the fact that, notice has been given to the concerned authorities regarding the aforementioned Board Resolution and the consequent decision to shift the Merchant Banking Division. Further, no agenda or minutes of the Board meeting have been produced to evidence this fact viz. alongwith the resolution for shifting the Branch there has been a simultaneous resolution for closure of the Merchant Banking Division which is presently functioning at Delhi.
iii) The closure of the Merchant Banking Division of the Bank in Delhi will adversely affect the interests of the investors to the Public Issue of the bank, which opened in 1998. Since post public issue compliances and investor grievances have not yet been fully investigated and mitigated, closure of the Merchant Banking Division at this stage, as proposed by the Bank would be against public interest, if the same is carried out without necessary clearance being obtained from SEBI. In fact in the past SEBI has penalised the Corporation Bank and revoked its licence for noncompliance of its guidelines for disclosure and investor protection, for having closed its branch office without prior concurrence of SEBI.
iv) Under the present guidelines issued by SEBI vis-a-vis investor protection, investors have a right to receive true and correct information regarding all events affecting the operations of the company and bringing about material changes therein. Presently the Investor Grievances Redressal Cell of the respondent bank is functioning through its Merchant Banking Division at New Delhi. It is the petitioner who is single-handedly handling/attending to post-Public Issue complaints. More than 1000 investors' grievances regarding non-receipt of share certificate, dividend warrants, fully paid stickers etc. are being presently handled by the petitioner vis-a-vis share allotments made outside the State of Jammu & Kashmir. Hence at this stage, shifting of the department without attending to the pending complaints and without notifying the public at large, regarding the Shift/Resolution, is certainly not in the interest of public. The fact that while the Board resolved to shift the MBD in October 1999, without having notified the public or the concerned authorities till date, leaves no room for any doubt that the said Resolution has been prompted by decision extraneous to the interest of the Bank and the investors. The shares of the bank are listed and traded on the Stock Exchange at Ludhiana (LSE). As per clause 36 of the agreement entered into between the said Stock Exchange and the bank in consideration of Exchange listing it is mandatory for the Bank to promptly notify the Stock Exchange on any material change in the general character or nature of its business, where such change is brought out by reason of the Bank selling, disposing or enlarging, restricting or closing the operations of any unit or a division, or proposing to enlarge, restrict, close the operations of any unit or division or otherwise. Since the Ludhiana Stock Exchange has not been informed of the proposed closure of the Merchant Banking Division at Delhi, it clearly is in contravention of the terms of the aforementioned agreement.
v) It is pertinent to mention that as per clause 42 of the said listing agreement, the deposit of an amount of 1% of the public offer amount, is still pending with the Ludhiana Stock Exchange and has not been refunded as yet, as certain post public issue compliances have not been carried out by the bank so far. In these circumstances, any decision to close the Merchant Banking Division and to transfer the petitioner, who has single-handedly been dealing with all the pre & post issue work, cannot be said to be guided by bonafide reasons, more so when the said stock exchange has not been given any prior intimation.
vi) Respondent had been bankers to the public issue of Patliputra Credit and Securities Limited. The said company has not been complying with the post-issue listing requirements and has now been found by SEBI not to be existing at its last known address. In view thereof, the Merchant Banking Division of the bank has been advised by SEBI to furnish information regarding the said company in order to trace its Promoters/Directors. Moreover, the petitioner had also received summons under Sec.131 of the Income Tax Act 1961 in connection with proceedings under the said Act in the case of Patliputra Credit and Securities Limited. The said case has not yet been closed and therefore transferring the petitioner alongwith the whole of the Merchant Banking Division to Mumbai, without notice to the Income Tax authorities and the SEBI would adversely affect the interest of the petitioner and expose him to personal jeopardy.
5. Highlighting the factual and legal consequences in shifting the MBD from Delhi to Mumbai, the petitioner submitted that the proposed shifting of the MBD not having received the requisite concurrence of all the concerned authorities and without being notified to the general public at large, the same is against the very essence of the code of conduct for Merchant Bankers as laid down by SEBI. A Merchant Banker in conduct of its business is expected to observe not only high standards of integrity in its transactions, but also absolute transparency and fairness vis-a-vis investors. The SEBI(Merchant Bankers) Regulations 1992, which provide for a procedure for inspection of Merchant Bankers, empowers the Securities Exchange to suspend registration of a Merchant Banker in case materials facts affecting interests of investors are not disclosed. Hence, the bank was undoubtedly under a mandatory obligation to have notified SEBI regarding its Resolution to shift its MBD to Mumbai. Moreover in view of the pending work in Delhi, a decision to shift the entire MBD to Mumbai and to close the said department in Delhi cannot be held to be interests of the bank. The shifting of the MBD of the bank is not being carried out as per the requisite procedures. The same is a means whereby the bank is seeking to justify the transfer order dated 20.10.1999 which in fact is not only in contravention of the terms of appointment of the petitioner but is also an act of vindictiveness and victimisation.
6. Dr.Ashraf Ali, Senior Manager (Department of Law) of the respondent bank argued the case on behalf of the respondent and submitted preliminary objection to the maintainability of the writ petition viz. Respondent bank is not a "State" or "instrumentality or an agency of State" under Article 12 of the Constitution of India and therefore the writ petition was not maintainable.
7. On merits, it was submitted that admittedly as per the terms and conditions of the appointment of the petitioner, he could be posted to MBD in Delhi and Mumbai. Impugned order dated 20.10.1999 posting him to Mumbai office is therefore in accordance with the terms of his appointment. It was further submitted that since in the Board Meeting dated 8.10.1999, it was decided to shift MBD from Delhi to Mumbai, petitioner was accordingly posted to Mumbai office to work in MBD only. It was also a policy decision of the Board to shift MBD from Delhi to Mumbai and it was not permissible for the petitioner to challenge such policy decisions. It was further submitted that since petitioner was the only person in respondent bank who was in MBD and had the necessary experience and expertise in this regard, it was the duty of the petitioner to complete all formalities which are required for the purpose of shifting of the MBD from Delhi to Mumbai. Once the Board had taken the decision, implementation of that decision was the duty of the petitioner. The decision was in the overall interest of the bank since it was considered by the Board of Directors that MBD should be in Mumbai which is a commercial capital of the country. It was further stated that had petitioner made a representation against the transfer order before approaching this Court, he could have mentioned requisite formalities and steps which are required for shifting of MBD from Delhi to Mumbai and on petitioner's pointing out such formalities in his representation, instead of in the present writ petition, respondent bank could have taken appropriate action on the same or could have directed the petitioner to undertake this exercise. Allegations of malafide or vindictiveness were refuted and it was submitted that such malafides could not be imputed on Board of Directors who in their collective wisdom had taken such a policy decision to shift MBD from Delhi to Mumbai which had the necessary consequence of transferring petition also from Delhi to Mumbai. Therefore no such motives or malafides could be imputed in such a decision. It was also submitted that the petitioner's not joining Mumbai office was causing hardships and loss to the respondent bank.
8. I have heard the counsel for both the parties in detail and have also perused the relevant record and considered the respective submissions of the parties. Before dealing with the case on merit, let me first address myself to the preliminary objection raised by the respondents.
RE : MAINTAINABILITY OF WRIT PETITION
9. It may be mentioned that in CW No.2578/99, no such objection was taken by the respondents in their counter affidavit that respondent bank was not an instrumentality or an agency of State under Article 12 of the Constitution. In fact this objection was taken for the first time in the counter affidavit filed on 14.3.2000 in the present writ petition. When this petition came up for hearing on 15.3.2000, the counter affidavit filed by the respondent was not on record and it was orally submitted by Dr.Ashraf Ali that this aspect had already been concluded by the Division bench of J & K High Court in the case of Jagdish Chander Gupta Vs. J & K Bank Ltd. & Ors.
. In fact Dr.Ashraf ali wanted the petition to be dismissed on that very day in view of the aforesaid judgment. However since petitioner's lawyer was not present, petitioner made a request to the effect that he wanted to look into the matter and address arguments. Then the case was renotified on 21.3.2000 after passing the following order:
"Mr.Ashraf Ali, Law Officer of the respondent bank who is present in the Court submits that the writ petition is not maintainable as respondent bank is not a `State' or `other authority' within the meaning of Article 12 of the Constitution of India. He relies upon the Division Bench judgment of Jammu & Kashmir High Court in the case of Jagdish Chander Gupta Vs. Jammu and Kashmir Bank Ltd & Ors. . He also submits that the writ petition is premature in any case inasmuch as before coming to the Court, petitioner has not exhausted the alternate remedy under the Rules. Petitioner who is present in person wants some time to look into the matter to address arguments.
At request, re-notify on 21.3.2000 Status-quo to continue till the next date of hearing."
10. On 21.3.2000, matter was adjourned to 24.3.2000. On 24.3.2000, when the matter came up for hearing and the counsel for the petitioner was confronted with the aforesaid Division Bench judgment of J & K High Court, it was pointed out by the counsel for the petitioner that matter on this aspect was pending before the Supreme Court and she was trying to locate the same. She prayed for 2-3 days' time for this purpose as in that week there was vacation in Supreme Court which was reopening on 27.3.2000. On this statement of the petitioner's counsel, Dr.Ashraf Ali was confronted and was asked as to whether any such matter was pending in Supreme Court, because if the matter related to respondent bank itself, he should be aware of the same. On being prompted by the Court, the respondent informed that the aforesaid judgment of the Division Bench was over-ruled by Full Bench of J & K High Court in SWP No. 960/92 entitled Mr. Chandji Koul Vs. J & K Bank Ltd. & Ors. by judgment dated 5.12.1995 and respondent bank had preferred SLP against the same in which leave was granted by Supreme Court vide order dated 10.3.1997 and operation of the Full Bench judgment had been stayed. The respondent furnished copies of the Full Bench judgment as well as orders dated 10.3.1997 passed by Supreme Court.
11. The aforesaid conduct of the respondent bank was not bonafide to say the least. When the Division Bench judgment of the J & K High Court had been over-ruled by the Full Bench judgment dated 5.12.1995, it was not proper for the respondent to rely upon the Division Bench judgment while making submissions on 15.3.2000. Least that was expected was to inform the Court about Full Bench judgment also even if the respondent bank wanted to contend that the Full Bench judgment having been stayed by Supreme Court should not be relied upon.
12. Be as it may, the position which emerges from the aforesaid judgments is that Division Bench of J & K High Court has held respondent bank not to be "State" under Article 12 of the Constitution of India. However although this judgment is over-ruled by the Full Bench of the same High court, operation of the Full Bench judgment stands stayed by the Supreme Court. Therefore, one view which could be taken is that as on today, the Division Bench judgment should not be relied upon as it stands over-ruled by the Full Bench. The other view which could be adopted is not to rely upon Full Bench judgment as its operation has been stayed by Supreme Court and in that event not to rely either upon Division Bench or Full Bench judgment and decide the question afresh on the basis of material placed on record as to whether respondent bank is State or instrumentality or an agency of State within the meaning of Article 12 of the Constitution.
However, I need not go into this exercise in this writ petition inasmuch as, on merits of the case as well, I find that challenge to the transfer order is not sustainable. Therefore as the matter is pending before the Apex Court, I leave this question open.
RE: VALIDITY OF TRANSFER
13. Let me now deal with the grounds on which the impugned transfer is challenged by the petitioner. It hardly needs to be emphasised that transfer is an administrative function. An employer is the best judge about the requirement and posting of its employees. Courts are not to interfere with the discretion of the employer in such matters. Scope of judicial review is very limited and the transfer can be challenged only under two circumstances namely, (a) when their transfer is an act of mala fides on the part of the respondents; when it is made in violation of statutory provision. In Union of India Vs. S.L.Abbas , the Supreme Court made the following pertinent observations:
"An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration."
14. To the similar effect are the observations of Supreme Court in the case of Union of India Vs. N.H. Kirtania , Shilpi Bose Vs. State of Bihar reported in 1991 Supp.(2) SCC 659, Union of India Vs. N.P.Thomas , Abani Ranta Ray Vs. State of Orissa reported in 1995 Supp.(4) SCC 169 and N.K.Singh Vs. Union of India . It is not necessary to multiply judgments. However, it would be apt to quote the following observations of Supreme Court in the case of N.K.Singh Vs. Union of India (supra):
"Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superior to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all Government Departments. This must be left, in public interest to the departmental heads subject to the limited judicial scrutiny indicated.
It was also observed that :
"Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the Government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out."
15. In view of the position mentioned above, it is clear that transfer order can be interfered with only if it is against the statutory provision or service conditions of the concerned employee or passed in a malafide manner. In so far as transfer of the petitioner from Delhi to Mumbai is concerned, it is categorically mentioned by the respondents that the same is to MBD of the bank in Mumbai. Transfer is not only incidence of service, there is a clear provision in the service conditions of the petitioner for his transfer. Further, it is the admitted case that he can be posted in MBD of the bank in Delhi or Mumbai. Therefore the transfer order passed in this case is not in contravention of his terms of appointment. There is no force in the contention of the petitioner that the respondent bank has no MBD in Mumbai and therefore transfer order is outside the scope of his appointment. It has been clarified by the respondent in the counter affidavit that the bank has decided to shift MBD from Delhi to Mumbai and petitioner is accordingly posted to Mumbai for this purpose.
16. In so far as challenge to the transfer order on the grounds of malafides is concerned, I am of the opinion that the petitioner has not been able to make out a case of malafides which would warrant interference in the impugned order by this Court. No doubt, the petitioner was earlier transferred from Delhi to Srinagar and then to Karol Bagh office and both these transfers were not in MBD and therefore not permissible. However merely because of these reasons, it cannot be said that the intention of the respondent bank is to harass the petitioner or to see that the petitioner is somehow transferred out of Delhi. The Board of Directors of the respondent bank has taken policy decision for shifting the MBD from Delhi to Mumbai. This decision having been taken at the highest level, it cannot be inferred that the decision was only to victimise the petitioner or the decision is arbitrary. In its wisdom, if the Board of respondent bank decides to shift MBD from Delhi to Mumbai which is the commercial capital of the country feeling that it would be better to have MBD in Mumbai, bonafides of the respondent bank in taking such a decision cannot be doubted. The Courts are not to interfere with such policy decisions.
17. Needless to mention, in order to prove the allegations of malafides, the petitioner has to make out a strong case of malafides. In the case of State of Uttar Pradesh Vs. Dr. V.N. Prasad reported in (1995) 2 SCC 151 it was held by the Supreme Court that nature of evidence to establish mala fides in passing the transfer order has to be strong and convincing. It was further held that in the absence of prima facie material to establish mala fides of the transfer order presumption of bona fides would be drawn. The grounds taken on the basis of which malafides are alleged are not sufficient and there are no compelling circumstances from which malafides could be inferred, particularly as mentioned above, the decision to shift MBD from Delhi to Mumbai is taken at the highest level. Petitioner being the only official in the bank who specialises in this branch of banking and when MCD is going to be in Mumbai, it is but natural consequence that petitioner also is to be posted to MBD in Mumbai. No doubt, the respondent bank had in its application dated 13.10.1999 or affidavit dated 17.12.1999 filed in CW No.2578/99 had not mentioned about this Board Resolution which was passed by the Board on 8.10.1999. However it can be termed as inaction or carelessness on the part of the persons who are pursuing the said case and because of this omission, it cannot be inferred that no such Resolution was passed on 8.10.1999. The bank has produced true attested copy of the said Resolution on record, and therefore, it cannot be said that this plea is taken by the respondent bank as an afterthought plea.
18. Likewise, merely because some of the payments including salary and allowances etc. were not paid to the petitioner in time and he had to seek appropriate orders from this Court from time to time for payment of the same, it cannot be inferred that the transfer order is malafide as two things have no interconnection. No doubt the conduct of the officials at lower level in not giving the proper treatment to the petitioner in this respect may be condemnable, such conduct cannot be linked with the transfer which has been occasioned due to the reasons mentioned above and due to the act of the bank's highest organ namely the Board of Directors.
19. Petitioner has also highlighted in detail the adverse effects of shifting of MBD from Delhi to Mumbai without completing the formalities which have already been mentioned above while recording arguments of the counsel for the petitioner. All this may show that the respondent bank has not taken proper care before deciding to shift MBD from Delhi to Mumbai.
However on this ground, the Court cannot interfere with the policy decision of the respondent bank in shifting the MBD from Delhi to Mumbai. (Reference UOI & Ors. Vs. S.L.Dutta & Anr. , State of Andhra Pradesh & Anr. Vs. V.Sadanandam & Ors. , G.B.Mahajan & Ors. Vs. The Jalgaon Municipal Council & Ors. , All India Ex-Emergency Commissioned Officers & Short Commissioned Officers' Welfare Association & Anr. Vs. UOI & Anr. reported in 1995 Suppl. (1) SCC 78). Whether the administrative decision of the respondent bank is in the interest of bank or not is for the bank to decide and this Court cannot sit over the wisdom of the Board of Directors in this respect. However, I may hasten to add that the legal formalities pointed out by the petitioner in shifting MBD from Delhi to Mumbai are the important aspects which have to be borne by the respondent bank. Whether Board of Directors were conscious of these aspects or not is not known. In fact, Dr.Ashraf Ali could not satisfactorily answer the difficulties pointed out by the petitioner and he stated, at the bar, that the petitioner being the only merchant banker in the respondent bank and knows better about these procedural formalities which are required to be completed, it was expected of him to enlighten the concerned functionaries in the respondent bank about the same and once these are brought to the notice of the respondent bank, the respondent bank would take care of the same. This kind of reply also shows that the bank was not conscious of these aspects when the decision was taken. Although it is a matter entirely within the domain of the respondent to decide the shifting of MBD from Delhi to Mumbai, at the same time legal formalities for shifting the said MBD to Mumbai are to be fulfillled as well. Respondent bank is not only expected to but it is rather imperative for respondent bank to comply with these legal provisions including various permissions from all concerned such as Registrar of Companies, RBI and SEBI etc. Authorities should also keep in mind and deliberate upon the purported adverse effect on the public issue of the bank which opened in 1998. It is hoped that keeping in view the aforesaid aspects highlighted by the petitioner, the respondent bank will deliberate on these issues and give a second look to the entire matter. It may not be out of place to mention that the respondent bank had earlier decided to open MBDs at Delhi as well as Mumbai and in fact recruitment of 2 officers namely petitioner as well as Sh.A.K.Salaria was made for this purpose for Delhi and Mumbai divisions respectively. Since Sh.Salaria did not join, Mumbai division of MBD was not opened at that time. Thus if the bank, after deliberating on the aspects highlighted by the petitioner, come to conclusion that retention of MBD in Delhi is also necessary for proper functioning and in the interest of the bank, the respondent bank can consider opening of another MBD in Mumbai rather than shifting MBD from Delhi to Mumbai. However all these aspects are to be considered by the respondent bank and it is entirely the discretion of the respondent bank to take whatever decision it wants to take in this respect keeping in view the overall interest of the bank as well as that of public at large. Further more, if the respondent bank still maintains the decision to shift MBD from Delhi to Mumbai, in what way the legal formalities are to be completed and for that purpose whether it would be appropriate to keep petitioner in Delhi for completion of these formalities is again a decision which is to be taken by the respondent bank. However as this Court is not interfering with the decision of the respondent bank in the transfer of the petitioner from Delhi to Mumbai ,in case respondent bank still decides that petitioner is to be transferred to Mumbai immediately, it is made clear that petitioner shall in no way be responsible for any legal or any other liability if any for non-compliance of the legal provisions/formalities/procedures for shifting of Delhi office to Mumbai office.
The writ petition is accordingly disposed of with the aforesaid observations.
20. There shall be no order as to costs.