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TMI Blog2011 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Injury) Rules, 1995 ("the Rules". 3. On 26 August 2010, the Union Government in the Department of Commerce of the Ministry of Commerce and Industry initiated an investigation into the alleged dumping of Opal Glassware originating in or exported from China and the UAE in exercise of the power conferred by Rule 5 of the Rules. The initial notification of the Designated Authority stated that the investigation was to determine the existence, degree and effect of alleged dumping and to recommend the amount of antidumping duty, which if levied would be adequate to remove the injury caused to domestic industry. 4. Rule 3 of the Rules stipulates that the Central Government may, by notification in the Official Gazette, appoint "a person not below the rank of a Joint Secretary to the Government of India or such other person as that Government may think fit as the Designated Authority for the purposes of these Rules." 5. On 12 December 2000, a notification was issued by the Union Government in the Ministry of Finance under Rule 3(1) appointing the Additional Secretary to the Government of India in the Department of Commerce of the Ministry of Commerce and Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued its final findings of the antidumping investigation, recommending a definitive antidumping duty on 25 August 2011. 8. According to the Petitioner, the preliminary findings that have been issued by the Designated Authority on 27 June 2011 are liable to be quashed and set aside on several grounds, on the basis of which the Petition under Article 226 of the Constitution was instituted. Since the Designated Authority has in the meantime, issued final findings, Counsel appearing on behalf of the Petitioner has while reserving the right of the Petitioner to question the final findings in appropriate proceedings confined the challenge to the preliminary findings only on the ground that on the date on which the preliminary findings were issued - 27 June 2011 - Ms.Vijaylaxmi Joshi had been promoted to the post of Additional Secretary to the Government of India and was, therefore, bereft of jurisdiction to continue with the enquiry and to issue preliminary findings. 9. The submission before the Court is that by virtue of the notification dated 11 February 2011 issued by the Union Government in the Ministry of Finance under Rule 3(1), the Joint Secretary to the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Counsel appearing on behalf of the Third Respondent which is a domestic industry engaged inter alia in the manufacture of Opal Glassware in the country, submitted that:- (i) The Petitioner has not raised the issue of jurisdiction before the Designated Authority though several letters were addressed by the Petitioner to the authority on 1 July 2011, 14 July 2011 and 26 July 2011; (ii) The Petitioner sought to raise the issue before the Ministry of Finance which accordingly clarified that Ms.Joshi was and continues to be the Designated Authority; and (iii) The power to appoint the Designated Authority is with the Central Government with whom the power to impose a provisional duty also vests. Due process of law has, it is urged, been complied with as Ms.Joshi is the "Designated Authority". 12. On behalf of the Respondents a preliminary objection has been raised to the maintainability of the Petition on the ground that final findings have been issued by the Designated Authority and the remedy of the Petitioner would lie in challenging those findings. To meet this objection, Counsel appearing on behalf of the Petitioner submits that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he article under investigation; and (v) determining the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of article from specified countries. The Designated Authority has to make recommendation to the Central Government on the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to domestic industry, and date of commencement of such duty. Similarly, the Designated Authority is vested with the function of reviewing the need for continuance of anti-dumping duty. Consistent with the importance of the enquiry associated with the office of Designated Authority, the rule making authority considered it appropriate that the appointment to the Designated Authority must be of an officer of a rank at least of a Joint Secretary to the Government of India. In the alternate, Rule 3 contemplates that such other person as the Central Government deems fit may be appointed as Designated Authority. 15. In the present case, the facts on record would indicate that though initially by a notification dated 12 December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the Government of India as Designated Authority. Even according to the Petitioner, with effect from 20 July 2011, Ms.Joshi would fit that description since the rank of Additional Secretary is above that of Joint Secretary. But, according to the Petitioner, the notification dated 20 July 2011 would not have the effect of saving the preliminary findings that were rendered by Ms.Joshi on 27 June 2011 because the notification, both in its tenor and as a matter of first principle must only have prospective effect. Similarly, it is urged that the order of the Union Ministry of Commerce and Industry dated 28 July 2011 which refers to Ms.Joshi continuing to discharge the functions of the Designated Authority cannot rectify the absence of jurisdiction between the date on which the officer was promoted as Additional Secretary and the date of the notification subsequently issued on 20 July 2011 allowing the appointment of an officer not below the rank of Joint Secretary. 17. In our view, the submission which has been urged on behalf of the Petitioner would have to be considered from the perspective of the de facto doctrine. Whether the de facto doctrine can be applied in a situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o point out earlier "the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone." The Supreme Court held that a Judge de facto is one who is not a mere intruder or usurper, but a person who holds the office under colour of lawful authority though his appointment is defective and may later be found to be defective. The underlying principle, according to the judgment of the Supreme Court, is that the defect of his title to the office would not render the judgments pronounced a nullity when the acts were done by him when he was clothed with the powers and functions of the office. Such acts and decisions had the same efficacy as judgments pronounced and acts done by a Judge de jure. In other words, as explained by the Supreme Court, the genesis of the de facto doctrine is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was concerned with the office that the Judges purported to hold and not with the particular incumbents of the office. 20. The principle enunciated in Gokaraju Rangaraju's case was followed by the Supreme Court in a subsequent decision in Pushpadevi M.Jatia vs. M.L.Wadhawan, Additional Secretary. In that decision, the Supreme Court observed as follows:- "Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief." 21. In Central Bank of India vs. C. Bernard, a Bipartite Settlement between the management and the workmen stipulated that the Chief Executive Officer was entitled to decide which officer would be empowered to hold an enquiry and take disciplinary action in the case of each office or establishment. The person who was appointed as an Enquiry Officer and disciplinary authority while he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that if the proceedings of the Court Martial are quashed on the ground that the Judge Advocate was lower in rank than the officer facing the trial, many judgments delivered, orders passed and action taken by various Courts Martial would be rendered illegal. The Supreme Court held that that the apprehension was misplaced in view of the de facto doctrine, born out of necessity as acknowledged and approved by pronouncements of the Courts. 23. The de facto doctrine as a principle of law does not apply only to the acts and decisions of Judicial Officers. A judgment of a Division Bench of this Court in Manohar P. Kharkhar vs. Raghuraj, recognised that the doctrine is not restricted to the invalidity of the appointment of Judges alone but is wide enough to cover the appointment of public servants discharging public duties. 24. This doctrine has been applied in the jurisprudence of both Britain and the United States. The authors H.W.R. Wade and C.F. Forsyth in their book Administrative Law (OUP, 10th Edition, 2009, p. 241) show that as regards the British:- "In one class of cases there is a long standing doctrine that collateral challenge is not to be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction to office is deficient." A more recent case is that of Nguyen v. United States, where the United States Supreme Court held that the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title, even though it is later discovered that the legality of that person's appointment or election to office is deficient. 27. The position of American law has been clearly enunciated in American Jurisprudence (2nd Edition):- "A de facto judge is one who occupies a judicial office under some color of right, who exercises the duties of the judicial office under color of authority pursuant to an appointment or election thereto, and for the time being performs those duties with public acquiescence, though having no right in fact, because the judge's actual authority suffers from a procedural defect or a technical defect of statutory authority. A de facto judge differs from a mere usurper, who undertakes to act without any color of right, and from a de jure judge, who, in all respects, is legally appointed and qualified to exercise the office. The de facto doctrine is designed to prevent a petitioner asking a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that matter to the legality of the First Respondent continuing to act as Designated Authority as much as the decision which has been rendered by the First Respondent. The conflict of business interests is between an importer of products which are subject to regulatory control under the Anti-Dumping Rules and the domestic industry which the Rules seek to protect from an injury from dumped imports. The appointment of Ms.Joshi is subsidiary to that conflict. In the lis between the parties, Ms.Joshi has no interest or concern except as a Judge. She has discharged her functions under colour of lawful authority. She has acted in the public interest as an adjudicator and not in her own interest. The de facto doctrine must apply. 29. Strong reliance has been placed upon the judgment of the Supreme Court in the State of Haryana vs. Harayana Cooperative Transport Ltd. The decision in that case turn upon a situation where, in breach of the provisions of Section 7(3) of the Industrial Disputes Act, 1947 which requires a person who is or has been a Judge to be appointed as the Presiding Officer of a Labour Court, a person who had rendered clerical duties was appointed as a Judge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of India should act as Designated Authority commensurate with the importance of the nature of the functions and duties entrusted under the Rules. Ms.Joshi was, on the date when she assumed charge of investigation, a Joint Secretary to the Government of India. When she commenced the investigation, she clearly held a position which fell even within the strict terms of the notification dated 11 February 2011. During the pendency of the investigation, she came to be promoted as Additional Secretary. She still was, within the meaning of Rule 3(1) an officer not below the rank of a Joint Secretary. The public law element underlying Rule 3 was not violated. The fact that the Union Government as delegate under the Rules does not regard such an officer to be incompetent to hold the position of a Designated Authority is deducible from the facts. On 20 July 2011, a notification was issued which provides that an officer not below the rank of Joint Secretary can be appointed as Designated Authority. The Union Ministry of Commerce and Industry clarified in its order dated 28 July 2011 that Ms.Joshi, upon her appointment as Additional Secretary continues to discharge the functions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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