TMI Blog2011 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ctrine would protect the preliminary findings rendered by Ms.Joshi on 27 June 2011 both having regard to the underlying object and nature of the provision which is contained in Rule 3 and the rationale for the doctrine - Petition is dismissed - 6791 of 2011 - - - Dated:- 14-10-2011 - D.Y. Chandrachud, A.A. Sayed, JJ. V. Shridharan, Sr. Adv. with Prakash Shah and Jas Sanghavi i/b. PDS Legal for the Petitioner Pradeep S. Jetly with Jay K. Bhatia, Arshad Hidayatullah, Sr. Adv. with Sujay Kantawala, Rajesh Sharma, Ricab Chand and Brijesh Pathak for the R. Ashokan for the Respondent ORAL JUDGEMENT D.Y. Chandrachud, J:- 1. Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal. 2. The Petitioner which is a Company engaged in the manufacture, import and sale of house ware products, has challenged the preliminary findings issued by the Designated Authority in the Directorate General of Anti-Dumping. The preliminary findings have been issued under the provisions of Rule 12 of the Customs Tariff (Identification, Assessment and Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Secretary in the Department of Commerce with effect from 5 May 2011 by upgrading the post held by the officer to its original level. On 20 July 2011, the Union Ministry of Finance issued a notification in supersession of its earlier notification dated 12 December 2000 "except as respects things done or omitted to be done before such supersession, appointing the person" not below the rank of Joint Secretary to the Government of India, Department of Commerce, Ministry of Commerce and Industry as Designated Authority for the purposes of the Rules. On 28 July 2011, the Union Ministry of Commerce and Industry issued an order, notifying that Ms.Vijaylaxmi Joshi consequent upon her appointment as Additional Secretary with effect from 5 May 2011 "continues to discharge the functions of the Designated Authority" inter alia for the purposes of the Rules. 7. The bone of contention in these proceedings under Article 226 of the Constitution, arises from the preliminary findings that were issued by Ms.Vijaylaxmi Joshi as Designated Authority in exercise of powers conferred by Rule 12. On the basis of the preliminary findings, the Union Government on 9 August 2011 imposed a provisional anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliminary findings. 10. The Union Government has filed an affidavit in reply in these proceedings. Besides explaining the scheme of Section 9A of the Customs Tariff Act, 1975 and the Anti-Dumping Rules, it has been stated that two Ministries dealt with the appointment of Ms.Vijaylaxmi Joshi:- (i) The Ministry of Commerce and Industry; and (ii) The Ministry of Finance. While the Ministry of Commerce and Industry dealt with the functions of Ms.Joshi, the notification issued by that Ministry states that as an Additional Secretary, Ms.Joshi continues to discharge the functions of the Designated Authority. Further, it has been stated that Ms.Joshi did not cease to be a Designated Authority within the meaning of the Rules. Reliance has been placed on the Rules in so far as they provide that any officer not below the rank of Joint Secretary shall act as Designated Authority. Consequently, it is urged that Ms.Joshi continued to have jurisdiction to proceed with the matter and to carry out investigation. Reliance, in particular, has been placed on the subsequent order dated 28 July 2011 issued by the Ministry of Commerce and Industry which states that Ms.Joshi continues to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal notification. We, therefore, overrule the preliminary objection. 13. The rival submissions now fall for determination. 14. Rule 3 stipulates that the Central Government may appoint a person not below the rank of a Joint Secretary to the Government of India or such other person as it may think fit to act as Designated Authority for the purposes of the Rules. The reason why the rule making authority has considered it appropriate that an officer of the rank, at least of Joint Secretary, should be appointed as Designated Authority is to ensure that the officer who is to act as Designated Authority must, by the nature of his office, be responsible enough to discharge the functions which are vested in him under the Rules. Rule 4 provides that the duties of the designated authority include:- (i) investigation of the existence, degree and effect of any alleged dumping in relation to imports of any article; (ii) identification of the article liable for anti-dumping duty; (iii) the submission of findings, provisional or otherwise to Central Government; (iv) determining the normal value, export price and the margin of dumping in relation to the article under inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, the Ministry of Commerce and Industry notified by its order that Ms.Joshi, consequent upon her appointment as Additional Secretary with effect from 5 May 2011, continues to discharge the functions of Designated Authority inter alia for the purpose of the Rules. 16. The submission which has been urged on behalf of the Petitioner is that with effect from 5 May 2011, when Ms.Joshi was promoted as Additional Secretary, the substantive rank which was to attach to her position as an officer of the Government did not fulfill the requirement of the notification dated 11 February 2011 under which a Joint Secretary in the Union Government was to be appointed as Designated Authority. Stretched to its logical conclusion, the submission which has been urged on behalf of the Petitioner would mean that between 5 May 2011 and 20 July 2011, Ms.Joshi was not vested with the jurisdiction to act as Designated Authority. For, even assuming the line of enquiry of the Petitioner, it is evident that on 20 July 2011, a fresh notification was issued by Union Government under Rule 3(1) stipulating the appointment of a person not below the rank of Joint Secretary to the Government of India as Design ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angaraju vs. State of Andhra Pradesh. The judgment of the Supreme Court dealt with the effect of a declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid, on judgments pronounced by the Judge prior to the declaration. In that case, while Criminal Revisions and Appeals were pending before the High Court, the Supreme Court quashed the appointments of several Sessions Judges who had heard those cases on the ground that their appointments were in violation of Article 233 of the Constitution. Thereupon, it was urged that the judgments rendered by those Judges were void and would have to be set aside. Repelling the submission, the Supreme Court explained the genesis of the doctrine in the following observations:- "The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari v. King Emperor, (1912) 15 Cal LJ 574. As one of us had occasion to point out earlier "the doctrine is founded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack." 19. The conclusion which the Supreme Court drew was that Judges in that case who rejected the appeal in one case and convicted the accused in the other case were not mere intruders and usurpers but had discharged the functions and duties of Judges under colour of lawful authority. The Court was concerned with the office that the Judges purported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would, however, not be true of a total intruder or usurper of office." The Supreme Court observed that while the de facto doctrine saves official acts done by an officer whose appointment is found to be defective, the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings. However, the doctrine would not come to the rescue of an intruder or usurper or a total stranger to the office. The Supreme Court held that the de facto doctrine would not apply in that case. The Enquiry Officer, in the judgment of the Supreme Court, could hardly be described in that case as a person who was the holder of the office, but was merely a Bank employee or for that matter an exemployee. 22. The principle underlying the de facto doctrine was again adverted to in the judgment of the Supreme Court in Union of India vs. Charanjit S. Gill. In that case, the Judge Advocate who was associated with a Court Martial was of a rank lower than the officer facing the trial. This was contrary to the Army Rules. An apprehension was expressed before the Supreme Court that if the proceedings of the Court Martial are quashed on the ground that the Judge Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have authority to do so. Similarly, in McDowell v. United States, a Circuit Judge assigned a Judge from the Eastern District of North Carolina to sit as a District Judge in the District of South Carolina until a vacancy in the latter district was filled. McDowell was convicted during the term in which the assigned judge served, but made no objection at the time of his trial. He later challenged the validity of his conviction because of a claimed error in the assigned judge's designation. The Court held that the assigned judge was a "judge de facto" and that "his actions as such, so far as they affect third persons, are not open to question." Ryder v. United States, a case which makes mention of all the judgments cited above, laid down the doctrine in a manner identical to that of Indian and British jurisprudence. The United States Supreme Court there 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." A more recent case is that of Nguyen v. United States, where the United States Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the validity of the appointment of a Judge. In other words, the validity of the constitution of a judicial body or for that matter of an appointment of a Judge cannot be questioned in independent proceedings between two private parties with which the Judge is really not concerned. Now, undoubtedly the de facto doctrine precludes a collateral challenge to the validity of the appointment of a Judge. For the purposes of this case, it would be necessary for the Court to have regard to the true nature of the challenge in this Court. The Petition which is filed before this Court seeks to challenge the preliminary findings rendered on 27 June 2011 by the Designated Authority. A writ of Mandamus is sought for an order restraining the Respondents from taking any further steps in pursuance of or in implementation of the preliminary findings rendered on 27 June 2011. The nature of the challenge in the Petition would reveal that the grievance of the Petitioner is not as much in regard to the validity of the appointment of the First Respondent, or for that matter to the legality of the First Respondent continuing to act as Designated Authority as much as the decision which has been rendered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or intruder had come to occupy the office of Judge of the Labour Court. The requirement under the Law was that a person who is or has been a Judge of the High Court or has held Judicial Office of the nature described in Section 7(3) could be appointed. The person who was appointed did not even have an ostensible claim to hold the office of a Judge, having no judicial experience whatsoever. As the Supreme Court observed, administrative proximity with judicial work cannot be regarded as an excuse enough to elevate the administrator into a holder of judicial office. Having never held any judicial office, the incumbent totally lacked judicial experience and was incompetent to discharge the function of the Labour Court. The facts in the present case would have to be set out in contradistinction. Rule 3, as its tenor indicates, provides that an officer not below the rank of Joint Secretary can be appointed as a designated authority. The underlying reason for the rule is to ensure that an officer of at least sufficient seniority and rank of the Government of India should act as Designated Authority commensurate with the importance of the nature of the functions and duties entrusted unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief and the Court has aways to ask itself whether in the circumstances of each case the Petitioner should be given the relief in the nature of quo warranto which he seeks. We are not satisfied that the present case would have met the description where a writ of quo warranto could have been issued. 30. For the reasons which we have indicated, we come to the conclusion that the de facto doctrine would protect the preliminary findings rendered by Ms.Joshi on 27 June 2011 both having regard to the underlying object and nature of the provision which is contained in Rule 3 and the rationale for the doctrine. Hence, no case for interference under Article 226 of the Constitution is made out. However, we clarify, as we have stated in the course of this judgment, that the challenge to the preliminary findings was pressed before this Court only on the ground which we have dealt with in this petition in view of the fact that final findings of the Designated Authority have been made in the meantime. We leave it open to the Petitioner to follow such remedies as are open in law if they are aggrieved by the final findings made by the Designated Authority. 31. The Petition is accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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