Defacto doctrine relating to office of judge

The de facto doctrine has two requisites, namely (i) the possession of the office and the performance of the duties attached thereto, and (ii) colour of title, that is, apparent right to the office and acquiescence in the possession thereof by the public. According to this doctrine the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers. ... It, therefore, seems clear to us that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as efficacious as those made by a de jure officer. The same 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. 

Bombay High Court

M/S.Hamilton Housewares Private ... vs Designated Authority, ... on 14 October, 2011

Bench: Dr. D.Y. Chandrachud, A.A. Sayed

Citation; 2012 (4) ALLMR 378 ;2012 (1) MHLJ 442 Bom



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 VBC 2 WP6791.11-14.10 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 Collection of Anti- Dumping Duty on Dumped Articles and for Determination 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 anti-dumping duty, which if levied would be adequate to remove the injury caused to domestic industry. VBC 3 WP6791.11-14.10
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 Industry as Designated Authority for the purposes of the Rules.1 On 11 February 2011, the Union Government in the Ministry of Finance amended the earlier notification so as to substitute the words "Joint Secretary" for the words "Additional Secretary" in the earlier notification.2 During the operation of the earlier notification Shri P.K. Chaudhery, Additional Secretary was appointed as a Designated Authority. Upon the amendment brought about on 11 February 2011, an order was issued by the Union Ministry of Commerce and 1 Notification No.74/2000-Cus.(N.T.)
2 Notification No.11/2011-Cus.(N.T.)
VBC 4 WP6791.11-14.10 Industry on 14 February 2011 by which it was notified that Ms.Vijaylaxmi Joshi, Joint Secretary to the Government of India, in the Ministry of Commerce and Industry, Department of Commerce shall discharge the function of the Designated Authority. The investigation which was initiated by the Designated Authority was accordingly continued with Ms.Vijaylaxmi Joshi as Designated Authority.

6. On 27 May 2011, the Press Information Bureau of the Union Ministry of Personnel, Public Grievances and Pensions notified that the Appointments Committee of the Cabinet had approved the appointment of Ms.Vijaylaxmi Joshi as Additional 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 VBC 5 WP6791.11-14.10 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- dumping duty.3 The Designated Authority has issued its final findings of the anti-dumping investigation, recommending a definitive anti- dumping duty on 25 August 2011.

8. According to the Petitioner, the preliminary findings that 3 Notification No.72/2011-Cus.
VBC 6 WP6791.11-14.10 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 of India in the Department of Commerce of the Ministry of Commerce and Industry was alone appointed as Designated VBC 7 WP6791.11-14.10 Authority for the purposes of the Rules. Ms.Vijaylaxmi Joshi was promoted to the post of Additional Secretary on 5 May 2011 and could not have, it is urged, exercised jurisdiction as Designated Authority on and after that date. Hence, when she issued her preliminary findings on 27 June 2011, the jurisdiction of a Designated Authority could not have been exercised by Ms.Joshi, who had ceased to hold the post of Joint Secretary. Though the Union Government by a subsequent notification dated 20 July 2011 stipulated that a person not below the rank of Joint Secretary would be a Designated Authority for the purposes of the Rules, this, it was urged, was to operate with prospective effect since it was not to affect things done or omitted to be done before the notification. Moreover, it was urged that the notification being an administrative act, in pursuance of subordinate legislation, could not have retrospective effect and there would be no occasion to ratify the earlier act done by the Designated Authority on 27 June 2011 of issuing preliminary findings.
10. The Union Government has filed an affidavit in reply in VBC 8 WP6791.11-14.10 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 the Designated Authority. VBC 9 WP6791.11-14.10
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 VBC 10 WP6791.11-14.10 submits that under Rule 20(2)(a) of the Rules, where a provisional duty has been levied and where the Designated Authority has recorded either a final finding of injury or a final finding of threat of injury coupled with a finding that the effect of dumped imports in the absence of provisional duty would have led to injury, anti dumping duty may be levied from the date of the imposition of provisional duty. Consequently, it was urged on behalf of the Petitioner that the challenge to the preliminary findings would still survive despite the final findings in view of the fact that if the challenge is accepted, the levy of anti-dumping duty would operate with effect from the date of the final notification and would not relate back to the date of the imposition of a provisional duty. Having regard to these provisions of Rule 20(2)(a), we have considered it appropriate to hear the challenge to the preliminary findings. In the event that the Petitioner succeeds in the present proceedings, then it is evident under Rule 20(2)(a) that even if the final findings were to be valid, the anti- dumping duty would take effect not from the date of the imposition of the provisional duty, but from the date of the final notification. We, VBC 11 WP6791.11-14.10 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 VBC 12 WP6791.11-14.10 normal value, export price and the margin of dumping in relation to the 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.
VBC 13 WP6791.11-14.10
15. In the present case, the facts on record would indicate that though initially by a notification dated 12 December 2000, the Central Government appointed the Additional Secretary in the Department of Commerce of the Ministry of Commerce and Industry as designated authority, on 11 February 2011, in modification of the earlier notification, it came to be stipulated that a Joint Secretary in that ministry would be appointed as Designated Authority. Ms.Joshi came to be notified as Designated Authority on 14 February 2011 by the Ministry of Commerce and Industry. On that date, as the order notifying her appointment states, she held the rank of Joint Secretary to the Government of India. When Ms.Joshi commenced the investigation, she was, therefore, clearly within the purview of the notification dated 12 December 2000 as amended on 11 February 2011. During the pendency of the investigation, Ms.Joshi came to be promoted as Additional Secretary to the Government of India in the Department of Commerce with effect from 5 May 2011 by upgrading the post which she had held to its original level. On 20 July 2011, the Central Government notified in exercise of the powers conferred by VBC 14 WP6791.11-14.10 Rule 3(1) that a person not below the rank of Joint Secretary to the Government of India would be appointed as Designated Authority. Following this, on 28 July 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 VBC 15 WP6791.11-14.10 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 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. VBC 16 WP6791.11-14.10 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 situation such as the present, is an issue which we have to decide. The de facto doctrine is postulated on the principle that the act of an officer holding a public office or of the holder of a judicial office would be regarded as being valid in law in certain circumstances even though his own appointment is invalid and the officer or Judge concerned has in a strict legal sense no power. The de facto doctrine was evolved in order to balance the absence of power on the one hand with the consequence emanating from an annulment of the act or the decision of the officer consequent upon a finding of an invalidity in his appointment. Holding that the consequence of an invalid appointment would result in a nullification of his official acts would lead to serious public consequences and in many cases a result which would not coalesce with the public interest in ensuring repose in official acts and decisions. In India, the de facto doctrine was the subject matter of judicial decisions since the early years of the VBC 17 WP6791.11-14.10 Twentieth century. The doctrine was recognized in a decision of Sir Asutosh Mookerjee, J. in Pulin Behari vs. King Emperor.4 The decisions on the subject were adverted to in the leading judgment of the Supreme Court in Gokaraju Rangaraju vs. State of Andhra Pradesh.5 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 4 (1912) 15 Cal LJ 574
5 (1981) 3 SCC 132
VBC 18 WP6791.11-14.10 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 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 the public policy to prevent needless VBC 19 WP6791.11-14.10 confusion and endless mischief. The de facto doctrine is doctrine born out of necessity.

18. Apart from this principle, there is a second principle which underlies the de facto doctrine. The second principle is that a defective appointment of a de facto Judge may be questioned directly in a proceeding to which the Judge is a party, but cannot be permitted to be questioned in a litigation between two private litigants which has no consequence to the Judge except his position as a Judge. The Supreme Court has, in this context, observed as follows: "A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The 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 VBC 20 WP6791.11-14.10 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 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.6 In 6 (1987) 3 SCC 367
VBC 21 WP6791.11-14.10 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,7 a Bi-partite 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 was still in service retired a few days thereafter, but continued to hold an enquiry and to act as disciplinary authority. The issue before the Supreme Court was whether the decision rendered by him could be protected under the de facto doctrine. The origin and rationale for the de facto doctrine was explained in the following observations : 7 (1991) 1 SCC 319
VBC 22 WP6791.11-14.10 "The de facto doctrine has two requisites, namely (i) the possession of the office and the performance of the duties attached thereto, and (ii) colour of title, that is, apparent right to the office and acquiescence in the possession thereof by the public. According to this doctrine the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers. ... It, therefore, seems clear to us that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as efficacious as those made by a de jure officer. The same 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 VBC 23 WP6791.11-14.10 case as a person who was the holder of the office, but was merely a Bank employee or for that matter an ex-employee.

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.8 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 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 8 (2000) 5 SCC 742
VBC 24 WP6791.11-14.10 only to the acts and decisions of Judicial Officers. A judgment of a Division Bench of this Court in Manohar P.Kharkhar vs. Raghuraj,9 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: where there is some unknown flaw in the appointment or authority of some officer or judge. The acts of the officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no power at all. The logic of annulling his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so.10 In such a case he is called an officer or judge de facto, as opposed to an officer or judge de jure."
9 (1981) II LLJ 459
10 Fawdry & C. v. Murfitt (Lord Chancellor intervening), [2002] 3 WLR 1354 (CA). This passage was similarly relied upon in Baldock v. Webster, [2004] EWCA Civ 1869, [2006] QB 315, (para 10, Laws, L.J.). See also, Waterloo Bridge Co. v. Cull, [1859] 1 E&E 245. VBC 25 WP6791.11-14.10
25. More recently, the de facto doctrine has been relied on in the case of Coppard v HM Customs & Excise.11 There, the court held that the acts of a circuit judge who had heard the action being challenged had been invalidly appointed since he had not been authorized by the Lord Chancellor. The court held that the judgment itself was unassailable on this ground due to the operation of the de facto doctrine.

26. In the United States, the doctrine has been enunciated on as early as 1886 in Norton v. Shelby County12 (though it was not at the time known by its present name, the "de facto officer doctrine"). In Ball v. United States13, the doctrine was applied where a judge sat in the place of a recently deceased judge until his successor was duly appointed, even though de jure he did not have authority to do so. Similarly, in McDowell v. United States14, a Circuit Judge assigned a Judge from the Eastern District of North Carolina to sit as a District 11 [2003] QB 1428.
12 118 U.S. 425 (1886) at 442.
13 140 U.S. 118 (1891) at 128-9.
14 159 U.S. 596 (1895) at 601.
VBC 26 WP6791.11-14.10 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 States15, 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 States16, 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 15 515 U.S. 177 (1995) at 180.
16 539 U.S. 69, 123 S. Ct. 2130, 156 L. Ed. 2d 64 (2003). VBC 27 WP6791.11-14.10 person's appointment or election to office is deficient.
27. The position of American law has been clearly enunciated in American Jurisprudence (2nd Edition):17
"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 to overturn a judgment on a technicality and to prevent the overturning of judgments on the ground of error, however minor, in the title to office of the judge who rendered it." The Corpus Juris Secundrum further adds:
"Generally, the official acts of a de facto judge, or a judge who functions under color of authority but whose authority is 17 46 Am. Jur. 2d., Judges § 231.
VBC 28 WP6791.11-14.10 defective in some procedural form, are valid, at least as far as the public and third persons are concerned. Thus, the acts of a de facto judge may not be collaterally attacked or subject to question on jurisdictional grounds, and a party's failure to object to a de facto judge's authority to preside constitutes waiver of the issue. The title of a de facto judge cannot be determined in an action tried before such individual or, generally, on an appeal." 18
"A person will be deemed a de facto judge only if he or she is in possession of the office of judge and is discharging its duties. A judge who holds over after his or her term has expired or a judge who remains on the bench after having reached retirement age may, therefore, be a de facto judge."19
28. The principal argument which has been urged on behalf of the Petitioner to assail the applicability of the de facto doctrine in the present case is that what the doctrine forecloses is a collateral challenge to 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 18 48A C.J.S. Judges § 179, De facto judges.
19 48A C.J.S. Judges § 8, Judges, de jure and de facto. VBC 29 WP6791.11-14.10 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 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 VBC 30 WP6791.11-14.10 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 Co-operative Transport Ltd.20 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 the Labour Court. The award of the Labour Court was sought to be questioned in proceedings under Articles 226 and 227 of the Constitution to which the concerned Judge was impleaded as a party. The Supreme Court held that the appointment of the Judge was clearly not legal and his award was without jurisdiction. However, the 20 (1977) 1 SCC 271
VBC 31 WP6791.11-14.10 award was sought to be defended by the State Government on the ground that the appointment of the Judge could not be challenged in a collateral proceeding for challenging the award. The Supreme Court held that the proceedings by way of a Writ Petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so-called judicial decision, but the proceeding was taken principally and predominantly for challenging the appointment itself. The decision turned therefore on an assessment by the Court of the nature of the challenge. A person whose only experience was of a clerk is an intruder upon judicial office, an imposter. Ultimately it is on the basis of the facts of each case, the the Court must decide as to whether a challenge is principally and predominantly to the appointment of a Judge or for challenging a decision. The decision in Haryana Co-operative Transport case is distinguishable on the ground that, that was a situation where a usurper 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 VBC 32 WP6791.11-14.10 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 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 VBC 33 WP6791.11-14.10 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 of the Designated Authority. In these circumstances, it cannot by any means be suggested that Ms.Joshi was an officer, who can be regarded as a usurper or intruder in office. Her initial appointment was valid and if there was indeed any cause for a hypothetical doubt originating in her subsequent VBC 34 WP6791.11-14.10 promotion as Additional Secretary, it was set at rest by the subsequent notification allowing the appointment of an officer not below the rank of Joint Secretary to fulfill the role of Designated Authority. The de facto doctrine fulfills a broad public purpose. The underlying basis of the doctrine is to protect the public interest as opposed to the private interest of either an officer or, as the case may be, of a party before him. The de facto doctrine has to be applied in a situation which mandates the application of doctrine to protect the public interest in ensuring that official acts are not nullified upon a defect in the appointment of the holder of a public office. The writ of quo warranto is a writ which does not emanate as a matter of right. This was laid down in a decision of Chief Justice M.C. Chagla speaking for a Division Bench of this Court in Bhairulal Chunilal vs. State of Bombay.21 The Learned Chief Justice while emphasizing that the writ of quo warranto is not issued as a matter of right held that it is a discretionary 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 21 A.I.R. 1954 Bombay 116
VBC 35 WP6791.11-14.10 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. VBC 36 WP6791.11-14.10
31. The Petition is accordingly dismissed. There shall be no order as to costs.
( Dr.D.Y.Chandrachud, J.)
( A. A. Sayed, J.)

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