2011 (10) TMI 379 - HC - Customs

Anti dumping duty - Rule 12 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Opal Glassware - de facto doctrine - Ms.Joshi came to be notified as Designated Authority on 14 February 2011 by the Ministry of Commerce and Industry. - 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 - 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 - 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 - Held 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 - Petition is dismissed

Summary

Issues Involved:
1. Jurisdiction of the Designated Authority.
2. Validity of preliminary findings issued by the Designated Authority.
3. Application of the de facto doctrine.
4. Maintainability of the Petition under Article 226 of the Constitution.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Designated Authority:
The Petitioner challenged the jurisdiction of Ms. Vijaylaxmi Joshi to act as the Designated Authority on the date of issuing preliminary findings (27 June 2011), arguing that upon her promotion to Additional Secretary on 5 May 2011, she ceased to hold the post of Joint Secretary, thus losing jurisdiction. The Union Government's notifications and subsequent orders were scrutinized to determine if Ms. Joshi retained her jurisdiction post-promotion.

2. Validity of Preliminary Findings Issued by the Designated Authority:
The Petitioner contended that the preliminary findings issued by Ms. Joshi should be quashed as she lacked jurisdiction after her promotion. The Union Government's affidavit and subsequent notifications clarified that Ms. Joshi continued as the Designated Authority despite her promotion, and the Ministry of Commerce and Industry confirmed her role post-promotion.

3. Application of the De Facto Doctrine:
The Court applied the de facto doctrine, which validates the acts of an officer who holds office under color of lawful authority, even if the appointment is later found defective. The Court cited precedents from Indian and international jurisprudence, emphasizing that the doctrine prevents public and private mischief by upholding acts performed by officers who assumed office under apparent authority. The Court concluded that Ms. Joshi's actions as Designated Authority were protected under this doctrine.

4. Maintainability of the Petition under Article 226 of the Constitution:
A preliminary objection was raised regarding the Petition's maintainability since final findings had been issued. The Court overruled this objection, noting that if the challenge to the preliminary findings succeeded, the anti-dumping duty would take effect from the final notification date, not the provisional duty date. The Court decided to hear the challenge to the preliminary findings, considering the implications under Rule 20(2)(a) of the Rules.

Conclusion:
The Court upheld the preliminary findings issued by Ms. Joshi, applying the de facto doctrine to validate her actions despite the jurisdictional challenge. The Petition was dismissed, with the Court leaving open the Petitioner's right to challenge the final findings through appropriate legal remedies.