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Judgment
Syed Shah Mohammed Quadri, J.—The petitioner was appointed as Rakshak (subsequently designated as constable) in the South Central Railway Protection Force of Vijayawada Division in 1962. On the allegation of theft of 49 ''bhogi shackle used pins'' on 31-10-1979, disciplinary proceedings were initiated against him and he was removed from service by the Assistant Security Officer on 14-10-1983. He unsuccessfully appealed to the Security Officer. His appeal was dismissed on 19-9-1984. Then he filed a Second Appeal before the Deputy Inspector General of R.P.F., South Central Railway, the 1st respondent herein. That appeal was also dismissed by the 1st respondent on 4-10-1985. The petitioner challenges the validity of the said order of the 1st respondent by praying for a writ of mandamus to declare that order as illegal and without jurisdiction and for a further direction to reinstate the petitioner with all consequential and incidental benefits.
The petitioner submits that the Railway Board by proceedings dt. 15-91983 withdrew the powers of the Assistant Security Officer to impose punishment of removal from service on a Rakshak (constable) and conferred the said power on the Security Officer. Therefore, the order passed by the Assistant Security Officer, removing the petitioner from service was wholly without jurisdiction. The 2nd respondent filed a counter-affidavit for the respondents. The particulars of the petitioner and the proceedings relating to imposition of penalty of removal, are not disputed. It is admitted that the schedule of powers was revised by the Railway Board which was communicated through the letter dt. 15-9-1983, pursuant to which the Assistant Security Officer is not competent to impose punishment of removal from service on a Rakshak. But it is contended that the said circular was received by the Assistant Security Officer after issuing the final orders of removal. The Railway Board order was received in the office of the Divisional Security Officer on 1-12-1983, whereas the order of removal was passed on 14-10-1983. As the Assistant Security Officer did not receive the circular, his power to impose the penalty was not affected and therefore, there is no illegality in the order of removal passed by the Assistant Security officer as confirmed by the Security Officer and the 1st respondent. In the circumstances it is prayed that the Writ Petition may be dismissed.
Mr. J.M. Naidu, learned counsel for the petitioner, submits that on the date the 3rd respondent passed the order of removal of the petitioner from service, he had no power to impose that penalty therefore, the impugned order has to be quashed.
Mr. C. Ramakrishna, learned Standing Counsel for the Railways, on the other hand, contends that when the proceedings were initiated the 3rd respondent had power and on the date when the impugned order of removal was passed by him he was not aware of the withdrawal of his power as the said order was not communicated to him, so the order cannot be without jurisdiction.
On those rival contentions the question that arises for consideration is, whether the order passed by the 3rd respondent is without jurisdiction?
It is the admitted case of both the parties that on 15-9-1983 the Railway Board revised the Schedule of powers, so consequently the 3rd respondent (Assistant Security Officer) ceased to be the competent authority to impose punishment of removal from service of a Rakshak. But that circular was not received by the 3rd respondent before the impugned order was passed by him. He received the circular only on 1-12-1983, after 1 1/2 months of passing of the impugned order. So it follows that on the date the impugned order of removal of the petitioner from service was passed by the 3rd respondent on 14-10-1983, the 3rd respondent did not have the power to impose the penalty of removal from service on a Rakshak (Constable). The first respondent noted, in the impugned order, that in view of the letter of the Railway Board dt. 15-9-1983, the Assistant Security Officer was not competent to impose punishment of removal from service on a Rakshak. However, he upheld the order of the 3rd respondent on the ground that the 3rd respondent received the Railway Board''s letter after the order of termination was passed by him and consequently there was no failure of natural justice. In my view, the fact that on the date of initiation of disciplinary proceedings the 3rd respondent has power to pass order of removal is immaterial and as on the date when the impugned order of removal was passed by the 3rd respondent, his power to impose the punishment of removal from service on a Rakshak admittedly stood withdrawn, the order is clearly without jurisdiction. Therefore the impugned order cannot be sustained.
In The Trichinopoly City Co-operative Bank Limited v. The Additional Commissioner for Workmen''s Compensation, Madras 1957 (2) M.L.J. 185 an appeal was filed u/s 41 of the Madras Shops and Establishment Act before the Commissioner for Workmen''s Compensation. During the pendency of the appeal, the establishment in that case was exempted from the provisions of the Act by notification issued u/s 6 of that Act and consequently the Commissioner ceased to have jurisdiction in respect of the establishment in question. However, the Commissioner set aside the order of removal of the employee and directed his reinstatement. It was contended that when the commissioner entertained the appeal he had jurisdiction to do so, the subsequent withdrawal of the power could not take away his jurisdiction. The contention was rejected and it was held that to sustain the validity of the order passed by the Commissioner the jurisdiction of the Commissioner should exist throughout the proceedings i.e., both at the time of its institution and at the time of its final disposal. I am in respectful agreement with the view expressed by the learned judge of the Madras High Court.
In Ram Sukh Misra v. Deputy Chief Security Officer, Northern Railway 1983 (2) S.L.J. 501 the question of validity of removal of a Rakshak from service by the Security Officer, fell for consideration of a Division Bench of the Allahabad High Court. It was held that u/s 6 of the Railway Protection Force Act as well as under the agreement, the Chief Security Officer who was the appointing authority alone could terminate the services of a Rakshak. As the termination of the service of a Rakshak was made by the Security Officer, the order of termination was held to be void.
Mr. C. Ramakrishna, however, contends that in view of the de facto doctrine, the order passed by the 3rd respondent would be a valid order. He relies on the Judgment of this Court in Immedisetti Ramkrishnaiah Sons, Anakapalli and Others Vs. State of Andhra Pradesh and Another, .
Before adverting to this case it will be apt to note the de facto doctrine. This doctrine provides that when a judge who is not a mere intruder or usurper but helds office under colour of lawful authority, pronounces judgments and does other acts within the scope of the assumed authority of the office, in the interest of the public or third persons and not for his own benefit, such judgments and acts will be regarded as valid and binding, notwithstanding that his title to the office has subsequently been adjudged as irregular or illegal. This doctrine was established in England in the 15th Century and is accepted and applied in U.S.A. and India. It is based on public policy and necessity. The essential elements of the de facto doctrine are:
(i) a judge should have acted under colour of lawful authority;
(ii) while acting as such he passed judgments or did acts within the scope of the assumed authority;
(iii) those judgments or acts were in the interest of public or third persons and not for his own benefit;
(iv) subsequently his assumption of office has been held invalid in law; then all the judgments pronounced by him and acts done by him will be regarded as valid and binding as if there was no defect in his title to the office.
In that case the government nominated persons u/s 5(1 )(i) of A.P. Agricultural Produce and Livestock Markets Act, to constitute a Market Committee. The Market Committee issued declaration of the market area, it was acting under the nomination issued by the authority which was by then valid. It was only after the said action of the committee that the nomination was declared to be illegal by the High Court. A Division Bench of this Court applied the de facto doctrine of Market Committee and held that the acts done by the committee in the interregnum as do facto committee were valid. Chinnappa Reddy, J. (as he then was) speaking for the Division Bench observed-
"Though the Allahabad and the Andhra Pradesh High Courts were concerned with the question of the validity of judgments of de facto judges, the very observations of the learned judges extracted by us show that the defacto doctrine is a doctrine of general applicability which may properly be invoked to validate acts of de facto public officers. We have, therefore, no doubt that the declaration of market area published in the Andhra Pradesh Gazette on 5-3-1970 is valid despite the fact that the Market Committee was illegally constituted."
But in the instant case, the requirements of the doctrine are not satisfied inasmuch as it is not a case of assumption of office under colour of lawful authority and the impugned order passed by the third respondent was not within the jurisdiction of the Assistant Security Officer. Therefore, this case does not help the respondents.
In Gokaraju Rangaraju Vs. State of Andhra Pradesh, the question was, what was the effect of a declaration made by the Supreme Court that the appointment of an Addl. Sessions Judge was invalid, on the judgments pronounced by the Judge prior to such declaration? That question was raised in a criminal case arising out of the judgment passed by the judge whose appointment was declared to be illegal by the Supreme Court. Here speaking for the Supreme Court, Chinnappa Reddy, J. quoted with approval the elucidation of the doctrine by Sir Asutosh Mookerjee, J. in Pulin Behari v. King Emperor (1912) 15 Cal. L.J. 517 in the following words:
"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."
His lordship summarised the principle thus:
"A judge de facto therefore is one who is not a mere intruder or usurper but one who held 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."
It was held that the judgments pronounced by the Addl. Sessions Judge, prior to such declaration were not void. For the reasons already mentioned above, this judgment also does not help the respondents.
From the above discussion it follows that the de facto doctrine does not apply to the facts of this case. Consequently, the order passed by the third respondent on 14-10-1983 removing the petitioner from service is declared as illegal and without jurisdiction. For the same reasons the order of the second respondent dated 19-9-1984 and the impugned order of the first respondent dated 4-10-85 are also declared as invalid in law. The respondents are directed to reinstate the petitioner into service with all incidental and consequential benefits, but as the petitioner raised the question of jurisdiction of the third respondent in passing the order of his removal from service for the first time before the first respondent, he will not be entitled to back wages from the date of removal (14-10-1983) to the date of the impugned order of the first respondent (4-10-1985). However, this judgment does not preclude the appointing authority from passing orders afresh in accordance with law.
The Writ Petition is accordingly allowed, but in the circumstances without costs.