ivil Appeal No 3071 of 1988
 199 From the Judgment and Order dated 841988 of the Karna taka High Court in Writ Appeal No 563 of 1988
Narayana B Shetye DN Misra and OC Mathur for the Appellant
SR Bhatt for the Respondent
The Judgment of the Court was delivered by AHMADI J
The short question which arises in this appeal by special leave is whether the departmental enquiry entrusted to and conducted by a Bank official stands vitiat ed if the said official proceeds with the enquiry and con cludes the same after his superannuation
during the penden cy of the enquiry The High Court of Karnataka has held that such an enquiry is incompetent and without jurisdiction and therefore null and void
The facts giving rise to this appeal briefly stated are as under The respondent C Bernard while serving as a Relieving Head Cashier in the KG Road Branch of the Bank in Banga lore city availed of 15 days leave from April 17 1978 to May 1 1978 and was allowed an advance of Rs2500 on April 1978 under LFC to be adjusted later on his submitting the LFC Bill
He submitted a bill for Rs2800 on May 5 1978 along with a stamped cash receipt purported to have been issued by Ms Shri Manju Travels of Bangalore and claimed reimbursement for the same
The said bill was passed by the bank on May 15 1978 but subsequent investigations revealed that the firm of Ms Shri Manju Travels was a spurious one which indulged in issuing fake travel receipts
Thereupon the respondent was served with a Memo dated August 1 1978 by the Divisional office of the Bank calling for his expla nation
A letter was also addressed on the same day to Ms Shri Manju Travels Bangalore requesting them to furnish the details of the persons who traveled and the amounts received by the said firm
No reply was received from the said firm but the respondent sent a reply on August 10 1978 which was not found to be satisfactory
Some correspondence ensued between the respondent and the appellant in this connection but finally the respondent was served with the charge sheet dated October 12 1978 which was followed by a departmental enquiry
It is not necessary to go into the details in regard to proceedings at the departmental enquiry but it would be sufficient to state that the respondent participat ed in the departmental enquiry till it was completed by the enquiry officer Shri UB Menon
200 Paragraph 914 of the Memorandum of Bi partite Settle ment dated October 19 1966 empowers the Chief Executive Officer etc of he Bank to decide which officers would be empowered to hold enquiry and take disciplinary action in the case of each office or establishment
Accordingly Shri UB Menon Special Officer was appointed an Enquiry Offi cer under the Chief Executive Officer s Order dated January 9 1979 which reads as under Pursuant to the powers vested in the Executive Director by the Chairman and Managing Director of the Bank as per his office Order dated 20th December 1978 authorising him to appoint Enquiry Officers and Appellate Authorities under the provisions of Chapter 19 of the Bi partite Settlement dated 19th October 1966 the undersigned is pleased to appoint Shri UB Menon Special Officer to work as an Enquiry Officer to hold and conduct departmental enquiries against the members of the staff governed by the provisions of the Award and Bi partite Settlement and to pass necessary orders under the provisions of Chapter 19 of the Bi partite Settlement dated 19th October 1966
 By a subsequent circular dated January 17 1979 all offices of the Bank were informed about the appointment
Shri UB Menon was intimated about the same by the Assistant General Manager s letter dated January 23 1979
The said Enquiry Officer conducted the departmental enquiry against the respondent
However during the pendency of the departmental enquiry he retired from service on January 31 1979
Not withstanding his retirement he continued to function as an Enquiry Officer and concluded the enquiry against the re spondent by the end of 1979
He then gave an opportunity to the respondent to be heard on the question of punishment and then passed the impugned order of discharge on January 14 1980
The respondent s departmental appeal was also dis missed on June 17 1980
The respondent did not raise any objection against the continuance of the enquiry by the said Shri UB Menon at any time during the pendency and till the disposal of the departmental appeal preferred by him
Suf fice it to say that he raised this objection for the first time in Writ Petition No 18 140 of 1980 filed against the impugned order of discharge in the High Court
A learned Single judge of the High Court by his order dated January 18 1988 came to the conclusion that on the retirement of Shri UB Menon he was nobody in the hierarchy of authorities  to impose 201 punishment on the respondent and hence the order imposing punishment was clearly incompetent and without jurisdiction
The argument that since the impugned order of discharge got merged in the appellate order the initial defect if any stood removed was repelled by the learned Judge on the ground that as the original order was without jurisdiction or competence there was nothing for the Appellate Authority to confirm 
The learned Single Judge therefore allowed the writ petition quashed the impugned order of punishment and directed that the respondent be paid all consequential benefits
The appellant preferred a Letters Patent Appeal against the said order of the learned Single Judge
The Division Bench of the High Court which heard the appeal dismissed it by a one line order no ground for interfer ence is made out 
It is against this order that the appel lant has approached this Court under article 136 of the Consti tution
Shri Narain Shetye the learned counsel for the appel lant strongly urged that the High Court ought not to have permitted the respondent to question the competence or jurisdiction of Shri UB Menon to act as an Enquiry Officer as well as a Disciplinary Authority after his superannuation since he had participated in the enquiry throughout without a demur
According to him by conduct the respondent was estopped from raising such a contention for the first time in a writ petition more so because he had submitted to the jurisdiction of Shri UB Menon and there was no prejudice caused on him on that account
Lastly he submitted that even otherwise the appellant could have appointed a non official as an Enquiry Officer and therefore his decision could be saved on the de facto doctrine
Taking the last submission first we think that in the facts and circumstances of this case the de facto doctrine can have no application
Under paragraph 1914 of the by parties agreement the Chief Executive Officer was entitled to decide which officer should be empowered to hold an enquiry and take disciplinary action in the case of each office or establishment
Under this paragraph only an offi cer of the bank could be empowered to hold an enquiry and take disciplinary action against a delinquent
The names of officers so empowered were required to be published on the bank s notice board
Accordingly Shri UB Menon was ap pointed an Enquiry OfficerDisciplinary Authority under paragraph 1914 of the bi partite agreement while he was still in service
It is indeed surprising that an officer who was due to retire within a few days only was chosen to act as an Enquiry Officer and Disciplinary Authority by the order dated January 9 1979
Shri UB Menon was intimated about his appoint 202 ment by the letter of January 23 r979 ie hardly a week before his superannuation on January 31 1979
After his retirement from service he proceeded with the enquiry and concluded it by the end of 1979
The respondent was then served with a second show cause notice on the question of punishment and thereafter the impugned order of discharge was passed on January 14 1980
There is nothing on the record to show that any formal decision was taken by the appellant to continue the services of Shri UB Menon as an official of the bank
Shri Shetty is right when he contends that an Enquiry Officer need not be an officer of the bank even a third party can be appointed as Enquiry Officer to enquire into the conduct of an employee
See Saran Motors P Ltd vs Vishwanath  Anr But there can be no doubt that a non official cannot act as a Disci plinary Authority and pass an order of punishment against the delinquent employee
It is for this reason that the learned Single Judge of the High Court observed that on retirement Shri UB Menon was nobody in the hierarchy of authorities to impose punishment on the delinquent
He therefore held that the order of punishment was clearly incompetent and without jurisdiction
The learned counsel for the appellant submitted that since the initial appoint ment of Shri UB Menon was valid his actions and decisions could not be invalidated by his subsequent retirement
According to him he continued to function as an Enquiry Officer de facto and hence his actions and decisions were saved
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 posses sion 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
This doctrine dates back to the case of Abbe de Fontaine decided way back in 1431 to which reference was made by Sir Asutosh Mookerjee 3
in Pulin Behari Das vs King Emperor 1911 12 16 Calcutta Weekly Notes 1105 at 1120
Mookerjee J held that as the complaint was made after complying with section 196 Criminal Procedure Code by the order of or under authority from Local Government which was de facto the proceedings were valid
On the same principle it was further held that the Court of Sessions assuming it was not the holder of a de jure office was actually in possession of it under the colour of title which indicated the acquiescence of the public in its actions and hence its authority could not be collaterally impeached in the proceedings arising from the conviction of Pulin and his co accused
Again in Immedisetti Ramkrishnaiah Sons 203 vs State of Andhra Pradesh AIR 1976 AP 193 the Govern ment nominated nine persons on a Market Committee which nomination was later set aside by the High Court
However before the High Court pronounced its judgment the Market Committee had functioned as if it had been properly consti tuted
Between the date of its constitution and the date of the High Court decision it had taken several decisions issued notifications etc which were the subject matter of challenge on the ground that its constitution was ab initio bad in law
Chinnappa Reddy J relying on the observations of Mookerjee J in Pulin s case concluded that the acts of the Market Committee de facto performed within the scope of its assumed official authority in the interest of the public or third persons and not for his own benefit are generally as valid and binding as if they were performed by a de jure Committee
The Allahabad High Court in Jai Kumar vs State 1968 All
LJ 877 upheld the judgments of the District Judges whose appointments were later struck down by this Court on the principle that the acts of officers defac to are not to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure or except when the person himself attempts to build up some right or claim some privilege or benefit by reason of being the officer which he claims to be
In all other cases the acts of an officer de facto are valid and effec tual while he is suffered to retain the office as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of the third parties
This Court in Gokaraju Rangaraju vs State of AP  1981 SC 1473 was required to consider the question of the effect of the declaration of this Court holding the appointment of an Additional Sessions Judge invalid on judgments pronounced by him prior to such declaration
This Court observed that the defacto doctrine is rounded on good sense sound policy and practical experi ence
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
It there fore 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
In our view the submission of Shri Shetty based on the defacto doctrine is clearly misconceived
Shri UB Menon can hardly be described as a person occupying or being in possession of an office to 204 which certain duties affecting the members of the general public can be said to be attached
The de facto doctrine as explained earlier envisages that acts performed de facto by officers within the scope of their assumed official authori ty are to be regarded as binding as if they were performed by officers de jure
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
But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office
Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee for that matter an ex employee
We there fore see no merit in this contention 
True it is that the respondent did not attribute any bias or mala fides to the Enquiry Officer nor did he com plain that he was in any manner prejudiced on account of the said Enquiry Officer conducting he domestic enquiry but that will not cure the defect as to his compensence
Where pun ishment is imposed by a person who has no authority do so the very foundation on which the edifice is built collapses and with and it fails the entire edifice
It is a case more or less akin to a case tried by a court lacking in inherent jurisdiction
We are therefore of he opinion that absence of bias prejudice or mala fides is of no consequence so far as the question of competence is con cerned
The cases which were cited at the bar i Delhi Cloth and General Mills Co Ltd vs Labour Court Tis Hazari  Ors and ii Saran Motors supra also have no application to the special facts and circumstances of this case
Shri Shetye next submitted that if a third party non official can validly be appointed an Enquiry Officer though not Disciplinary Authority his report upto the stage pre ceding the issuance of a second how cause notice could be saved because both sides to the proceedings had not raised any objection to the continuance of the enquiry by the said Enquiry Officer and therefore the High Court ought to have remitted the matter to the competent Disciplinary Authority to take a fresh decision based on the report of the Enquiry Officer
To put it differently according to the learned counsel for the appellant the High Court should have re manded the matter with a direction that the competent Disci plinary Authority will proceed to dispose of the departmen tal enquiry from the stage of the report submitted by the Enquiry Officer
We would have considered it necessary to examine this submission had the delinquent not retired in the meantime on August 21 1986
The High Court pronounced its Judgment thereafter 205 on January 18 1988
No useful purpose therefore can be served by adopting the procedure suggested by Shri Shetye as the respondent had admittedly retired from service in 1986 and if the order imposing punishment is quashed he would ordinarily have to be paid his wages etc upto the date of his retirement
We therefore do not think that in the facts and circumstances of this case the course suggested by Shri Shetye can be usefully adopted
Lastly Shri Shetye submitted that in any event the respondent succeeded in getting the order of punishment quashed on a mere technicality and that too on the conten tion belatedly raised before the High Court for the first time and therefore the High Court was in error in direct ing payment of all consequential benefits
We think there is merit in this contention
If the objection was raised at the earliest possible opportunity before the Enquiry Officer the appellant could have taken steps to remedy the situation by appointing a competent officer to enquire into the charges before the respondent s retirement from service
It is equally true that the penalty has not been quashed on mer its
On the contrary if one were to go by the charge le velled against the respondent and the reply thereto one may carry the impression that the respondent had made the claim on the basis of the fake receipt whether the respondent himself was duped or not would be a different matter
The fact however remains that the impugned order of punishment has to be quashed not because the merits of the case so demand but because the technical plea of incompetence suc ceeds
In the circumstances we think that the ends of justice would be met if instead of directing all consequen tial benefits  the appellant is ordered to pay 50 of the consequential benefits  to which the respondent would be entitled on superannuation
For the above reasons we are of the opinion that the High Court was right in quashing the impugned order of punishment but we think having regard to the special facts and circumstances pointed out earlier it should not have ordered payment of all consequential bene fits  flowing from the declaration that the impugned order was bad in law
We therefore modify this part of the order by substituting the words fifty percent  in place of the word all  in the penultimate paragraph of the learned Single Judge s order
To put the matter beyond the pale of doubt we clarify that the respondent will be paid 50 of the consequential benefits and not all the consequential bene fits
Except for this modification the rest of the order of the High Court will stand
The appeal will stand allowed to the above extent but in the facts and circumstances of this case we think the parties should be directed to bear their own costs
TNA Appeal allowed partly


Summary:
The Respondent landlord filed a suit under the Andhra Pradesh Rent Control Act for recovery of possession and for mesne profits
The apPellant defendant raised a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit
In the two eviction petitions filed earlier by the appellant the Respondent took the plea that since the alleged tenancy was hit by Section 3 of the AP Rent Control Act eviction suit was not entertainable by the Rent Controller
Decreeing the suit in favour of the appellant the trial Court held that it was not oPen to the Respondent to take such inconsistent plea regarding jurisdiction that he cannot be allowed to approbate and reprobate and he was estopped from doing so
On apPeal by respondent the deci sion was upheld by the First Appellate Court
On a second apPeal preferred by the respondent the High Court reversed the trial court s order
Aggrieved by the decision of the High Court the appel lant preferred this apPeal by special leave contending that the principles of Res Judicata and estopPel were ap plicable
Dismissing the apPeal this Court HELD 1
A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata
It is well settled that there can be no estop pel on a pure question of law
217F 214 Mahtura Prasad Bajoo Jaiswal and Ors
vs Dossibai NB Jeejeebhoy   Sushil Kumar Mehta vs Gobind Ram Bohra dead thro  his Lrs   relied on
Avtar Singh and Ors
vs Jagjit Singh and Anr   referred to
In the instant case the question of jurisdiction is a pure question of law
The High Court was right in its conclusions that in matters of jurisdiction to entertain the suit doctrine of estoppel could not be invoked and that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller
216A B