Principle of – Approbate and Reprobate

The law does not permit a person to both approbate and reprobate. The principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn around and say that it is void for the purpose of securing some other advantage.

In the case of Zila Dastavej Lekhak Association v. State of U.P., (1996) 8 SCC 441, while considering the challenge to the validity of Rule 6(2) of the U.P. Document Writers License Rules, 1977 by the licencees, it was held as under:

“The members of the petitioner-Association, having become the licensees under the Rules, are bound thereby. Firstly, the petitioner – Association being consisting of the members who obtained license under the Rules, cannot challenge the Rules under which they come to operate. The very source under which they come to operate either survives or perishes under the Rules. They cannot challenge that part of the Rules which is unfavourable to them while at the same time, respecting the favourable part thereof since they have no independent right de hors the Rules. They cannot challenge the power of the Inspector General of Registration in making the rules regulating conditions of the document writers and the conditions under which they become eligibile to be document writers.”

In the cases of NCTE v. Shyam Babu Maheshwari, (2011) 2 SCC 412 and Krishna Kumar v. Union of India, (1990) 4 SCC 207 and Union of India v. Kailas, (1998) 9 SCC 721, Hon’ble Supreme Court held that once an employee has opted for the Contributory Provident Fund Scheme, his exercise of option was final and he is not entitled to change over to the pension scheme because the two schemes are entirely different. Janki Prasad v. State of U.P., 2017 (135) RD 525.

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No Right Accrues – To Highest Bidder

In Laxmikant v. Satyawan, (1996) 4 SCC 208, it was held as under:
“The person making the highest bid shall have no right to take back his bid. The decision of the Chairman of the Board of Trustees regarding acceptance or rejection of the bid shall be binding on the said person. The acceptance of the highest bid shall depend on the Board of Trustees. The trust shall reserve to itself the right to reject the highest or any bid.”
In State of U.P. v. Vijay Bahadur Singh, (1982) 2 SCC 365 it was laid down that there is no obligation to accept the highest bid. The Government is entitled even to change its policy from time to time according to the demands of the time.
Thus, it is apparent and explicit that even if the public auction had been completed and the respondent was the highest bidder, no right had accrued to him till the confirmation letter had been issued to him. HUDA v. Orchid Infrastructure Developers (P) Ltd., (2017) 4 SCC 243.

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Statutory Instrument – Issued under a Repealed Enactment

Section 24 of the U.P. General Clauses Act, 1904 clearly provides that a statutory instrument issued under a repealed enactment shall continue in force and be deemed to have been made or issued under the re-enacted provisions unless:

  • The re-enacted provision expressly provides otherwise; or
  • It is superseded by a statutory instrument made under the re-enacted provision.

The section further provides that the extent to which the statutory instrument under the repealed enactment shall continue is “so far as it is not inconsistent with the re-enacted provisions.”

In Chief Inspector of Mines v. Karam Chand Thapar, (1962) 1 SCR 9, the question that fell for consideration was whether or not the regulations framed under the Mines Act, 1923 continued in force after its repeal by the Mines Act, 1952. The accused was prosecuted for the violation of the regulations framed under the 1923 Act. The appellants applied for the quashing of the criminal proceedings on the ground that they were prosecuted for the breach of the regulations that had ceased to exist by the repeal of the Mines Act, 1923. The regulations were “as if enacted in this Act”, and therefore, repealed alongwith the 1923 Act. Harkesh Chand v. Krishan Gopal Mehta, (2017) 4 SCC 537.

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Arbitration – Independence and Impartiality are two different concepts

Independence and impartiality are two different concepts. An arbitrator may be independent and yet, lack impartiality, or vice versa. Impartiality, as is well accepted, is a more subjective concept as compared to independence. Independence, which is more an objective concept, may, thus, be more straightforwardly ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the arbitrator, while partiality will more likely surface during the arbitration proceedings.
The United Kingdom Supreme Court has highlighted this aspect in Hashwani v. Jivraj, (2011) 1WLR 1872 in the following words:
“the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.” Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665.

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Legal Right – Meaning of

The meaning of the expression ‘person aggrieved’ will have to be ascertained with reference to the purpose and the provisions of the Statute. One of the meanings is that person will be held to be aggrieved by a decision if that decision is materially adverse to him. The restricted meaning of the expression requires denial or deprivation of legal rights. The expression ‘person aggrieved’ means a person who has suffered a legal grievance, i.e. a person against whom a decision has been pronounced which has lawfully deprived him of something or wrongfully refused him something.
A “legal right”, means an entitlement arising out of legal rules. Thus, it may be defined as an advantage or a benefit conferred upon a person by the rule of law. The expression “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. A person aggrieved, means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. “Person aggrieved” means a person who is injured or he is adversely affected in a legal sense. Naval Kishore v. State of U.P., 2017 (122) ALR 121.

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Appointment of an Impartial Arbitrator

It is settled that in exercise of jurisdiction under Section 11 of the Arbitration and Conciliation Act, the Court is to enforce terms of agreement for securing appointment of arbitrator. However, it is not denuded of jurisdiction to follow a different course, for justifiable cause, by giving reasons. Different contingencies requiring such departure have clearly been noticed. The ultimate object is to secure appointment of an impartial arbitrator and secure speedy resolution of dispute by way of arbitration. The scheme underlying the Arbitration and Conciliation Act has to be construed by harmoniously interpreting its provisions. It is imperative for the court to examine qualification and impartiality of arbitrator as well as to secure speedy resolution of dispute. The terms of arbitration agreement providing for arbitrator to be named by designation cannot be read in isolation. It also cannot be construed in a manner inconsistent with the scheme of the Act. The question is answered holding that an application under Section 11(6) of the Arbitration and Conciliation Act would lie also in a case where arbitrator is named, by designation, where (i) arbitrator named is not impartial, or (ii) he lacks required qualification, or (iii) for any other justifiable cause to secure speedy resolution of dispute, by way of a reasoned order. M/s AARGEE Engineering and Company v. ERA Infra Engineering Ltd., 2017 (122) ALR 179.

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Departmental Enquiry – Duty of Disciplinary Authority

In Chamoli District Co-operative Bank Ltd. v. Raghunath Singh Rana, (2016) 12 SCC 204, it was held as under:
“(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”
The principal of law that emanates is that initial burden is on the department to prove the charges. In case where enquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral enquiry. State of U.P. v. Aditya Prasad Srivastava, (2017) 2 UPLBEC 901.

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