CASE STUDY 1Breach of Contract Against

Employer : A Case Study

Case study

■Mrs Bryne was sacked as a human resources director of a drug company in January 2001, two months before giving birth. She had complained that male directors were paid more than female directors in the company. This was based on the fact that on promotion from human resources manager to director she had expected a pay rise in line with the other four directors. In fact, she was awarded a pay increase that brought her salary to £52,500.

Case study

■All of the other directors, who were men, were earning more than £60,000 each. One such director, the finance director, had been given a 36.8% pay rise when he became a director, which meant that his pay was £65,000. Mrs. Bryne sent a memo to her boss highlighting the differences and was told that she ‘wanted too much too soon’ and that she should have ‘ignored what other people were earning.’

The Claim

■Mrs. Bryne brought her claim for breach of contract and for sexual discrimination because her boss made a comment that all women who were of child-bearing age should be treated. She was sacked after sending the memo and only given three months’ notice rather than the six months to which she was entitled under her contract. This resulted in her not being able to claim for unfair dismissal.

At the Tribunal

■ Another employee confirmed the boss’s comment about female sterilization, adding that she was told that if she wanted to progress in her career with the company it was best never to get pregnant. When Mrs. Bryne was recruited, the recruitment consultant was asked to find out whether she intended to start a family or not.

■ She told the tribunal that she was shocked to be asked this question, which is not something that should be asked during the recruitment process or at all by an employer.

■ The recruitment consultant told her that if she brought up the subject of having children, she should reassure her future employers that she was not planning on ‘running off and having millions of babies.’

At the Tribunal■The tribunal found that the way in which she had been dismissed

after sending her boss the email about her salary did constitute unfair dismissal. This was because she would have been entitled to claim damages if she had been given the notice period that was contracted.

■The boss in question stated that he liked to crack jokes and to make the working environment less serious. He did however state that he realised that the quip he had made in this instance had been severely off-key. He told the tribunal that he regretted making the remark, and said that it was ‘so grotesque that it could not actually be his opinion.

The Tribunal's Findings

■Mrs. Bryne’s sexual discrimination claim was dismissed at the employment tribunal. The tribunal chairman said that the comment made by the boss was just part of the humour that was used in the pharmaceutical industry, and that it did not constitute the boss’s view or that of the company. Mrs. Bryne was awarded damages for successfully proving breach of contract.

■Although Mrs. Bryne’s sexual discrimination claim failed, she did receive an award of damages for the breach of contract by her employer.

CASE STUDY 2

BAILMENT OF A CONTRACT

The Case■Mr. Mainak Bose. for the private respondent. The appeal

is directed against a Judgment and order dated 23rd February, 2016 by which the writ petition was disposed of.

■The following amongst other directions were issued.■ In accordance with the statutory obligation of the

Customs to dispose of the goods, the Customs authorities are agreeable to expend the requisite amount of about of Rs. 77,000/- for such purpose. The special officer will cause the crates to be brought down and opened, all the goods to be arranged for inspection

• An inventory thereof prepared and the goods valued upon incurring the requisite expenses therefor on behalf of the Customs authorities, subject to the Customs' first and paramount charge over the sale price in respect of such expenses incurred on account of the sale.

• The balance consideration will be dealt with in accordance with section 150 of the Customs Act, 1962.'' The goods have pursuant to the aforesaid order been sold to buyers. Mr. Basu, learned advocate, represents one of them.

The Case

The Appeal has been preferred by the Writ Petitioners

■Mr. Khaitan, learned Senior Advocate, appearing for the writ petitioner submitted that the disbursement of the sale proceeds has to take place in accordance with section 150 of the Customs Act, as directed by the learned Trial Court. But the difficulty arose from the fact that the Customs Authority has not taken the appellants in confidence in determining the duty payable with respect to the goods sold.

■Mr. Das, learned Senior Advocate, appearing for the Customs Authority, submitted that the duty has to be adjudicated in accordance with law.

■Mr. Khaitan, pointed out that the Customs authority has issued a circular being Circular No.71/2001-Cus., dated 28.11.2001 F.No. 446/17/2001-Cus. IV for determination of duty in such cases.

■Mr. Khaitan, submitted that the Customs authority is liable to determine the duty after hearing the writ petitioners.

■Mr. Das, learned Senior Advocate, did not dispute that the adjudication or determination of duty has to take place upon notice both to the importer and the ware- house owners.

■We are inclined to think that the warehouse owner being a bailee is in the position of a deemed owner of the goods, regard being had to Section 151 of the Contract Act, which provides as follows:

■Section 151 Care to be taken by bailee- In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed

■The warehouse owner also has a lien in respect of the goods until he receives due remuneration for the service rendered by him under Section 170 & 171 of the Contract Act. Now that the goods have been sold, the lien has shifted to the sale proceeds subject however to the provisions of  Section 150 of the Customs Act.

■This appeal is disposed of by directing that the adjudication of duty payable should be made as early as possible upon notice both to the importer and the appellants before us in accordance with law preferably within two months from the date of service of a copy of this order.

■Mr. Basu, learned advocate, appearing for one of the buyers submitted that in spite of payment of full consideration and in spite of delivery orders having been issued both by the auctioneer and the Customs authority the appellants have withheld delivery of the goods. Mr. Khaitan learned Senior Advocate, upon instruction submitted that goods shall be delivered as and when the buyers choose to apply for delivery.

■The appeal and the connected application are, thus, disposed of.■Needless to mention that before taking up the appeal for hearing

we have condoned the delay.

CASE STUDY 3

N.R. Srinivasa Iyer vs New India Assurance

Co., Ltd

■ Mr. Iyer’s car was insured by the New IndiaInsurance. The car met an accident and was taken to P. S. N. Motors Ltd., Trichur for repairing. The insurance company was intimated of the accident and that the car was given to the P. S. N. Motors for repair with a request to discharge its obligation under the policy of insurance. The P. S. N. Motors submitted an estimate to the insurance company.

■ After a several correspondence, the two settled onan estimate. Mr. Iyer was thus, informed: We have pleasure to inform you that the revised estimate of M/s. P. S. N. Motors Ltd., Trichur has been approved by our head office, and they have been advised to proceed with the repairs and send us their final bill together with the discharge voucher duly filled in and signed by you for making the payment.

■ Before the car could be delivered to Mr. Iyer, a fire occurred in the workshop of the PSN Motors and the car was destroyed. The garage was not insured. Is the insurance company bailee of Mr. Iyer’s car, on whose behalf the car has been sent to the garage?

■Supreme CourtIn a contract of insurance, there are mutual rights and obligations both of the Insurer and the Insured. Once the motor car is damaged it is the duty of thecar owner to take it to nearest repair shop. This is done on behalf of the insurance company which pays for such removal as well as the repairs.

■ the Insurer took charge of the damaged car from the scene of accident and got it moved to the nearest repairer. The car virtually came into the custody ofthe Insurer and the repairer took the custody for and on behalf of the Insurer.

■When the Insurer has the option to replace the Motor Car, it can take over the damaged car andt he Insured is bound to submit to the same. If theInsurer on the other hand, exercised the option of repairing the car, it is entitled not merely to choose the repairer but also to determine the charges for repairs to be negotiated and settled between the Insurer and the repairer and the Insured has hardly anything to do with it.

■Sub-Bailee The Insurer became the bailee and the repairermay have been initially pointed out by the bailor but with whom the Insurer entered into negotiation, arrived at a contract and agreed to get the car repaired in discharge of an obligation under the contract of insurance. Therefore, for this additional reason the custody of the repairer is that of a sub-bailee.

■Morris Case"Once a man has taken charge of goods as a baileefor reward, it is his duty to take reasonable care; tokeep them safe; and he cannot escape that duty bydelegating it to his servant. If the goods are lost ordamaged, whilst they are in his possession, he isliable unless he can show - and the burden is onhim to show - that the loss or damage occurredwithout any neglect or default or misconduct ofhimself or of any of the servants to whom hedelegated his duty."

■When the car was in the custody of the sub-bailee,it was destroyed by fire that occurred in therepairers workshop. The sub-bailee was bound totake the same care as a man of ordinary prudencewould take in regard to his own goods of the samequality and value as was expected of the bailee.Now no evidence has been led by the defendants toexplain what amount of care the bailee or the sub-bailee took in respect of the car. When the custodyis of the bailee or the sub-bailee, the burden is onthem to show how they handled the car.

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