Driver v Air India Ltd [2010] EWHC 1603 (QB)

[2010] EWHC 1603 (QB)

Case No HQ08X01806

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/07/2010

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(sitting as a Judge of the High Court)

Between

MINOO RUSTOMJEE DRIVERClaimant

AIR INDIA LIMITEDDefendant

Paul Stagg (instructed by Levine Mellins Klarfeld) for claimant

Jonathan Cohen (instructed by Morgan Walker Solicitors) for defendant

Hearing Hearing dates: 16, 17 and 18 June 2010

Judgment

[1]The defendant in this action, Air India Ltd. (“Air India”), is a company incorporated in the Republic of India and is wholly owned by the Government of India. Air India operates the national airline of India.

[2]The claimant, Mr. Minoo Driver, was born on 18 June 1943. He was first employed by Air India as from 25 January 1972 as Manager – Catering Services at Frankfurt Airport in Germany. However, as from 1 December 1999 he was employed as Manager Catering/Cabin Service, London and based at Heathrow Airport in London. His employment in that capacity was governed by the terms of a contract of employment (“the First Contract”) in letter form dated 7 December 1999. The letter was signed on behalf of Air India by Captain K. Behari, at the material time Regional Director – UK & Ireland of Air India.

[3]At the date of the First Contract it was the policy of Air India that employees should retire at the age of 63. Mr. Driver became 63 on 18 June 2006. However, both he and Air India were willing that his employment should continue after his 63rd birthday until the day before his 65th birthday. Consequently a further contract of employment (“the Second Contract”) dated 1 July 2006 was entered into between Air India and Mr. Driver.

[4]Mr. Driver’s employment by Air India in fact came to an end on 19 January 2007, in circumstances which are not presently material.

[5]In this action Mr. Driver claimed against Air India various sums to which he contended that he was entitled either under the First Contract or under the Second Contract, but which were not paid to him. His most substantial claim in terms of amount was for a sum of £60,266.04 which was said to be due to him in respect of overtime allegedly worked by him between 1 January 2002 and 3 December 2006. He also claimed an amount of £16,598.67 as due to him as alleged shift allowances in the period 1 January 2002 to 31 December 2006. Considerably smaller sums were alleged to be due in respect of an alleged fixed car allowance and an alleged fixed telephone allowance, this time as from September 2001 to about the end of December 2006. In addition, Mr. Driver claimed in respect of four items alleged to be due to him under the Second Contract. These were, respectively, a contribution to his pension fund, something described as “13th Month salary”, but in fact, as I understood it, in the nature of a bonus, and remuneration in respect of alleged unused leave. The claims in respect of unused leave were split, so that one element related to holidays allegedly not taken prior to the making of the Second Contract and the other element related to holidays allegedly not taken after the making of the Second Contract.

[6]The position of Air India was that Mr. Driver had not been entitled to overtime payments or to shift allowances under the First Contract or the Second Contract. It was contended that he had no entitlement to a fixed car allowance or a fixed telephone allowance under either the First Contract or the Second Contract. The case for Air India was that Mr. Driver had no entitlement under the Second Contract to have pension contributions paid by Air India, he having reached retirement age prior to the Second Contract being made. Sums due in respect of “13th Month salary” and holiday pay under the Second Contract pro rata to the date of payment had been made, it was said, in November 2006 to Mr. Driver, notwithstanding that in fact Mr. Driver had had no entitlement to such payments under the Second Contract. The claim in respect of unused leave was said to lack any foundation under the material provisions of the First Contract and the Second Contract.

[7]In this action Air India counterclaimed various sums alleged to have been overpaid to Mr. Driver in respect of travel allowances and overtime. The total value of those claims was put at £11, 303.32. In addition there was a claim for the sum of £8,532 described as “costs incurred in the investigation of this false claim”. The claims in respect of alleged overpayments of travel allowances and overtime related to payments made in 2000 and 2001 and were not, in the event, pursued. The claim for costs of investigating the claims of Mr. Driver were not pursued by way of counterclaim in the action, but I was told that it was to be pursued by way of costs in the event that Air India was successful in its defence of the claims of Mr. Driver.

[8]It was, I think, common ground that the basis for each of the claims of Mr. Driver against Air India had to be found, if it was to be justified, in either the First Contract or the Second Contract or both. It is convenient, therefore, to turn to consider the relevant express terms of each of those contracts.

The relevant terms of the First Contract

[9]For present purposes the material terms of the First Contract were these:- “Duties and Responsibilities and Location 6. Your duties and responsibilities will be assigned to you from time to time by your immediate superiors, however such are the operational needs of an international airline that it may be necessary to transfer you from one section to another and to other departments or perhaps to other cities with the United Kingdom. … Other Monetary Benefits 8. In addition to your salary as set out on the Attachment, you may also be entitled to a London Weighting Allowance, which may be revised from time to time. You will also receive a 13th month salary payment and a 14 days salary holiday supplement in accordance with Air India’s rules from time to time in force. 9. All salary is payable monthly in arrears. Shift Work and Payment 10. Provisions regarding shift work, payment for shift work, overtime working and payments for overtime working are set out in notices and circulars issued by Air India from time to time. Copies of current notices and circulars are available for inspection upon request to your Section Head. Hours of Work and Payment 11. Your basic hours of work (excluding meal-breaks) will normally be 37 and a half hours per week spread over any five days at such times as Air India shall determine. However, in view of the operational needs of an airline, you will be required from time to time to work overtime, both on a rostered and ad hoc basis. Your agreement to the working of such overtime forms an important part of this contract of service. … Annual Leave and Public Holidays 17. Your annual leave is 25 working days and is calculated as accruing after completion of twelve complete calendar months of continuous service. However, after confirmation in service, the pro-rata equivalent of 25 working days paid annual leave may be sanctioned, depending upon the exigencies of service. Each year you will also be entitled to paid leave for the eight Public Holidays as notified and detailed in the relevant staff notice published each year. The annual leave period of Air India is from 1st April to 31st March. No annual leave entitlement may be carried over from one year to another without the prior written agreement of Air India. Annual Leave and leave on Public Holidays will only be taken by you after obtaining the approval of your Section Head and will be subject to the exigencies of work. Pension Fund 18. You may like to join and remain a member of our Pension Scheme as currently in force as amended from time to time in accordance with the rules of the Scheme. Details of the Scheme will be advised to you separately. A contracting out certificate under the Pension Schemes Act 1993 is in force in respect of the employment to which this statement relates. … Retirement 28. The retirement age for men and women is 63 years. You will retire from Air India upon your attaining the relevant age. … General32. This agreement constitutes the entire agreement and understanding between Air India and yourself with respect to all matters herein referred to, and supersedes any contract of service (whether written or oral) between you and Air India. Any remuneration paid or payable to you under such contract in respect of any period subsequent to the commencement date shall be set off against any amounts which would otherwise be payable to you in respect of the same period.

33. The terms of this agreement may be subject to variation or amendment by Air India at its discretion from time to time, and in that event written notice of the amendment will be sent to you. If you continue in Air India’s employment after particulars of any amendment shall have been notified to you in writing, you will be deemed to have consented to such amendment or variation.

34. If you are in agreement with the above, kindly sign the enclosed copy of this letter to signify your acceptance of the above terms, and return the copy to us as also a copy of the attachment.

35. This Agreement shall be construed and governed in accordance with English Law and the parties agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or dispute arising in respect of this Agreement. [In the attachment] 4. DATE OF COMMENCEMENT IN LONDON 1st December 1999. … 9. SALARY SCALE: £19456.75 TO £23851.56 per annum 10. COMMENCING SALARY STAGE: £23851.56 per annum (D10+9) plus 13th Month Salary, 14 days salary holiday supplement. 11. LONDON WEIGHTING ALLOWANCE: £1148.48 per annum.” Other Monetary Benefits Shift Work and Payment Hours of Work and Payment Annual Leave and Public Holidays Pension Fund Retirement General

[In the attachment]

[10]The First Contract contained no reference in terms to any sort of car allowance or telephone allowance. Equally it made no provision for reimbursement by Air India of any expenses which Mr. Driver might incur in the course of his employment. Moreover, it contained no identification or definition of a “shift”. Clause 11 seemed to contemplate that any hours worked in a week in excess of 37½ hours would be “overtime”. Clause 10 envisaged that there might be shift work, attracting payment, and overtime working, attracting payment for that, but the provisions in relation to such matters were to be found, if at all, in “notices and circulars issued by Air India from time to time”. I shall come to what were said to be the relevant notices and circulars. The effect of clause 17 seemed to be that unused holiday entitlement from one holiday year could only be carried forward into a subsequent period with the written consent of Air India given prior to the end of the year in which the holiday entitlement accrued.

The relevant terms of the Second Contract

[11]The Second Contract was sent to Mr. Driver for signature under cover of a letter dated 30 June 2006 written by Mr. K.D. Row, at that time Air India’s Regional Manager UK & Ireland. The letter included:- “The Contract is for a period until 17th June 2008 and the terms and conditions are contained within the Contract. (There is no connection between your previous contract dated 7th December 1999 and this Contract). Any other allowances, if applicable, will be decided upon after clarification has been received from the HRD Dept. Mumbai. Kindly acknowledge receipt of the contract and your acceptance of the terms and conditions by signing a copy of the duplicate enclosed.”

[12]The Second Contract was in a standard printed form with some modifications specific to the case of Mr. Driver. Relevant modifications were the substitution for the normal provisions of clause 2 and clause 6 of specific provisions set out in Annexure 1. In the citation which follows I substitute the versions of clause 2 and clause 6 from the Annexure.

[13]For present purposes the material provisions of the Second Contract were:- “2. Term2.1 The Employee’s employment as Manager-Catering/Cabin Service commences on 01 July 2006 for a period of 1.96 years (one year and eleven months and seventeen days) ending on 17/06/2008 and further subject to termination in accordance to paragraph 9/10 below. No previous employment counts towards the period of continuous employment with Air India.

2.2 The Employee will retire at the age of 65 years on 17/06/2008 at the same time of expiry of term. … 5. Hours of Work

5.1 The Employee’s hours of work shall be 40 hours per week from 9 am to 6 pm, and which can be enhanced to 48 hours at the discretion of the employer. Air India based on its requirements will notify the Employee with the starting and finishing times.

5.2 The Employee may from time to time be required to work such additional hours as may be necessary for the proper performance of his duties. Subject to working in excess of 48 hours per week, overtime may be paid at Air India’s discretion and in accordance with the provisions set out in the Air India Overtime Guidelines in force from time to time. 6. Remuneration 6.1 The remuneration shall be a salary at the rate of £2173.08 per month plus London Weighting Allowance of £100.75 per month for the period of employment which has been duly approved by competent authority and subject to local tax laws. 7. Holidays 7.1 The Employee is entitled to paid holidays based on twenty days in a calendar year or prorata. The above holidays include all bank and public holidays normally observed in the country of placement and no additional days would be available. The employee agrees to take all the eight bank/public holidays as part of his leave/holidays. … 7.5 The holiday entitlement must be taken in the holiday year in which it is accrued. For these purposes the holiday year begins on the date the employment with Air India began and ends in December thereafter. Each subsequent holiday year will start in January and will be on a calendar year basis. For example if the Employee joined Air India on 1st January 2006, he must take all of the accrued holiday entitlement by 31st December 2006. Air India may at its discretion and subject to legislative requirements pay in lieu of any holiday accrued but untaken. 7.6 If the employment commences or terminates part way through the holiday year, the entitlement to holidays will be assessed on a pro rata basis and deductions from the final salary due on termination of employment will be made in respect of holidays taken in excess of entitlement. … 7.8 Holiday entitlement unused at the end of the holiday year cannot be carried over into the next holiday year. … 17. Expenses Air India shall reimburse to the Employee such travelling, hotel and other out of pocket expenses as shall form [sic] time to time be reasonably incurred by the Employee in the course of employment, subject to the Employee complying with such guidelines or regulations issued by Air India from time to time in this respect and upon the Employee submitting to Air India, on request satisfactory information and evidence of the same. … 20. Waivers 20.1 Under this Agreement, the Employee agrees that no compensation or benefit of any kind in lieu of additional pension benefits, termination of employee, unfair dismissal or unlawful termination will be payable by Air India. 21. Entire Agreement This Agreement represents the entire agreement of the parties and it supersedes all prior statements, discussions and understandings. Any amendments to this Agreement will be notified to the Employee in writing. 22. Jurisdiction The parties to this Agreement submit to the exclusive jurisdiction of the English Courts. 23. Proper Law of the Agreement This Agreement is governed and shall be construed in accordance with the law of England.” This Agreement is governed and shall be construed in accordance with the law of England.”

[14]The effect of clause 21 of the Second Contract appeared to be that the terms of the Second Contract superseded not only the First Contract, but also any other prior statements, discussions or understandings. Consequently it seemed that the rights and obligations of Mr. Driver after the making of the Second Contract fell to be determined by reference to the terms of the Second Contract, subject to any amendments or notifications communicated after the making of the Second Contract.

[15]By clause 5 of the Second Contract overtime might be paid, “at Air India’s discretion and in accordance with the provisions set out in the Air India Guidelines in force from time to time”, but only for work required in excess of 48 hours per week.

[16]The Second Contract made no reference at all to any shift allowance payment.

[17]Clause 17 of the Second Contract provided for Air India to reimburse expenses reasonably and properly incurred from time to time by Mr. Driver in the course of his employment, subject to him complying with any guidelines or regulations issued by Air India from time to time, and subject to him providing, on request, satisfactory information and evidence of expenditure.

[18]The effect of clause 20 of the Second Contract seemed to be that Mr. Driver agreed in terms that he was not entitled to any additional pension benefits under that contract. Certainly there was no provision of the Second Contract which mirrored the provisions of clause 18 of the First Contract.

[19]There was no provision of the Second Contract equivalent to that to be found in clause 8 of, and paragraph 10 of the attachment to, the First Contract for the payment of “13th Month salary”.

[20]While, by clause 7 of the Second Contract, Air India had a discretion to make a payment in lieu of holiday entitlement, clause 7.5 made plain that the holiday year ran, in the first instance, from the date of the Second Contract to 31 December 2006, and by clause 7.8 holiday entitlement could not be carried forward from one year to the next. Consequently it would seem that any holiday to which Mr. Driver was entitled in the period 1 July 2006 to 31 December 2006 ceased to be capable of being taken, if not taken by 31 December 2006. The effect of clause 21 of the Second Contract seemed to be to extinguish any claim which Mr. Driver might otherwise have had under the First Contract to carry forward holiday entitlement, if consent to that course had been given by Air India for the purposes of clause 17 of the First Contract.

[21]On the face of the Second Contract, therefore, claims on the part of Mr. Driver for shift allowance payments, non-payment of pension contributions, non-payment of a “13th Month salary”, or payment in lieu of holidays not taken either before or after the making of the Second Contract were not sustainable. In the event, during the trial the claims in respect of non-payment of pension contributions, “13th Month salary” and payment in lieu of holidays not taken were abandoned. In re-examination Mr. Driver accepted that he had, in fact, taken holiday between 19 December 2006 and 2 January 2007, a period which seemed to coincide almost exactly with his entitlement to holiday under the Second Contract up to the date of termination of that contract. Mr. Driver also accepted that he had in fact been paid by Air India in November 2006 the amounts in respect of “13th Month salary” and holiday pay which it contended.

[22]The principal claims of Mr. Driver, in financial terms, appeared to depend upon alleged notices or circulars issued by Air India in relation to overtime during the currency of the First Contract and upon an alleged amendment of the First Contract. It is convenient to turn to the documents relevant to these contentions of which copies were put in evidence.

Alleged notices or circulars relating to overtime

[23]There were three documents of which copies were put in evidence which were said to represent notices or circulars applicable to Mr. Driver in respect of overtime. The position of Air India in relation to these documents was, to a degree, equivocal. The evidence of witnesses of fact called on behalf of Air India rather focused on the documents in the context of assertions that the requirements contained in them were not complied with. However, Mr. Jonathan Cohen, who appeared on behalf of Air India, emphasised that the documents in question, on their respective faces, conveyed no information about any rate at which any overtime was to be paid, or the circumstances in which any overtime was to be payable. He pointed out that none of the documents contained any indication about whether overtime was to be paid at some enhanced rate, and, if so, at what rate; or how, having regard to any periods taken as holiday or sick leave, any assessment was to be made of whether any time worked amounted to overtime. In the submission of Mr. Cohen there was insufficient certainty in any of the relevant documents to enable one to say that Mr. Driver had a contractual right to be paid for working overtime.

[24]The first of the three documents which I have mentioned was a memorandum dated 20 April 2000 written by Captain Behari to Mr. Driver. All it said was:- “As already advised, henceforth you will report to Miss S.D.Kulkarni, Manager – London Airport, for all administrative matters, i.e. leave – requests, passages, overtime, etc.”

[25]A point taken on behalf of Air India, in addition to the submissions of Mr. Cohen which I have already recited, was that the effect of that memorandum, so far as is presently relevant, was that Mr. Driver was directed not to undertake overtime without first seeking consent from Miss Kulkarni to do so.

[26]Mr. Paul Stagg, who appeared on behalf of Mr. Driver, contended that, on proper construction, the memorandum did not amount to an instruction to Mr. Driver not to undertake overtime without the prior consent of Miss Kulkarni. That submission was important because of the basic position adopted on behalf of Mr. Driver to the issue of overtime. It was, I think, accepted by Mr. Driver that Air India had not actually asked him to undertake any of the alleged overtime in respect of which he sought payment. Certainly there was no evidence of any specific request of Mr. Driver made on behalf of Air India that he undertake particular duties, in addition to his ordinary duties, on an identified day between specified hours. The position of Mr. Driver was, rather, that he was in a sufficiently senior position himself to be able to decide whether he should work overtime for which he should be paid by Air India. If he decided that it was appropriate for him to work overtime, he did so, and then, at least in theory (I shall come to the evidence as to the practice), submitted a claim to be paid overtime. His case was that Air India then had to decide whether to accept his claim, and pay it, or to reject it. It was somewhat unclear whether Mr. Driver contended that Air India had an unfettered discretion as to whether to pay him for overtime which he had chosen to undertake, or whether Air India was bound to act reasonably. At different times during the trial each of these possibilities seemed to be being canvassed. It would seem bizarre if Mr. Driver chose to undertake overtime, without being asked, at his own risk as to whether he would be paid, but certainly at some points in the trial that did seem to be his stance. However that may be, Mr. Stagg’s submission was that the memorandum dated 20 April 2000 amounted only to an instruction that claims for payment of overtime were to be submitted to Miss Kulkarni for her evaluation and decision as to whether payment should be made.

[27]It was common ground that Mr. Driver did submit claims for payment of overtime to Miss Kulkarni and that she did not approve any of them. Mr. Stagg submitted that it should be inferred from these circumstances that she had declined to consider any of the claims. He rejected as a possibility the other obvious inference, that she positively did not approve them and therefore took no steps to put in train a process by which Mr. Driver would obtain payment. Mr. Stagg pointed out that there was no contemporaneous documentary evidence to indicate that Miss Kulkarni positively did not approve any of the claims for payment of overtime.

[28]The second document said to be a notice or circular was what was described on the document itself as an “Office Note” dated 11 May 2001. It was signed by Mr. Dileep Row and copied to a number of individuals, including Mr. Driver, Miss Kulkarni and Mr. S.N. Dhotre, Deputy General Manager, Ground Support Division, London Heathrow. The note was in these terms:- “1. Effective Monday, 14th May 2001, Mr. M. Driver, Catering/Cabin Service Manager will clock in and clock out at LIMA 27. 2. Mr. M. Driver has prepared a format which gives full details by day on the flights attended to by him. This chart also indicates reasons for overtime, if any. The chart is satisfactory. 3. Mr. S.N. Dhotre, Dy. Gen. Manager, GSD [Ground Support Division], LHR [London Heathrow] will countersign the format prepared by Mr. M. Driver. 4. Upon the completion of every month, Mr. Driver may bring the format duly countersigned by Mr. Dhotre to the undersigned who will then certify the overtime claim submitted by Mr. Driver. 5. When Mr. Dhotre is on leave, the format will be countersigned by Mr. O.P.R. Dube, Sr. Security Manager, LHR.”

[29]On behalf of Air India, Mr. Cohen submitted that the effect of the instructions set out in that Office Note was that the procedure to be followed by Mr. Driver, if he wished to claim payment for overtime, was to prepare a format giving full details of the flights to be attended by him, together with any anticipated overtime which he would need to perform, and the reasons for such overtime. That format was to be submitted to Mr. Dhotre for approval. Then, at the end of each month, Mr. Driver was to bring the format duly signed by Mr. Dhotre to Mr. Row for certification of the overtime claim which Mr. Driver in fact wished to submit, taking account of occurrences during the month which had affected the anticipated overtime requirement, if any. Mr. Driver disputed that that was the proper interpretation of the Office Note. He asserted that what was contemplated was that the format would be completed at the end of the month, once he had attended whatever flights he did attend, and had performed any overtime which he had performed. Thus the function of Mr. Dhotre was simply to verify the accuracy of what Mr. Driver asserted in the format. The role of Mr. Row was to approve, or not, the claim for overtime.

[30]The view of Mr. Driver as to what compliance with the Office Note involved was adopted on his behalf by Mr. Stagg. He submitted, correctly, that the important issue was not what Mr. Driver thought the Office Note meant, but how it was appropriate to construe it as a matter of law. Having made that point, he asserted that in fact the interpretation which commended itself to Mr. Driver was right as a matter of law.

[31]In my judgment the interpretation of the Office Note for which Mr. Cohen contended was plainly correct and that for which Mr. Stagg contended clearly wrong. Unless Mr. Cohen’s construction were correct there was no obvious benefit in both Mr. Dhotre and Mr. Row considering the format prepared by Mr. Driver. The work of one simply duplicated the work of the other. Work was not duplicated if one interpreted the Office Note as involving Mr. Dhotre considering Mr. Driver’s completed format in advance of the period to which it was expressed to relate, and Mr. Row revisiting it at the end of the period in the light of the overtime claims Mr. Driver in fact wished to make. In practical terms the mechanism for which Mr. Cohen contended seemed to produce benefits, in the sense that Air India management would know in advance of work being done by Mr. Driver what he intended to do, in terms of attending flights, and what, if any, overtime he proposed to undertake. With advance knowledge of what was proposed, management had the opportunity to modify Mr. Driver’s proposals, if thought appropriate, and, in particular, to modify such proposals so as to eliminate or reduce the undertaking of overtime, for which Air India would have to pay. While I agree that the First Contract was silent as to any entitlement of Mr. Driver to be paid overtime, and neither the memorandum dated 20 April 2000 nor the Office Note prescribed any rate at which overtime was to be paid, it seems to me that, had Air India in fact asked Mr. Driver to undertake overtime, or agreed with a proposal from him that he should undertake overtime, as a matter of a separate contract arising in those circumstances, or as a matter of restitution, he was entitled to be paid a reasonable sum for what he did. The mechanism set out in the Office Note as I have construed it was also of advantage to Mr. Driver, because he would know that any proposed overtime which Air India approved would be paid for. The construction for which Mr. Stagg contended not only postulated unnecessary duplication of effort as between Mr. Dhotre and Mr. Row, but also involved Mr. Driver in undertaking overtime in circumstances in which it was uncertain whether he would be paid for what he had done. One of the peculiarities of this case was that, according to Mr. Driver, he undertook overtime of significant amounts for Air India over a period of some five years for which he was not paid, yet he continued to undertake the overtime. Before leaving the construction of the Office Note it is appropriate also to point out that, simply as a matter of language, quite apart from the common sense of the matter, the construction for which Mr. Cohen contended is correct. The terms of the Office Note plainly envisaged sequential involvement of Mr. Dhotre and Mr. Row, with Mr. Row being involved “Upon the completion of every month” and Mr. Dhotre being involved at some earlier point in time. It was manifest, as it seems to me, that it was not contemplated, as Mr. Stagg would have it, that both Mr. Dhotre and Mr. Row would be involved at the same time.

[32]After Mr. Row was succeeded by Captain A.K. Sharma as Regional Director – UK & Ireland (in fact, I think that Captain Sharma subsumed that role within a wider role as Regional Director – UK & Europe) Captain Sharma sent a memorandum dated 19 December 2001 to Mr. Driver. In that memorandum he wrote:- “”Kindly refer to letter no. RD/H1-MRD/129 dated April 20, 2000 from the then Regional Director – UK & Ireland (copy enclosed for your ready reference). Please be advised that with immediate effect the contents of the above quoted letter are to be followed. In view of the above, Office Order dated 11th May 2001 issued by Mr. Dileep Row the then Offg. RDUK stands superceded [sic]”

[33]The effect of that memorandum was to restore the position to how it had been before the Office Note, in other words, on the case of Air India, that if Mr. Driver wanted to work overtime he needed to obtain the consent of Miss Kulkarni first.

Exchanges between the parties prior to the alleged amendment of the First Contract

[34]The immediate cause of the issue of the Office Note appears to have been a letter dated 10 May 2001 written by Mr. Driver to Mr. Row in which Mr. Driver suggested that it had been agreed between him and Captain Behari at the time Mr. Driver became permanently based in London that the reduction in the salary to be paid to him, as compared with the salary which had been paid to him whilst working in Frankfurt, would be offset by the making of overtime payments. The letter included the following:- “In 99/00, the undersigned was paid by AI Germany up to the month on [sic] Nov. 99 equivalent to the D-11 Grade in UK. Upon my transfer from Germany to UK, I was offered a position in the D-10 Grade which I reluctantly accepted. The UK salary in the D-10 Grade was equivalent to £840.00 per month lower than my earnings in Frankfurt. My request to the management was to transfer my position in London at the D-11 Grade with no overtime payments involved as in Germany. It may be mentioned that no overtime is applicable in the D-11 Grade but a fixed stipend is paid to compensate for it. In a meeting held with Capt. Behari the then RD-UK in his office in the presence of Mr. A. D’Souza in early October 1999, the undersigned was persuaded by Capt. Behari to take the D-10 Grade with a reduction of £840.00 per month which he said would be compensated by payments for overtime done. A chart has been prepared for April 2001 from which you will observe the hours worked is much higher then [sic] the hours claimed.”

[35]One of the documents of which a copy was put before me on behalf of Air India and which was said to provide a context in which the three documents said to be relevant as notices or instructions in relation to overtime given to Mr. Driver were produced was a circular memorandum from “Headquarters” to “All Regional Directors, All Regional Finance & Accounts Managers, All Managers in India and Abroad, All Finance & Accounts Managers” dated 12 August 1999. The title of the memorandum was “Rationalisation of Costs at Outstations”. Mr. Driver accepted in cross-examination that it was possible that he had seen a copy of the memorandum at about the date it bore. The memorandum included;- “(e) Overtime Expenses Overtime should be completely abolished in all areas except in connection with flight handling where insufficient manpower could result in flight delays. In the event of delays to incoming flights where the delay is known sufficiently in advance the shift pattern of the staff on duty may be realigned wherever permissible under local law to cover the revised hours of duty. This will result in a lower level of overtime.”

[36]Mr. Driver was certainly aware of the desire of Air India generally to reduce the cost of overtime. His letter to Mr. Row dated 10 May 2001 ended:- “As suggested by you, a duty roster is being worked out with a view of reducing overtime and covering flights at the same time. It should be noted that the overtime hours cannot be compared for 1999, 2000 and 2001 due to the fact that in 1999 overtime was worked but the hours were not recorded due to the German Grade. [That is, Mr. Driver contended that he had worked whatever hours were required whilst employed in Frankfurt to perform the tasks of his employment, but the actual hours worked had not been recorded because the terms upon which he was employed did not entitle him to additional payment for working more than a set number of hours.]”

[37]By a memorandum dated 5 May 2002 Miss Kulkarni instructed Mr. Driver that:- “With effect from 08th May ’02 following will be the roster pattern to be followed by you as per the timings given below. Your shift will commence at 0600Hrs. to 1430Hrs. E—Early R—Rest [There followed a table which can be summarised as showing a pattern of working four days on an early shift, followed by two rest days.] The attendance has to be signed in the office of the Commercial Manager London Heathrow. Please ensure strict compliance of the above.”

E—Early R—Rest

[38]It would seem that the “strict compliance” required was to work on the designated days between the stated hours and to take the identified rest days.

[39]As I understand it, Mr. Driver’s line manager for operational purposes was Air India’s Airport Manager, London, who in her memorandum dated 5 May 2002 called herself “Commercial Manager, London Airport”, but for functional purposes his line manager was Director In-Flight Services based in Mumbai. In July 2002 the Director In-Flight Services was Mrs. A. Mascarenhas. Mr. Driver wrote a long memorandum dated 2 July 2002 to Mrs. Mascarenhas. In it he set out a number of grievances. The first of these was that he was not paid overtime. The second was that he did not receive a car allowance. The third was that he was not being reimbursed for making or receiving calls on behalf of Air India on his personal mobile telephone. The memorandum proved, as matters turned out, to be used by Mr. Driver as a template for repeated complaints, in each successive version of which modifications were made as considered appropriate by Mr. Driver to the original memorandum. Substantial sections of the text were not modified between different versions.

[40]Essentially the grievances in respect of non-payment of overtime, non-payment of a car allowance and non-payment of a contribution to telephone costs have been festering since July 2002. As I have noted, Mr. Driver’s grievance in relation to non-payment of overtime was foreshadowed by his letter to Mr. Row dated 10 May 2001. The complaint that Mr. Driver should have been paid a shift allowance entered his list of grievances rather later, in May 2003.

[41]One of the assertions advanced in the memorandum dated 2 July 2002 was:- “It may be noted that the undersigned could not avail any off days effective 15th September 01 until the 12th of May 02 when I availed my first day off.”

[42]Mr. Driver repeated that assertion in his evidence at the trial, but it was demonstrated, by analysis of his own records of when he was said to have worked and when not, that the assertion was untrue. He contended that a consequence of the events of 11 September 2001 in the United States of America was that he personally was required to complete an Aircraft Release Certificate in relation to each and every Air India flight leaving London Heathrow to verify that the aircraft involved was satisfactory in respect of cleanliness and catering. However, his own purported records of overtime worked indicated that he in fact regularly took off one day in six, or at least completed his claims for overtime so as to indicate that he had taken off one day in six, in the period in question, whilst Air India flights left Heathrow every day of the week. While other documents produced by Mr. Driver appeared to be inconsistent with the overtime claims, and consistent with Mr. Driver’s assertion that he had worked every single day in the period, there was no logic in Mr. Driver completing some documents so as to indicate that he had taken time off, whilst completing other documents to suggest the contrary, when the whole purpose of the overtime claims was to seek to obtain extra payment. It seemed to me, as a matter of common sense, that the documents indicating that time off had been taken, especially as these were the claims for payment submitted by Mr. Driver to Air India in respect of overtime, were more likely to be accurate than documents indicating that even more work had been done by Mr. Driver than that for which he was seeking payment.

[43]A high-level meeting was held in London on 10 December 2002 to consider various matters relating to the In-Flight Service Department of Air India. Those attending included Mr. J.N. Gogoi, then Managing Director of Air India, Mrs. Mascarenhas and Captain Sharma. Mr. Driver was not present. However, his situation was discussed at the meeting. A copy of an Office Note numbered IS/256 and dated 28 January 2003 was put in evidence. Concerning Mr. Driver the note included:- “b) Reimbursement of Telephone Expenses It was pointed out that Mr. M. Driver had incurred an expenditure of approximately £146 on incoming calls received by him from IFSD [In-Flight Service Department], Mumbai when he had visited Frankfurt and Zurich in connection with VVIP [Very Very Important Person – in fact, it seemed, the Prime Minister of India] movement in September 2002. MD [the Managing Director] agreed that this should be reimbursed to him on his providing necessary documentary evidence of having received these calls. It was also agreed that as regards his monthly telephone bills he should be provided with the same facility as that extended to other Officers in the same grade. … d) Conveyance Allowance The issue of conveyance allowance for Mr. M. Driver’s use of his personal car for official work was discussed in detail. In view of the complexities of monitoring/verifying such use it was agreed to settle for a fixed conveyance allowance of £100 per month. DIFS [the Director In-Flight Service] was to put up a proposal to Headquarters on these lines. e) Overtime As regards the outstanding overtime claims raised by Mr. M. Driver it was agreed that a small Committee comprising Airport Manager, London and a representative of the IFSD Department should be set up to examine this issue in detail and make recommendations thereon. MD emphasised to RD-UK [the Regional Director – UK] that in future Mr. M. Driver should be granted offs on a regular basis as they fall due to avoid the need for overtime.”

[44]Mr. Driver was not named on the Office Note as to be copied with it. The Headquarters of Air India did not, at this point, approve a payment of £100 per month to Mr. Driver in respect of a car allowance. The small committee to investigate the claims of Mr. Driver to overtime payments outstanding as at the date of the meeting, 10 December 2002, was never constituted. It seems, however, that Mrs. Mascarenhas sought approval to the payment of the car allowance and requested the setting up of the committee by notes to the Company Secretary, Mr. S. Venkat, on a copy for him of a memorandum dated 30 January 2003 by which the Office Note dated 28 January 2003 was circulated. The conclusion of the memorandum dated 30 January 2003 was, “3. I will revert regarding Conveyance Allowance and Overtime after obtaining necessary approval from Headquarters.” Thus it would seem that the notes to Mr. Venkat were not simple requests to put in place the physical arrangements, but actually requests that he should seek the approval of Headquarters to the proposals to proceed with payment of a “Conveyance Allowance” and the establishment of the contemplated committee. It seems that the non-implementation of the proposals at that time was a reflection of the fact that Headquarters did not in fact grant approval to what was suggested, although there was actually no evidence that the matter was considered by Headquarters.

[45]Mr. Driver first seems to have raised the issue of shift allowance in the version dated 11 May 2003 of his grievance memorandum to Mrs. Mascarenhas, using the template which I have mentioned. Amongst other additions to the previous form of memorandum was:- “Further effective Dec 2002 they have even stopped paying me my shift allowance, which all the local staff get and is £67.00 per week. They have not rostered me for normal duties which are 9 to 5 and Saturday, Sunday off but have ceased paying my shift allowance which staff from all other section enjoy.”

[46]A payslip dated 30 July 2001 of Mr. Driver which was put in evidence showed that in that month he was paid an amount of £240.44 in respect of “shift” and an amount of £1,328.94 in respect of “overtime”. The calculation of the figure of £1,328.94 was broken down into 39 x £19.26 (equals £751.14) plus 27 x £21.40 (equals £577.80). £19.26 is 90% of £21.40. However, there was no other evidence as to why the particular figures in respect of overtime set out in the payslip were as they were.

[47]Mr. Driver accepted in his oral evidence that, although his pleaded claim in respect of non-payment of shift allowance was based on such allowance not having been paid after 31 December 2001, in fact he was paid a shift allowance until 31 December 2002.

[48]In August 2003 Mr. Mike Joseph became Airport Manager, London, of Air India. He was called to give evidence at the trial. He told me that when he took up that post he was told by his predecessor that there was a problem about Mr. Driver and overtime, and that overtime in Mr. Driver’s case needed to be pre-authorised. Mr. Joseph told me that he had a meeting with Mr. Driver soon after Mr. Joseph took up his appointment, and he explained to Mr. Driver during that meeting that his overtime needed to be cut and reduced to nil. It was recognised that, potentially, the working of overtime might arise in one of two situations. One was where it was anticipated in advance – what Mr. Joseph in his evidence called “non-operational”. In such a case, Mr. Joseph told me, he told Mr. Driver that Mr. Driver was to identify in advance his intention to work overtime and seek specific permission from Mr. Joseph to undertake overtime. In respect of the need to work overtime which arose unexpectedly as a result of some unforeseen exigency, Mr. Joseph told me he told Mr. Driver to inform him that overtime had been worked.

[49]In the course of his evidence Mr. Joseph explained that an important tool in controlling the time Mr. Driver worked was Mr. Driver’s roster. Mr. Driver was to prepare his own roster, but it was to show that he intended to work four days and then take two days off. It seems to have been considered that a significant feature of Mr. Driver’s alleged overtime was him saying that he had been working on days on which he should not have been working at all.

[50]Following verbal discussions Mr. Joseph wrote Mr. Driver a memorandum dated 1 September 2003 on the subject of “Duty/Overtime”. The text of the memorandum was:- “Please refer to the discussions held in my office regarding the above subject. In view of the fact that the catering unit where your office is located is away from the terminal, with immediate effect you will submit your duty roster pattern for the following month on the by the [sic] 27th of the preceding month. Further, you will also submit your shift time sheets along with your overtime statement for certification by me by the 5th of the following month for the preceding month. Pleases [sic] note that the overtime claimed should have all the details of the flights handled or notes if the overtime has been incurred due to any other catering activity.”

[51]Mr. Driver did not reply immediately to that memorandum. He did, however, write a memorandum dated 15 September 2003 to Mr. Joseph on the subject of “Overtime certification for the period 01 Jan 2001 – 31 Jul 2003”. In that memorandum he wrote:- “The overtime statements of my duties for the above period were presented for certification and regularisation for payment to the then Manager London Airport namely Ms Kulkarni and thereafter to Mr. Gupta. During the above period, I was signing the attendance register kept in their office. However, till date, I have not been advised as to the whereabouts of these overtime sheets and whether they have been certified. On enquiring with accounts, I have been informed that they have not received the same from the airport office. I do have copies of the statements that were submitted earlier and may I seek your assistance in getting the same regularised now, as they have been outstanding and pending for quite a long time.”

[52]The reply to Mr. Joseph’s memorandum dated 1 September 2003 came in a memorandum from Mr. Driver to him dated 20 September 2003:- “This has reference to your letter dated 01 Sep. 03. Further to our discussions on receipt of your letter and as confirmed by you, I will be submitting my duty roster to your office for a three monthly period. However, the overtime statement will be forwarded to your office on a monthly basis. Enclosed is my duty roster for the period Oct03 – Dec03.” Enclosed is my duty roster for the period Oct03 – Dec03.”

[53]Mr. Joseph told me that when he received that memorandum he explained to Mr. Driver that it was not acceptable for him to produce rosters for three months at a time, and that monthly rosters were required. However, in the event Mr. Driver, according to Mr. Joseph, did not produce any rosters at all. Mr. Joseph said that, although he kept reminding Mr. Driver verbally about the need to submit rosters, he was not, in fact, concerned about that because, in his capacity as Airport Manager, he met Mr. Driver regularly in the course of his work and so could see that Mr. Driver appeared to be taking the intended days off.

[54]In a lengthy memorandum dated 24 September 2003 to Mr. Joseph Mr. Driver sought to interest him in Mr. Driver’s grievances in relation to non-payment of overtime, non-payment of a car allowance and non-payment of an allowance towards the cost of his telephone. Mr. Joseph read the memorandum and returned it, or a copy, to Mr. Driver endorsed:- “Many of these issues seem to be pending approval from HQs [Headquarters] for which I may not be in position to resolve. However to ensure that your working time records are kept updated, please follow instructions regarding overtime as per my letter dated 01 Sep ’03. M.V. Joseph 27/09/03”

M.V. Joseph

[55]The pleaded case of Mr. Driver was to the effect that he did not thereafter submit overtime sheets to Mr. Joseph for verification or approval, but he prepared and accumulated them, eventually submitting them to Mr. Joseph for signature in bulk just before Mr. Joseph was transferred away from London in November 2006. At paragraph 13 of the Amended Reply and Defence to Counterclaim how the matter was dealt with was:- “As to paragraph 18 of the Defence, it is admitted that Mr. Joseph certified overtime worked by the Claimant after the event in November 2006. It is denied that Mr. Balsaraf did so; he certified the Claimant’s overtime for each of the months that he certified it at the time that it was presented to him for approval. There was no fraudulent intent whatsoever in Mr. Joseph certifying the Claimant’s overtime on a retrospective basis. He had declined to do so pending resolution of the matter by higher management. After the memorandum of December 28th 2005, no committee was put into place as envisaged by the memorandum. Accordingly, the Claimant asked Mr. Joseph to certify that he had worked the overtime which he was claiming, which he subsequently did.”

[56]In his witness statement dated 8 March 2010 prepared for the purposes of this action, at paragraph 75, Mr. Driver said:- “He [Mr. Joseph] never said to me that he would not sign the overtime sheets and I believe that he did sign some of the sheets. At the request of Mr. Joseph I kept the overtime sheets that he had signed.”

[57]However, in the course of his cross-examination Mr. Driver told me that in fact he did submit overtime sheets to Mr. Joseph, who then signed them by way of authentication, but gave them back to Mr. Driver to keep, pending a decision from Headquarters on the matter of Mr. Driver’s overtime claims. Mr. Driver also said that not all the overtime sheets which Mr. Joseph signed were signed in November 2006. Some were signed earlier.

[58]In a memorandum dated 26 October 2004 to Mr. D.S. Kohli, General Manager In-Flight Services, on the matter of his grievances Mr. Driver asserted that:- “Overtime paid from Dec. 99 till April 2001 on verification from RD-UK [Captain Behari] Overtime paid from May 01 till Dec. 2001 on verification from Mr. Dhotre AGM Ground Support Division. In Jan 02 asked to submit overtime sheet to Airport Manager, same submitted until Aug 03. No overtime paid till date.”

[59]Thus at that time the position of Mr. Driver appeared to be that he had not submitted any overtime sheets after August 2003.

[60]In a memorandum dated 10 August 2006 to Mr. Amod Sharma, at that time Director, Personnel and Human Resources, Mr. Driver wrote this about overtime:- “Overtime has been paid till 01 January 2002 & after that no overtime has been paid. All the overtime sheets duly filled in were submitted to the Manager LAP [London Airport] every month for certification but they were not forwarded to the Accounts office. On this account although all sheets have been submitted to the various Airport Manager’s [sic] None [sic] other than Mr. M. Joseph has any records of the same. Certified copies from Aug 2003 till date can be produced plus copies of the Overtime sheets submitted by me can be produced.”

[61]At first blush Mr. Driver appeared to be saying in that passage that he had completed and submitted an overtime sheet every month from January 2002 until the date of the memorandum, and that he could produce copies of overtime sheets certified by Mr. Joseph from August 2003.

[62]Mr. Driver’s accounts of whether he submitted overtime sheets to Mr. Joseph for approval, and, if so, when and with what result, were inconsistent, one with another, as I think that Mr. Driver eventually accepted in the witness box.

[63]Although Mr. Joseph’s initial position in his first witness statement, dated May 2010, was that he had not signed any overtime sheet at all for Mr. Driver until he signed a bulk of them in November 2006, in circumstances to which I shall come, in cross-examination he accepted that he may in fact have signed one or two in the summer of 2003, just after taking up his position.

[64]I was not impressed by Mr. Driver as a witness. I have already drawn attention to evidence from him which was plainly wrong in relation to his contention that he worked every single day between September 2001 and the middle of May 2002. The confused and inconsistent accounts he gave in relation to the signature of overtime sheets by Mr. Joseph confirmed me in the view that Mr. Driver’s evidence could not be relied upon where it conflicted with other evidence. In contrast, I was impressed by the care taken by each of the witnesses called on behalf of Air India to give as accurate and full account of events as each could, and by the essential fairness of their evidence in relation to Mr. Driver. I was particularly impressed by Mr. Joseph and by Captain Sharma. I have no hesitation in accepting their evidence in preference to that of Mr. Driver where there was a conflict.

[65]Mr. Joseph replied to Mr. Driver’s memorandum dated 15 September 2003 in a letter dated 4 October 2003. Mr. Joseph wrote:- “This has reference to your letter dated 15 September 2003 on the above subject. I do confirm that your overtime statement records are not in my office as of now and I am not aware of the whereabouts of the same. Since these records are pertaining to overtime payments for a period before I assumed office of Manager, London Airport, please be advised that I am not in a position to certify and regularise the same for payment. However, by means of a copy of this letter addressed to the RD-UK/EUR and RFAM-UK/EUR, both of whom were in office during the above period, I am bringing this issue to their notice for necessary assistance in resolving the matter. Hence may I suggest that you kindly approach them with this pending issue. For the future and with immediate effect, please ensure that you submit your roster pattern and overtime statements on a monthly basis to the undersigned for necessary certification.”

[66]Mr. Joseph’s evidence in cross-examination, which I accept, was that Mr. Driver certainly did not provide him with any overtime sheets for signature after about November 2003. He, Mr. Joseph, did not press for them to be produced, taking the view that it was a matter for Mr. Driver to consider whether to submit such overtime sheets or not.

[67]Mr. Driver continued to send versions of what I have called his “grievance memorandum” to various recipients during 2004 and 2005. He at length attracted the sympathy of Mr. Amod Sharma, at the time Director of In-Flight Service, who wrote a memorandum dated 5 October 2005 to the Chairman and Managing Director of Air India, Mr. V. Thulasidas. The memorandum included:- “2. We have examined the issues raised and our comments are as follows: iii) Overtime: London is one of the busiest stations on our network with several flights operating via London. Mr. Driver, being the sole representative of IFSD at Heathrow, is often required to work overtime beyond his rostered hours. Under these circumstances, Mr. Driver may be paid the applicable overtime as regulated and certified by the Airport Manager – Heathrow. iv) Conveyance: The vehicle assigned to IFSD in London has been surrendered as a result of which the Catering Manager has to use his personal vehicle for official work. Mr. Driver may therefore be paid the Conveyance (Kilometric Allowance) as applicable for use of his vehicle for official purpose, duly regulated and authorized by the Airport Manager – Heathrow. vi) Communication: The Catering Manager – London is being reimbursed land line charges which are applicable to all staff in the grade D-10 in UK. Due to the nature of his assignment, Mr. Driver has to use his mobile phone for official calls. It is recommended that in addition to the reimbursement for land-line charges, the Catering Manager may also be reimbursed mobile phone charges for official calls on production of itemized bills. The same can be regulated and authorized by the Airport Manager – Heathrow. vii) Shift Allowance: Applicable Shift Allowance may be paid in line with the entitlements of other staff in the same grade. … 6. CMD’s kind approval is requested for clearance of his dues as recommended in para 2 above. Based on the approval received, we will advise the RD-UK accordingly.”

Alleged amendment of the First Contract

[68]In a memorandum dated 28 December 2005 to the Director In-Flight Service, Mr. Thulasidas replied to the memorandum of Mr. Amod Sharma dated 5 October 2005. So far as is presently material Mr. Thulasidas wrote:- “In line with what was decided at the meeting on 10 December 2002 in London when the then MD had indicated on office note No. IS/256 dated 28 January 2003, the following may be communicated to Mr.Driver:a. Conveyance Allowance: A fixed conveyance allowance of £100 per month to enable Mr. Driver to use his personal car.

b. Overtime: At that meeting it was decided that a Committee comprising the Airport Manager – London and representative of Inflight Service Department should examine this issue. As recommended, applicable overtime may be paid to Mr. Driver, regulated and certified at all times by the Airport Manager – Heathrow.

c. Shift Allowance: Applicable shift allowance may be paid in line with the entitlements of other staff in the same grade.

d. Communication: As regards Mr. Driver’s monthly telephone bills he should be provided the same facility as that extended to other officers in the grade. However, on account of the nature of his assignment, reimbursement for mobile phone charges for official calls may also be permitted on production of itemised bills duly regulated and authorized by the Airport Manager – Heathrow.”

[69]A copy of that memorandum was sent to Mr. Driver, and to others, under cover of a memorandum dated 2 January 2006.

[70]The case for Mr. Driver was that the terms of the memorandum dated 28 December 2005, that memorandum having been forwarded to Mr. Driver, constituted a variation or amendment to the First Contract by written notice, as provided for by clause 33 of the First Contract. I accept that submission up to a point. If and insofar as a variation or amendment to the terms of the First Contract could be found in the memorandum dated 28 December 2005, plainly such variation or amendment had been communicated to Mr. Driver by written notice, in accordance with the provisions of clause 33. The real question was whether the memorandum contained any, and if so what, variation or amendment to the First Contract.

[71]Mr. Stagg contended that, upon proper construction, the effect of the memorandum was to vary or amend the First Contract to the effect that the claims of Mr. Driver which were pursued in this action and which accrued, on his case, prior to the date of the memorandum, were to be settled. He submitted that, in the context in which the memorandum had been written, it was plain that Mr. Thulasidas was recognising that all of Mr. Driver’s claims were justified and should be met.

[72]Mr. Cohen submitted that, on the contrary, the memorandum was expressed in terms of what was to happen in the future and was silent as to Mr. Driver’s existing claims. Moreover, save in relation to the car allowance and reimbursement of mobile telephone charges, contended Mr. Cohen, the terms of the memorandum were insufficiently specific to amount to an enforceable variation to, or amendment of, the First Contract. It was not possible to say, from the memorandum, in what circumstances or at what rate or rates “applicable overtime” was to be paid. The memorandum did not specify how much “applicable shift allowance” was or the circumstances in which it was to be paid. Although Mr. Driver was to be “provided the same facility as that extended to other officers in the grade” as regards his monthly telephone bills, it was not possible to say from the memorandum, or from any document identified in the memorandum (none was) what that facility was.

[73]I accept the submissions of Mr. Cohen.

[74]It was plain, as it seemed to me, as a matter of language that in the memorandum dated 28 December 2005 Mr. Thulasidas was seeking only to address the future, and not the outstanding claims of Mr. Driver. The “Conveyance Allowance”, for example, was to be paid, “to enable Mr. Driver to use his personal car”, not because he had put his personal car at the disposal of Air India for the performance of his duties in the past. Overtime “may be paid … regulated and certified at all times by the Airport Manager – Heathrow”. The memorandum did not say that outstanding claims were to be met. “May” is a verb in the present tense. Regulation and certification of overtime could only sensibly be undertaken going forward, not retrospectively over a period going back to 1 January 2002, nearly four years previously. The verb “may” was used in the memorandum also in relation to shift allowance and reimbursement of mobile telephone charges. So far as Mr. Driver’s monthly telephone bills were concerned the memorandum stated that “he should be”, not “he should have been”, “provided with the same facility as that extended to other officers in the same grade”.

[75]On the face of the memorandum dated 28 December 2005, as Mr. Cohen submitted, all one could see which amounted to a definite obligation, enforceable without the need for further clarification, was the requirement to pay a fixed conveyance allowance of £100 per month and the obligation to reimburse mobile telephone charges. Consequently I find that the effect of the notification to Mr. Driver of the memorandum dated 28 December 2005 was simply to vary the First Contract so as to include those obligations on the part of Air India.

[76]However, Mr. Cohen also submitted that, so far as the car allowance was concerned, in order to be entitled to it under the First Contract, as varied, Mr. Driver had actually to use his car for the purposes of performing his duties under the First Contract. The £100 per month was not merely an addition to Mr. Driver’s salary, involving no reciprocal obligations on his part. I accept that submission.

The overtime claims

[77]Before expressing my conclusions in relation to Mr. Driver’s claims in respect of alleged overtime, it is necessary to return to the question of the exchanges between Mr. Driver and Mr. Joseph and to the circumstances in which Mr. Joseph came to sign, as he accepted he did sign, Mr. Driver’s overtime sheets in November 2006.

[78]Mr. Joseph told me in his oral evidence that he had informed Mr. Driver in terms in about October 2003 that Mr. Driver should not undertake overtime and would not be paid for doing it unless Mr. Joseph approved in advance “non-operational” overtime or Mr. Driver specifically informed him that he had worked overtime in response to some unforeseen contingency. I accept that evidence.

[79]Just before Mr. Joseph was posted back to India at the end of 2006 Mr. Driver asked him to sign the overtime sheets which had accumulated during the period of Mr. Joseph’s time as Airport Manager, London after the first one or two sheets which Mr. Joseph had signed on initially taking up his duties. Mr. Joseph did so. In his first witness statement made for the purposes of this action Mr. Joseph said this about the circumstances in which that had happened:- “6. Mr. Driver did not seek my authorisation for overtime or submit any overtime claim forms to me until the end of November 2006 when he requested that I sign all his forms relating to the period August 2003 to November 2006. I only signed the overtime statements after Mr. Driver showed me a copy of Mr. V. Thulasidis’s [sic] letter dated 28 December 2005 claiming that it had retrospective effect. Since I was being re-posted back to India, Mr. Driver pleaded that I sign the overtime claim forms for the period August 2003 to December 2006 even though Mr. Driver was well aware that the overtime had not been authorised in advance and could not be verified retrospectively. In good faith, and under the influence of Mr. Driver, I signed all the overtime statements without verifying their authenticity. Mr. Driver told me to put the date of signature on a month-by-month basis and which date to write. The exact date of the signature in each statement is one to two weeks after the month to which the statement relates. Mr. Driver needed the forms signed since there was a committee to be established to investigate his claims in detail pursuant to Office Note IS/256 dated 28 January 2003 and the forms would need to be presented to the committee. 7. Mr. Driver assured me that his claims were genuine and that dating the signature as he requested would be needed for the committee to look into his claim. Therefore, in good faith I signed the forms as requested Mr. Driver as I trusted him that his claims were genuine. I have acknowledged my error in signing the overtime statements. If I was aware that Mr. Driver had prepared false claims and had I examined the statements in detail I would not have signed the statements in good faith. 8. I was being reposted to India at that time and seeing as there was not time to examine the claims in detail I made it clear that I was signing the forms based only on his assurances and without verification. I made it clear that I was not authorising payment of the overtime claims and that this was subject to approval of the Regional Director as per proper procedure.”

[80]In cross-examination Mr. Joseph was asked about signing the statements under the influence of Mr. Driver. He explained that what he meant was that he wanted to be fair to Mr. Driver and he did not want to prejudice Mr. Driver’s presentation of his claims to the anticipated investigating committee. Mr. Joseph said that Mr. Driver had specifically asked him to write on each statement, above his signature, “certified and verified”, but Mr. Joseph had declined to do so. He intended, by his signature, only to indicate that Mr. Driver had shown the statement in question to Mr. Joseph.

[81]As I have already noted, in his cross-examination Mr. Joseph did recognise that he may have signed one or two overtime statements soon after his arrival as Airport Manager, rather than all of them in November 2006.

[82]While, as Mr. Joseph acknowledged, it was unwise of him to have signed Mr. Driver’s overtime statements in November 2006, the fact of him having done so had, as it seems to me, no impact on Mr. Driver’s claims in this action. It was not the case that, because Mr. Joseph had signed, Mr. Driver was entitled to some payment. Given the circumstances in which Mr. Joseph signed, his signature was of no value in relation to the question whether Mr. Driver had done the work in respect of which he sought payment. I accept Mr. Joseph’s account that, essentially, he signed the overtime statements in order not to prejudice Mr. Driver’s position in relation to the anticipated investigating committee. That was misguided, but charitable. Mr. Driver’s attempts to obtain signatures below the words, “certified and verified”, which I accept is what he sought, show, as it seems to me, that he was in fact seeking to produce documents which would look, contrary to the fact, as if they had been checked and found correct contemporaneously with the dates on the various statements. His motivation, as was accurately recognised in paragraph 13 of the Amended Reply and Defence to Counterclaim, was “fraudulent intent”.

[83]The short answer to Mr. Driver’s claims to be paid overtime was in fact given by Captain Sharma during the course of his cross-examination. Captain Sharma pointed to clause 6 of the First Contract and said, correctly, that Mr. Driver’s duties and responsibilities were to be assigned to him from time to time by his immediate superiors. It was not up to Mr. Driver himself to decide what he would do, and then seek to charge Air India for undertaking overtime which Air India had not asked him to work. It is a clear and straightforward point. In my judgment it is plainly right. Mr. Driver was not, as he seems to have thought, the judge of whether he should work overtime and charge Air India for it. Air India was only potentially liable to pay Mr. Driver for undertaking overtime duties if it had asked him to perform such duties. On the evidence, it had made no such request.

[84]It is also correct that the First Contract contained no provision for the making of payment for overtime working. The contract contemplated that there would, or might, be a need to work overtime, but detailed provisions in relation to overtime, and in particular provisions for payment for overtime working, clause 10 of the First Contract envisaged would be found in other documents. No such other documents were produced in evidence. The documents relied upon as notices or circulars in relation to overtime did not deal at all with rates of payment or the precise circumstances in which payment might be made for working overtime. I find that, on proper construction, the memorandum dated 20 April 2000 had the effect for which Mr. Cohen contended; that is to say, it was an instruction not to work overtime without the prior authorisation of the Airport Manager, London. The construction for which Mr. Stagg contended, it seems to me, produced absurd consequences; namely that Mr. Driver might choose to work overtime, that being necessary in his view, but then not be paid, because Air India, in the form of the Airport Manager, did not share that opinion.

[85]I accept the submission of Mr. Cohen that Miss Kulkarni’s memorandum dated 5 May 2002 itself amounted to an instruction not to undertake overtime, because strict compliance with the roster set out meant that no overtime would be worked.

[86]I also accept the submission of Mr. Cohen that, on the evidence of Mr. Joseph, which I accept, he instructed Mr. Driver not to undertake overtime without authorisation, unless in an emergency, in which event he was to notify Mr. Joseph of what he had done. Mr. Joseph, in his memorandum dated 1 September 2003, instructed Mr. Driver to submit any claim for overtime for certification by the 5th day of the month following the month in which the overtime was said to have been worked. Mr. Driver did not comply with that instruction.

[87]For the reasons which I have set out the claims of Mr. Driver for overtime under the First Contract all fail.

[88]The claims for overtime under the Second Contract all fail, essentially for the same reasons. Air India did not request that Mr. Driver undertake overtime work under that contract. The contract itself contained no provision for the payment of overtime at any particular rate or in any particular circumstances, although it envisaged that appropriate provision could be found in the Air India Overtime Guidelines in force from time to time. No copy of any such guidelines was put in evidence.

The claims to shift allowances

[89]The alleged foundation for the claims of Mr. Driver for payment of shift allowances were difficult to identify. Mr. Stagg accepted in his closing submissions that the Second Contract contained no provision of any sort for the payment of shift allowances, and thus that no claim in respect of shift allowances was sustainable under the Second Contract.

[90]In relation to the First Contract it was not suggested that any notice or circular had been issued by Air India in relation to shift allowances which fell within the terms of clause 10. I think that Mr. Stagg’s only points were that shift allowances had in fact been paid until 31 January 2002 and no justification had been put forward for stopping such payment. In my judgment that is looking at the matter entirely the wrong way round. An employer may choose to make a payment to an employee of a sum which it is not bound to pay under the relevant contract of employment. An example is the classic Christmas bonus. However, to be entitled to a payment of a particular amount, or of a particular nature, the employee must be able to point to a contract which contains provision for the making of the payment in question. In the present case it seems that at one stage Mr. Driver was indeed paid an amount in the nature of a shift allowance. However, under the First Contract he had no entitlement to such a payment. Consequently, when Air India elected not to continue making a shift allowance payment to Mr. Driver, Mr. Driver was in no position under the First Contract to compel Air India to continue to make the payment.

[91]The claims for shift allowances therefore fail.

The claims for car allowance

[92]The First Contract when concluded contained no provision for the payment of any sort of car allowance.

[93]I have already expressed my conclusions that the effect of the memorandum dated 28 December 2005 written by Mr. Thulasidas, communicated to Mr. Driver, was that the First Contract was varied or amended as from the date of communication to Mr. Driver to the effect that, thenceforth, he was to be entitled to payment of £100 per month in return for making his car available for use for the performance of his duties under the First Contract.

[94]There was in fact no real evidence that Mr. Driver made his car available for use for the performance of his duties under the First Contract. Consequently, submitted Mr. Cohen, Mr. Driver was not entitled to the payment to which he would have been entitled had he actually made his car available. Mr. Raj Chaudhry, formerly manager of LSG Sky Chefs, was called to give evidence on behalf of Air India to the effect that his former employers had, under their contract with Air India for the provision of catering, been obliged to provide an office for the use of Mr. Driver and also to provide transport for Mr. Driver between that office and Heathrow Airport. Mr. Chaudhry told me that the office and transportation for which the contract provided had been made available. In the light of that evidence, which was not challenged, the question arose what necessity there had been for Mr. Driver to use his car for the performance of his duties under the First Contract. Mr. Driver gave some rather vague evidence about visiting markets and suppliers, but it was not specific to the period between the beginning of January 2006 and the termination of the First Contract.

[95]In the result the claims for car allowance under the First Contract fail. Mr. Driver’s potential entitlement only arose from the beginning of January 2006 and there was no evidence which I accept that in the period between then and the determination of the First Contract by effluxion of time Mr. Driver performed the condition precedent to entitlement to payment, using his car for the purposes of his work.

[96]Mr. Stagg contended that the provision for payment of £100 per month by way of car allowance continued after the making of the Second Contract, apparently on the grounds that making a fixed payment would have been of greater practical utility than reimbursement of actual expenditure. I reject the contentions of Mr. Stagg. Under the Second Contract provision was made specifically for reimbursement of out of pocket expenses in clause 17. The effect of clause 21 was that the Second Contract superseded, amongst other things, the First Contract as varied or amended by the memorandum dated 28 December 2005. If Mr. Driver wanted to be reimbursed car expenses under the Second Contract he needed to comply with the provisions of clause 17. There was no evidence that, during the currency of the Second Contract, Mr. Driver incurred any expenses in relation to the use of his car for the purposes of Air India, or that he made any claim in accordance with the procedure contemplated in clause 17.

The claims for telephone allowances

[97]The First Contract when made did not include any provision for the payment of any sort of telephone allowance.

[98]That notwithstanding, Mr. Driver seems never to have made any claim for reimbursement of telephone charges actually incurred which Air India did not in fact meet. His claims in this action were for a fixed sum of £34 per month. How precisely that sum was calculated was obscure. The only light which Mr. Driver shed on the point was at paragraph 210 of his witness statement dated 8 March 2010:- “I also understand that at the time of the letter written by Mr. Thulasidas, the standard monthly payment was £34 and I have therefore limited my claim to this amount.”

[99]As I have pointed out, it was impossible from the memorandum dated 28 December 2005 to ascertain what was the monthly telephone facility extended to other officers in Mr. Driver’s grade. On that account the claim in respect of telephone allowances under the First Contract fails.

[100]If one assumed, contrary to the absence of evidence, that officers in Mr. Driver’s grade, D-10, as at 28 December 2005 received a telephone allowance of £34 per month, Mr. Driver’s entitlement to such amount would have commenced on receipt by him of a copy of the memorandum dated 28 December 2005, and it would have continued until the expiration of the First Contract by virtue of clause 28 on 18 June 2006. He would have been entitled to 5½ months of the allowance, amounting to £187.

[101]For the reasons which I have explained in respect of the claims for car allowances, whatever arrangements were in place as a result of the variation or amendment of the First Contract by the memorandum dated 28 December 2005 were superseded by the Second Contract, which contained provision in clause 17 for reimbursement of out of pocket expenses. There was no evidence that Mr. Driver actually incurred any telephone expenses for the purposes of his employment by Air India after the coming into effect of the Second Contract, and no evidence that he ever claimed reimbursement of any telephone expenses.

[102]Consequently the claims of Mr. Driver in respect of telephone allowances all fail.

Implied term of trust and confidence

[103]Although the primary case of Mr. Driver was founded upon the First Contract, as varied or amended, and the Second Contract, in a section of his written skeleton argument entitled, “The Relevance of the Implied Term of Trust and Confidence”, Mr. Stagg said this:- “15. In Malik v. BCCI SA

[1998] AC 20

at 35A-B, 45F-G, the House of Lords recognised that previous authority established that there is a term implied in every contract of employment that the employer will not:

“… without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” 16. Two aspects of this implied term are relevant to this case: (1) It is an aspect of this term that the employer will co-operate with the employee’s attempts to carry out the contract and not attempt to frustrate it: United Bank Ltd. v. Akhtar [1989] IRLR 507, paras 44-46. It is therefore submitted that if the contract provides for a right to a form of payment subject to certain conditions, then it must not seek to frustrate the right to payment either by failing to specify the conditions or making compliance with them by the employee impracticable: PC 6(2) …, RDCC 7(4) … (2) In exercising any discretion that the defendant had as to making any of the relevant payments, it was obliged to exercise it reasonably and rationally: Cantor Fitzgerald International v. Horkulak [2004] EWCA Civ 1287, [2005] ICR 402, paras 22-46; RDCC 7(4). …”

[104]“PC 6(2)”, I think, was a reference to paragraph 6(2) of the Particulars of Claim:- “In so far as the Claimant’s entitlement to remuneration or expenses depended on claims being approved by a member of the Defendant’s senior management, the responsible manager would not, without good reason, refuse to approve such claims. This term is implied as an aspect of the implied term of trust and confidence, or alternatively to preserve the business efficacy of the employment relationship.”

[105]As I understood it, the point Mr. Stagg wished to make, as an alternative to the principal case of Mr. Driver, was that if, on proper construction of the First Contract or the Second Contract, there was a contractual right to a payment – for example, in respect of overtime – dependent upon a claim for the payment being approved by someone on behalf of Air India, it was no answer to the claim that the approval of that person had not been given, unless there was a good reason for denying the relevant approval. I do not think that that was really in dispute in this action. The essential position of Air India in respect of those claims of Mr. Driver which were pursued was that there was no contractual right to the relevant payment, not that it was entitled to refuse a payment which was otherwise due because a necessary approval had not been given.

[106]“RDCC 7(4)” seems to have been a reference to paragraph 7(4) of the Amended Reply and Defence to Counterclaim:- “Further or in the alternative, paragraph 6 of the Particulars of Claim is repeated. As a result of the implication of those terms, the Defendant was contractually obliged not to undermine the relationship of trust and confidence between the parties by unreasonably refusing to pay a reasonable amount for shift work, overtime and travel and communications expenses.”

[107]It was possible to read that plea as amounting to a contention that Air India was bound, by the implication into the First Contract and the Second Contract of the obligation not, without reasonable and proper cause, to conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, to pay reasonable amounts in respect of shift work, overtime, and travel and communications expenses, even if Mr. Driver had no entitlement under the relevant contract to payment in respect of shift work, overtime, or travel or communications expenses. I am not sure that that was the submission intended, but, if it was, it seems to me that it was wrong in principle. The purpose of a contract is to define, by agreement, the rights and obligations of the parties to it in relation to the subject-matter of the contract. If a contract is in writing, there are well-established, but limited, circumstances in which a term not expressed in the contract can be implied into it. Subject to that possibility, it is presumed that, if a written contract is silent about some particular matter, that is because the parties to it did not wish to make an agreement about that matter. Thus, if a contract of employment makes no provision for the payment of additional money in the event that overtime is worked, that is because the parties have not desired to provide for such payment. Similarly in relation to shift work. It would be wholly inappropriate to seek to utilise the implied term relied upon on behalf of Mr. Driver to write additional obligations to make payments into the First Contract or the Second Contract. As I have already pointed out, no doubt, if Mr. Driver had been requested by Air India to work hours in excess of those contractually required by the First Contract or the Second Contract, that would have given rise to a fresh contract, outside of the then current contract of employment, to pay a reasonable sum for work done pursuant to the request, or a restitutionary remedy might have been available. Again, if Mr. Driver had been specifically requested by Air India to incur expense for the benefit of Air India, a separate contract to reimburse such expenditure would have been concluded or a restitutionary remedy would have arisen. However, no such possibilities arose in the present case, for the simple reason that Air India made no relevant requests. It was under no obligation to consider making any payment in respect of services which Mr. Driver contended he had rendered to Air India but for which it had not asked, still less to make a payment in such circumstances. Possibly it was the fact that actually Air India was prepared at least to consider making payment to Mr. Driver for work which he had chosen to do, but for which it had not asked, that encouraged Mr. Driver to continue, over a period of some five years, to force his overtime work upon it.

[108]Mr. Stagg did not submit that, because Air India had a discretion to make a payment to Mr. Driver for which he had no contractual entitlement, in the sense that someone can always decide to be generous and to make payments which one is not obliged to make, it followed that the principle enunciated in Horkulak v. Cantor Fitzgerald International

[2005] ICR 2005

was applicable in the present case. He was right not to do so. The point in Horkulak’s Case was that the employee was entitled, as a matter of contract, to have the employer decide whether to exercise in his favour a discretion to award a bonus.If the discretion was exercised in his favour, the employee was entitled to a payment. The critical distinction between that case and this case was the contractual obligation to consider whether to exercise the discretion. In the present case there was, on my findings, no obligation whatsoever upon Air India to make any of the payments claimed by Mr. Driver. The fact that, that notwithstanding, Air India might, as a matter of generosity, have decided to make a payment, does not mean that it owed any obligation to Mr. Driver to consider whether to be generous, still less only to decide not to be generous for reasons which were reasonable and rational. In matters outwith legal obligation a party retains the pleasure and privilege of acting capriciously.

Conclusions

[109]In the result, for the reasons which I have given, the claims of Mr. Driver against Air India all fail and the action is dismissed.

[110]Since the counterclaims of Air India were not, as such, pursued, those counterclaims also are dismissed.