20000914 TZHC Dar es Salaam

·L-.' ~ b c~-... -\ • I IN 'YtlE HIGH COURT OF-TANZANIA ~ AT DAR ES SALAAM -➔ ---.:Jr::- a· MISC. CIVIL CAUSE NO. 46 OF 1996 GAUDIN R\vEKAZA MRUG!'JWGl\. 0 • • 0 ,\.PPLICANT versus ·t THE.PRINCIPAL MINISTHY OF LIJ30UR 1 .i'JID YOUTH DEVELOPW!:NT o • • • ·o • • • RESPONDENT RULING The applicant filed this application interms of section 2 (2) of the ' ., Judicature and !1.pplication of la.ws Ordinanc~, Cape 453, section 77 (2) of the law Reform (Fatal ;'\.ccidents and Miscellaneous Provisions ) Ordinance, as ~mended by ~ct No. 55 of 1968,praying for this court to • remove into this court and quash the decision of the 1st Respondent made on 12/7/1996, 'interdictine; the applicant from exercise of his powers and functions as a •! ·civil servant, and by - order of ffi3.ndamus - to 1i,!'t .the said interdiction of the appli ca.nt - to vary or amend or modify the pro.visions of the \.. ,) standing qrder of the Public Service 1994, as it leads to injustice embarrassment and disapp,ointment. ,: - to maintain equaty and io.partiality in handing personal natters in the Ministry of Labour and Youth Development. An affidavit , 'cl~poried to by the applicant: ms been filed in support " . thereto and I will refer to the relevant parts of it, as and when it - ' becomes necessary. The back ground to this application is as follows; The applicant was an employee of the Minitry of Labour and Youth ,1 : Development since 1967 r;r 1/7/1996, he heic.l thG post of Senior labour Officer Grade II - TGS.7 salary sea.le. Tpa t 'he was covered by the provisic.. of section 24 (5) of the Civil .Service ;.ct 16/1989 and .Standing Orders •• 0 • • /2 ... 2 - 'I . 'I • N•• F. 33 _and F. l-34. He was aiso the Chairmen of NUTA - JUWATA and OTTU Brap.ch\: at' the Ministry for some 15 years •' That, further, as such Civil l . . Servani he was covered by the .• eadership Code in terms of the Arusha " Declaration· nD.mely:- I to . ,I to oe a peascnt or worker .::imd· i'not own shares in I • any company; ,! 11 'in 'mi should not hold director'"'hip :; .: ~nterprise; sh<,uld not own a hou8e ~orneni; and; I ' eh4uld only receive one salarJ. The applicant has stated that the abov~ guj..delines were subsquently modified ( by iunplication ) in 1/7/1991 111hen Civil Servants were permitted to engage in other uncome generating activities after official hours so that they suppliment their incomes~ . 11 from 'Ihe applicant quoted an extradt . the 1£:xpre:313_ of January 21 - 24, 19961 where the Vice Resident of the United Republic,while at a rally in Sh::i.nyanga,stated that government had permitted Civil servant to eng§ge in ,I other activities after office h~urs with a ~ew of supplimenting their income. As a consequent, the applicant established a firm in the name of LABM.AN CONSULT LTD which was registflred under companies on Cap. 212., He stated that this firm was established for the purpose of complimenting efforts towards educating' the public on their duties, right and obligation. That . his unvolvement with LABMAN did not inter~re with his duties as a c.,ivil :, hrvant. 'i 1 . on 19I 1I 96, t h e applic-an t received • \ a letter from-· h.is employer, which raised concern about his involvement with that firm. He was told to choose with either remaining as a Civil Servant or his fi:nn. He was finally interdirted 'I on 12/7/1996, which inte!'diction has contii!uled, and according to the applicant contrany to Order F. 34. Hence the filed application. '! Mr. Lebba learned counsel for the ap:plicant has contended that the 1st Respondent did not comply with the relevant ' legal requirements . governing the prosess of discipl~a.ry action-against public servants of the category ~ 4 ' of the applicant. That no charges had been preferred in relation to bhe matters which precipitated his interdiction. He furthe;r stated that Section (24) (5) 1989,Clmme- F. 34. ts to the effect that p~discipline.ry proreduce in respect of an officer served with an interdiction letter is for the institution of chaJ?ges against the officer concerned latesi within days. He has ·submitted ,o that as the applicant was not tormally charged, the applicant was dmr:i.ed an I 'i ,I 11 I -;.~ f. I ,j '\ 1\ II \\ I\ 3 h \! a,n opportunity of being heard. And a.s }he' applicDnt was eventually dismissed on 12/11/97 while this 1mtter wa.s pending in Court, Mr. Lebba 11 '1 ' hqs submitted th,~t this was in clear breach of the principle of right to be hea.rd. \I Mr. !iiall~ba, learned State Attorney,for the respondents, submitted ',I , firstly that the supplimentary affidavit ·;which notified the court on the 1 Ii applicants dismissal was filed without leave of this court and that it .I/ • i\ had no bearing to the rratter in the chamb~r application. ,\ ,', '.I On whether the applicant was not afforded an opportunity of being I heard, Mr,. Mc.J..laba submitted that the appl'ica~t wa.s informed about the I conflict of interest which led to his intefdi~tion; that he was offered 'I a choice and that he was to commu..YJ.icate hi,<:i decision ~ before :\ ', 15/3/1996. Mr. M~laba stated that the apJ;i,;t-icant did not respond. That the applicant was accordingly interdicted and ,, an inquiry was nBde which >·; resulted in the dismissal. '',i, . 1,\ i\ ' Mr. Mallaba has contended that the a:pplicant has come to this court with unclea.ll P~nds in that he ren~ined silent'I without responding• to ,l , his employers letter. Further that conflict of ,interest \•Ja.s apparent 1, 1 ,1 .• to occur between the applicant's line of duty as a civil servant and 1 his dealings with his firm -~~A.f o,r_q__aj_t. He prayed for the application to be dismissed for lacking merits. ·,, 'i I The fundamental question to be addressed ',,by 'this court is this - was the applicant afforded a. right of hearing aftct the interdiction and ,, prior to his dismissal. Was. the proper procedure, followed'? 11 i (\ I must hasten to observe that the dismissal Of the apyjlicc:mt came ,, while the rna.tter was pending in this court. This court was notifind ' of this development by v1ay of a, supplementary affidavit. I, ?vtr. Malleba in his submission has urGcd this court to dismisp or reject the supplementc1ry Ii affidavit for beinc filed without leave of the court. I am of the vie1v II that although this affidavit was filed without leave of the conrt, it has ·,1 11 not prejudiced the respondent's case. 'i\,, ' ,\ ,,, How was the applicant interdicted? The procedure applicable is tha.t " contained in F. 3~-. In, 1tcrr~ of F. 34, where an officer ks been interdicted 'i from the exercise of his powers and functions, a 6,harge must be instituted immediately or not\1irJ:-:i 30 days. And in terms of \ho: interdiction letter of ) •••••o/4 .. 1! • :," ~ - 4 - i 'I I !1 12/7/1996, the applicant had breached Standing Orders F. 33 (IV) and (V) the Respan~entwa..9 obliged to file charges immediately. '.Ihis,the Respondent staled ,. failed to do. Mr. Malleba has that the applicant was given an ~:pportinity to chose what he wanted to do; that the applicant vas:given an opportunity to make a choise. I think the relevant issue is whather the legal requirement governing the prcP.-e~s •f discuiplinary action against the applicant as 0ivil . Servant was complied with. What happened in this case is that the applicant was inter dieted on 12/7/1996 after he failed to make his choi~e between ' performing his duties as a Civil Servant and being a direction with his firm .kbm.,.a.n,._,CCID§~, The Principal Secretary, Ministry 1of Labour and Youth Development, Yi.de his letter KVF/JB.2656/15 of 12/7/1996, t.ermed such an action a disciJtlinary offence in terms of Standing Orders No. F. 33 (IV) and (V), necessitating the applicants interdiction. What should heve followed was for a charge to be laid at the applicants door, interms of Section 24 I (5) of the Civil Section Act 1989, clause F.34. There is no evidence tendered laid . stitrul~ted . to show that such a charge was _ ;,, and w1 thin trie ., .i period of 30 · :I ,! days .• In fact by the time the applicant filed his application on 30/10/97, " the interdiction was still in place. Thus indeed,' was contrary to the 1::d.d down proredure. And what followed was the applicants dismissal on 12/11/97. According to the dismissal letter REF. KZ/R.::F • 21/?7/131 of 12/11/97 it ,' ' I was stated that a commission of ecquiry had been formed to look i?to the allegations concerning the applicants involvement with Labman co~t. 'Ihis court has not been availed with the details of this commission, such as, .,i . its formation, terms of reference and holi it conducted its enquiry. And in l 11 lj ~,t ! view of the lack of evidence, this court is left in doubt whether that • · commission ~ ..J;Ccondllc of enqU.u..1 turu.lyt ed its · · accordance work in , . 1a t ed wi. th t h e s t i:pu procedurel In the premises this ½urt is of the view that the applicants complaint lj.avii merlt, and that the applicant was deined a right to be heard both during the inter diction stage and before 1he was dismis~ed, from his employmenty 7.11' follows therefore that the order;for certiorari should issue against the Minister's o.ction of interdiction and subsequent dismis8el of I) the applicant. I s~y to because the interdiction of the applicant on 12/7/96 wo.s prolonged until 12/11/1997 when he was dis~is sed f~~ hi1=: employment. 1 ,II The procedure stipulo.ted in F. 34 (i) and (ii);'• ,1 Cnn the order for mendamus lie ng~inst the Respondent? In the cose of JOHN BOMB.ALIRWA VS RffiIONAL COMMISSIONER mid RPC,BBKOBA ( 1986 ) TLR, 74, If Mwolusanyn, J ( ns "b,.,:l th~n,m.s~ lnid down five,,1 condition..s for the order of mendamus to issue: These ~e:- ... the n.pplicont muPt h~ve demonded performence ond respondents refused to perform,, I ,1 ,'/ j_ i ) 1 / •••••••• /5 ,ij . ... 5 .. - the respondents o.s public officerS'i] ,. I mu..~t hnve a public duty to perform imposed in them by statute or o.ny other law; ,,i lt . the public duty imposed should be of nn impllrative noture . ~ end not a discretionary one ;j ,I the applicant must have suffinent interest in the - mutter he is nwlying for there should be no other appropriate remedy Ii ii ti 11 availo.ble to the applic:mt ;\ The learned judge wo.s quick to observe tha.t the a.bove rules were not immutable or fixed. I agree crn.d I think en.ch cdse ··h~ to be decided on its mm merits I would fiold:. thb.t rules (b) (c) (d} ii '.'Ad (e) clearly ti.pply tb' the co.sent h~nd, M per the evidence on record. I run therefore satisfied I tho.t I ctm. exercise my discretion in fo.vour of the o.wlico.nt in thus regard., 1! :~ In the premises I n1low the npplico.nt•s npplicru!don and direct the Respondents to des.l with his inter_ diction and 1fdi~missel according to the ~:~~ ::(:::;:dure. This cou,,t disoJ.lows the lth;r proyers under items Ii i) 'i ::! ·,1 Ii , :/ .. ivJ _:: ~ k') ..N - '.. f;_.J : d:/1.!.L-; )'-.,;,. J.f ,,• - V A. J.Bubeshi ;1 JUOOE ......, ...._._... _,. ~ ~ 1l , 1:J \l 14/9/2000 1\ i Coram: Mshote - SDR For the Applicmt Mr. i{ynnge / leba For the Respondent Absent • :I ,I Ruling delivered this 14th September, 2000. " I F .S .Mshcte ~--- SN'i!IOR: DJUTY RffiISTRAR ....--~-~,~·.--.--.--- 14/9/2000 :l 11