20040708 TZHC Dar es Salaam

i ' " IN THE I-UGH COURT OF TANZANIA (DAR-..E-S-SAf-:-A:-A-MJ21STRICT REGISTRY) I AT DAR ES SALAAM. .... .., CIVIL CASE NO. 128 OF 1998 GODILLO R. 1\1K01\1A ................. PLAINTIFF VERSUS 1. PERMANENT SECRETARY MINISTRY OF WORKS ........... . ] 2. THE HON. ATTORNEY GENERAL ] ... DEFENDANTS ; . 'tf! .,{ (., ,l JUDGMENT ,!' . :r" BUBESHJ., J. 4 -------- . J . ' The plaintiff has filed this claim against .the defendants wherein he is claiming for both damages, special and general, interests and cost for unlawful termination or redundancy from employment. He is also claiming for his entitlements on account of redundancy and a declaration that his suspension from employment was illegal. The plaint was drawn by advocates Ndanzi and Kifunda but during the trial, I the plaintiff prosecuted his owri case. represented the Attorney general. Mr. Chidowu, State Attorney There were two issues framed for the Ccmts .determination: i I I J, i 1 ► Whether or not the plaintiff was lawfully retrenched in accordance with Civil Service Laws. If the answer to (1) above be m the negative. ► Whether the plaintiff is entitled to any reliefs. PWl was the plaintiff himself. He testified as follows that in 1974 he was employed as Technician Grade IV with the Ministry of Works, and promoted to grade III in 1977.. That he joined the then Dar es Salaam Institute from 1977 to 1980 and was posted to Kilwa where he worked as Resident Engineer up to 1983. He also worked at the head office working with Maintenance Section Aerodromes and in 1985 was transferred to Tabora airport as Resident Engineer dealing with expansion of that airfield. He went on to explain that-from there he came back to the head office where he worked with design section airports and roads. He felt b~ing frustrated and complained where upon a c.omm1ss10n was appointed to investigate his complaints - annexture 6 to reply to written statement of defence. He stated that he was then moved to Kigoma as a planning engineer but was suspended from work in 1991 on various allegations - see annexture l. He also ·-,:ided that another inquiry was set up - see anncxture 5 and was retrenched before the inquiry commission gave its report. PW i stated further that annexture 7 is the basis of all the allegations against him. That 2 his boss instead of supporting him, went against hi1n. He said the allegations are a frame up. Again he stated that those allegations were supposed to be levelled against him within 30 days vide S F34 Standing Orders but it came after two years and therefore outside the relevant period. He has complained that he was not told of the comm1ss1on of inquiry findings, instead he was retrenched. He has denied that he had bad blood with his fellow engineers. He has asserted he was a good worker otherwise why wasn't he given a warning. Again he has cmnplained that he was allowed to go on leave for the periods 1989/90; 1990/91 which entitled him to a salary in terms of Section Fl2 - of the Standing Orders - Annexture 8. And during per.iod of interdiction he was to get half salary - vide Section H34. He has .added that as he was interdicted on half pay fr()m. February, 1991 to March, 1993 and· as he was not dismissed but retrenched then he is entitled to receive the other half of his salaries. He lamented that his rights had been violated and his reputation tarnished. In consequence thereof he has asked this Court to grant q:im the damages claimed in the plaint. During cross examination by Mr. Chidowu for the Attorney General he conceded that liP{?n retrenchment he was paid gratuity and one m0nths pay in lieu of notice, plus luggage allowance from Kigoma to Bukoba. He stated that the charges were non existent and the inquiry commission did not tell him of their findings. 3 /0 PW2 was Simon Kalonga. He told this Court that he joined the Ministry of Works in 1972 as a civil technician and thereafter was engaged in various other projects at different locations. He said he eventually joined the plaintiff while at Kilwa in 1980. He testified that he worked with the plaintiff and observed that the plaintiff was a good worker. That he heard no complaints in connection with the plaintiffs work performance. PW2 stated that he was surprised when he heard about the plaintiff's termination and termed it an unfair treatment. During cross examination PW told this Court that problem started when the plajntiff refused to counter sign some vouchers which had been signed by one Ndiwaita - Principal Engineer aerodromes. This was in connection with the Kilwa project. PW3 was Abdul Abeid Awadh. He testified that he joined Ministry of Works in 1974 as a technician. That he upgraded and went for further training which enabled him to work in various departments within the ministry. He stated that he was retrenched in 1997. He told this Court that he has known the plaintiff since their school days and has not seen the plaintiff engaged in a fight and that the plaintiff is capable in his job. With that evidence, the plaintiff closed his case. For the defer..dant, advocate Ch1dowu summoned Stella C. ~v1:S-uya who appeared as DWl. This witness told the Court that she joined Ministry of Works in 1996 as Administrative Officer. That she has read the plaintiffs 4 '' ··1 record which reveals that he was engaged on 25/11/74 as Tecfinician ~ · ' Assistant Grade JII and promoted in 197 8 as Technician Grade III; Assistant Executive Engineer in 1980 and Senior Assistant Executive Engineer in 1985. She stated that the plaintiff has. worked in Musmna, Butiama road project in 1976, Kilwa Masoko - Lindi in 1980 - 1983, in Dar es Salaam in 1983 - 1985, in Tabora in 1985 to 1?87, Mbeya in 1987 to 1989 and Kigoma from 1989 - 1991. ' 'i, I She went on to explain that the plaintiff was interdicted on 1/2/1991, and before that he was given warning vide letter Ref. MW/CP.M.1527 /25 of 12/8/1988; and the reasons given were that the plaintiff was rude and insurbodination. Again in 1990 he got another warning vide letter Ref No. CPF/COM/183/4 of 28/12/1990 the reason being he refused to be transferred, and his work performance was not satisfactory. DWI stated further that the plaintiff was suspended from employment in 1991 vide letter Ref. CWC/PF/M.1527/33 of 2/2/1991 from Kigoma. She · ·also said that there was an inquiry on him 1n 1988. And plaintiff was retrenched in I 993 vide letter ref. MWC/C.20/1 of 31/3/1993. Pursuant to the directive from Utumishi Ref. MUF.6.45/097/77 of 3/11/1992. DWI stated that the plaintiff was retrenched because he had been given warning, had an inquiry made on him and was also suspended. DWI stated plaintiff was paid all his entitlement but did not claim for benefits. She also stated th?t the letter from UTUMISHI gave guidelines on '.vhom to retrench which. included those reaching retirement age, drunkards, those found to be lazy at work and those who have been given warnings. ' 'i ', • ! '' '' '! 5 I' i ;.,, ,Lll During cross examination by the plaintiff, DWI stated that the plaintiff was issued two warnings in 1988 and 1990. She also stated the warning was issued by the employer and not the inquiry team. And when re-examined DWI stated that there is no record to show that the plaintiff complained about what he was paid and complaints over terminal benefits haa to be made within one yar of retrenchment and this complaint would have to be communicated to Utumishi. With that evidence the defendant closed his case. The issue for determination is whether or not the plaintiff was lawfully retrenched in accordance with Civil Service Laws and if not whether the plaintiff is entitled to any damages. It is not in dispute that the plaintiff was retrenched on 31/3/1993 vide· letter Ref. MWC/C.20/1 of 31/_3/1993 and that he has been retired by the Presiclent as a way of cost reduction exercise. The plaintiff . has claimed that he was unlawfully terminated through retrenchment because he was not told of the results of the inquiry teams that were formed to investigate him, and that no disciplinary charges were preferred against him in terms of Civil Service Regulations. He has also cot'1pl::iined that the defendant did not follow the lai{~ dnwn procedure when dealing with his interdiction. "., I '~ 1·1 6 1/i; l'.1:r .,,, r:I', I I'Ii l; r' I,, ·. . . ,/()' · According to the evidence of DW Stella C. Msuya, the plaintiffs'wcik ii r, performance was not up to the required standard. His employer found him rude and insubordination; he was issued with warnings in 19 88 and 1990. That he had also refused' to be transferred hence the second warning. The plaintiff was interdicted on 2/2/1991 as per annexture 'D' and was finally retrenched on 31/3/1993 that is, some 25 months after. There is no evidence as to what happened after this interdiction on half pay. I agree with the plaintiff that there was lapse in the procedure. The plaintiff was entitled to be notified of what had become of the interdiction in terms of the Standing Orders. . I I , I That said is the plaintiff entitled to the reliefs prayed for? The plaintiff has claimed for special damages in terms of an:ears of salary from date of . 'I interdiction, leave pay for months covering 1989 to 1993; under payment of luggage allowance of Tshs.300,000 and transportation allowance. Special damages have to be proved by direct evidence. For leave pay the plaintiff has stated that he was not given for the period 1989/90 and 1990/1991. If indeed this is so, and there is no evidence from the defendant to counter it then this item has to succeed. He will be given salary for the months he was supposed to be on leave. Again the plaintiff is entitled to the other half salary during the period he remained interdicted that is from 2/2.'l 99 l to 31/3/1993. As for leave fare I . think as he is to get money instead of leave days there is no basis to clai;:n for leave fare. Items on under payment of luggage allowance as well as 7 . rr transp01t allowance are disallowed because the plaintiff has not shown the basis of such entitlement. On general damages the plaintiffs claim is based' on reasons including psychological torture and languishing jobless. He 1s claiming Tshs.145,000,000. There is no breakdown on how this huge amount has been arriveq. at. By their very nature general damages have to be assessed by the Court regard being had of the peculiar facts of the case. I In the matter at hand, and considering the fact that the plaintiff was paid his Ii gratuity and other benefits. I am therefore unable to agree with him over the claim. I reject it as being without basis too. l I I In sum the plaintiffs claim is allowed only to the extent that: ., ► A.nears of salary half pay from 2/2/1991 to 31/3/1993 is to be paid to the plaintiff; and ► Leave pay for 1989/90 and 1990/1991 only to be paid. This amount after calculation will carry interest at the Courts rate of 7% from date of this judgment to payment in full; and of course costs . . A.G. BUBESHI JUDGE 8 8/7/2004 Coram: S.A. Lila- DR For the Plaintiffs Absent For the Defendants Miss Temi, State Attroney CC. Eliuter ORDER Judgment delivered today in the presence of learned Temi, State Attorney for the Respondents and in the absence of the Plaintiff. DISTRICT REGISTRAR 8/7/2004 . '- .. in the absence of plaintiffs and in the presence of Miss Temi, State. Attorney for the defendants. • " r THIS COURT DOTH HEREBY ORDER THAT 1 The plaintiff s claim against the defendants be and is hereby allowed only to the extent that:- 1. Arrears of salary half pay from 2nd February, 1991 to 31 st March, 1993 be paid to the plaintiff. 2. Leave pay for 1989/90 and 1990/91 only be paid. 3. The above amount after calculation will carry interest at the court rate of 7% from 9ate of the judgment to payment in full. 4. Costs of the case be paid ~y defendants. BY THE COURT ·.:_. ._ ~ JUDGE 2 r. ,.1; lj :1; ''.1 I ·'' IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 128 OF 1998 GODILO R. MKOMA ·········~····················· PLAINTIFF VERSUS 1. PERMANENT SECRETARY MINISTRY OF WORKS DEFENDANTS 2. THE HON. ATTORNEY GENERAl- DECREE The plaintiff claim against the defendant for judgment and dec'ree as follows: (a) Special damages Tshs.1,360,000/=. (b) General damages Tshs.145,000,000/=. (c) ·interests on (a) and (b) at the commercial rate from 1991 to the date of payment.· ( d) Declaration that the suspension by the letter dated 2nd February, 1991 with Ref. No. CWC/PF/M.1527/32 was illegal. (e) Costs he provided for. (f) Any other order and/or relief as this Honourable Court may deem fit. This case coming for final disposal before Hon. Bubeshi, J. and delivered by Hon. S.A. Lila - District Registrar on 8th day of July, 2004