19991207 TZHC Dar es Salaam

IM THC HIGJ.: COURT OF TANZANIA D!.\R ES SALl~AI'f, DL:.iTRICT iIBGISTfl.Y AT D.'\R ES St,LAAM MISCELLANEOUS CIVIL C.!\US?~ N0.53 OF 1996 GROUP F'OR SECURITY ( T) Litiil'ED •••••••••• APPLICANT

VERSUS 1. Mii~-I.ST:SR F'CR LA.B0Ul1 AND YOUT:-J DEVEl,OH~IJ~Tl 2. DAR ES SAL/1.lll'·! CONCILIA'l'ICrJ BO/:RD l . RESPONDENT::-. 1 {

R U L I N G . BUBESF[L_i: This application is f j_1ed ty tll:: applicsnt who is praying f0r an crder of certicrari t0 quash bath decisi0ns cf the IV~inister f0r La.bcur and the C:;ncj.liaticn Board dated 18/6/96 m1d 3/2/94,, resp2cti vely. Through thc,se decisions the ernplcyees Venant lfauJ.c~, Chae ha Pc.:t2r and KhaJ. ifa Bakari Mtai were· ordered tc be reinstated in their enrplcyment ..,..f,, with the applic~nte ,· Tho grounc"s up-:,n which this am.J.ication is based include lirni t.-=1tic-n cf time, f8 ilurc~ tc observe th-2 rules cf nstur81 justic;_-,, f3ilurc tc:· observe fundamental principles 1 0E•f"r~~ _,.._, C a-r"vi,- .L ,-.J .. n~ A n~-~e·1~ ·t,. .!.[-; c~r just decision; f3ilure to t.Jl.. _1 .£JJ. .• 1 - cc-nsider gn:,unr:s ,:,f reference; failure to take into account what the err.pl9.ye~s actu8lly wanted. Jm affid.Bvi t of one STE"i•U. :,3 M/;LY-I, the perscnnt:J. and administrative '.manager of the applicant .was filed in support of the 8l)lilicatL:,n. Leave w2..s granted by this court on 4/2/97. r; Thi::, court clircctcd ccunseJ. tc file their arguments and they did. sc timely. Mr. J sdeja learned c-:::,unsel rei:-rc-:?sentcd the applicant, wh:l.lc Mr. 1\~wembe le3rned St3t2 littorn(,y r.epresent~xl. the resp.-:ndents. Mr. Ja.deja has sul..:rnitt0d th8t the applicant summarily dismissed the e~µloyces on 25/4/89 and 10/8/89. He stated that th2se

employ8es referred the rngttor to the Dar eP, '3-~ 7 "c::1 Ccnciliaticn Beard ti-'.tO and haJ.f Yt?8rs lator - see lmnextures D 1 whcr2 th.:: c·~t-.: rt.:f ~r.rc-:.''. to i:.5 12/12/91 bci:n: the date wh<2n· an::lcyce:s t·.. ::,k their complaints to th0 a.ncilisti n B(•nrd~ .... /2 _• ..,. "1¼-- _..,......·•---:4""· '..... , .,.-;tlf._•i..t• ...:~u .,....,..~ A.<) i # . ~ 77" ,r- ,):••;iir·:r~ •. ;,..,..~ . 2 1•1r. ti.tr gw,::').,..,., ___ ,1,:..-•1;;; l\J - ... :'\ on t·nis . h as suomi ' . t t e d th8t as the employees were 8rr2sti:::·d en 19/4/1989, it \•ms imprcper fer the emplcy,:,.r tD dismiss th2rn en 25/4/89 .1.nd J0/8/89 when o.l r2ady a Crimin'31 ch'.1r;:;c h'l s b;.:-2n J'.:1 id :=-it their dcor. That this was ccntrary to secticm 29(1) a11d (2) c,f Sec·.1ri ty of· Empl9yment Act s;.'. s.e,ys Mr. Ngwe111be ~ Be hc-i s added thdt as the purp,:rtecl clismiss3ls were csntrary to the lai.r1, then subscqu2nt · labour proceedin~-;s were alsc i1lcgcll c1nd of no ccnsequcnt. IL, is th---r2fore submi ttins that • the issue:? cf lirni tr-it ion, which· issu,; Mr. J a deja h'.3.S raised is therc:f·:::-re basd·es.s. Mr. J ac1ej.q ha6. this S8.y;' that acccrding to the , judgmont·deliv2rcc:;. on 16/6/90 in Criminal Case N, ·.496/89, the three employees were chgrged in hay, 1989. ... Mr. Jadeja has referr0d this c0urt to a set of documents marked :3s J.mnextur2 1 P' - judgrn2nt and

Forms. He added that the twc cmployses Vcnant fomle ancl Chacha Peter were dismissed from their 0rnJjlcyrnent en 25/4/89. While the emp1e:yer r,.hrilf,?n Bakari v:.3s cU.smissed cm 10/8/1989. It is n:-;t in dispute thersfore th-:Jt when the two emplcyees were r: E:ing ch2r~~c< fur the criminal offence in rfay 1989; 1 they had already b~en dismissed from their employement. As fo~ the e~ployer Khalfa Bakari, he ha~ been-dismissed for absentl::'8ism which was n:~,t ·;:i crj_rninal offence within the· purview uf 0 octir·.n 29 ~1· Iv1r. Ngwembe did not state when exactly were the empicyees ch3rged. I am surely if he had perused the judgment of th2 criminal case he wculd h:~vc-:- c.isccvered that the t?rnplcyees were dismissed before- they were char;e::d with crirr.inal cffence. It is therefor2 safe tc hold that the summary dismissals were ' imposed c,n VGnent HquJ.2 211.c Cb.3cha Peter while the:re were nc Criminal csse pendin:{ en ccurt on that ~:1.ate It is also pertin2nt ta note th~t it is th2 employee .Hali.fa Bak.:1ri whc was dismi.ssed on 10/8/89 for absenteeisrr venant Haule and ·net / c:is was statec~ liy -:-ne J. I-'1• Biswaro in his minub2 to the Acting Principal Secret3ry dated 29/1/96 - see Annccture itpn ' su1·,0l ,.-J:' iE:d t,:J ccurt by Fir. J 8.deja. . ' 3 .-:, f \,.-,- ~-~i.11....,. Ha·v l..r1··~ v ,._; c.Hsmissals wer2 therefore ,.,..,,, t'n'"'-:.:l ....v _ +11"

in order, rn=rn:ely, th:--it sect.i..c-n 2S, -w?:: D(·t breach,::d by the applic·e.nt, -the, n0xt issur:: fer cc;.1sid2raticn is· whether the eni-r,loye,::s refen:·ncs to the :9,;erd was within· time. 0 for the respcndent did net sut~it on this, as ht.? had bssecl l:is arguments on the premise th2t sacticn 29 hed Geen breached. Mr. JadejG su~Jrni tt:0cl that the reference tc- t.t:e Conciliati,)n Bc.F.ird w:::is rnsd<2 mere. 14 cbys 8fter the clisrniss81s. Th"J.t th2 em1::,l,Jy,:2s actually referred the matter to the Bn8rd on 12/12/91, clearly, by thAt date the st2tutory peric,d of 14 dc:iys had l8ps0d - Secticn 23 (2) 3 s qmended by Act 1/75. If the twc employees were dismissed summarily-on io¢4/89, they had to refer that ccm~laint to the Board v1i thin 14 days. This is acccrd.ance v.ri th SectL··n · 23(1) (b) nam2ly th3t on tb,t date, tb~e emplcyees were issued with Ferm I. It is also to be notcc~ thet the emplo'yees were nc,t arrested on 20/4_/89. What ha:pr,enecl is thAt they ·were taken tc the police staticm to have their statements recordecf and then resumed normal duty. They were formally 2rrested Find charged cne: mcnth laterf that is in May, 1989. This is as p<::'r tho evidence of Venant Haule - see judgment cf trj_,3l court - 11\nnexture 'P'. · New if that te thc-cssG can this c.-:iurt gc alc-:ng with Mr. Ngwembe' s subrnissicn that en 20/1+/89 there was a criminal

case pending in c.:.:-urt? I think_ net. Cn the contrary I wnuld tend tu e~ree with Mr.,Jadeja's submissicn that the two employee~ Venant HauJ.e and Chacha Fet2r wc::r:2 nctified ,-:;,f the employ::r.'3 decision to summarily dismiss them on 20/4/89. They ought to heve immediately referred their comi:J_aint tc the Board.. The prevision of 8ection 23 (2) are mandatory and the law de.es net perrni t fC:r extensi':-n cf .time in th'.3t regard. I find it unfortun2.t(0_th2t the: Conciliati-:m Boaro. didnot rule on this issue despite th<=: f:::ict that it was r3ised in cc,urso of the h::::arinc. In fact OTTU (W) had told thi-~m that the mattGr was tim2 barred, it was upon the chairman uf the Boerd to rul2 whether er not the reference was time barr0(1 before prccceding to full hearing. 4 t Havins observed th.3t I think I am inclined • to agree with Mr. Jadejas submissicn that the reference tc the Bo0rd by the ccrn;;16inants Venant Haule and Che.cha Peter v,ras cle.:1rlJ' · Cut cf time. It :fcllcv.;s thE.!r't.::f ore th:1t the proc~edings before the Boar~ and the Minister were · n.. nullity and I so declgre. I grant the ~pplicatinn an¢ quash the decisiGns of the ccncilinti-:::m Beard ds-ced 13/2/94 and that of the Minister for Labc,ur anc: Yout.;1 Develuoment dated " 18/6/1996 for being null and void. The .a3:)plicant is a\\rarded his costs. /.,. .-, ,, i, - I .•: (' '· ,; :\ 1 I· ; .. ; j: 1/'• ·J I Delivered before~ A·; ·~·2r::_.BU~tsii{-- Mr. Kornba for Res:r,:-mdents ;JUDGE and in absence of the 7/12/99 Applicants.