rajani industries ltd vs minister for labour 1997 tzhc 207 6 may 1997

IN THE HJGH COURT OF TANZANIA AT PAR ES SALAAM. ML3C„CiyiL8C ^ ^ . N 0 ^ . 5 1 (/9l RAJANJ INDUSTRIES LTD ........APPLICANT VERSUS THE MINISTER FOR LABOUR ...... RESPONDENT R U L I N G ; MSUMI,J . ' — This is an application for the prerogative order* of Ce»tior3£V Mandamus against the appellate decision of the Minister for Labour sefctVUg aside the decision of Temeke District Conciliation Board, hereinafter referred as the Board, Prior to their dispute which gave rise to these proceedings the applicant and one Wilfred Watson Chikoya, who in this ruling will be conviniently referred as the appellant, were in the relationship of employer and employee. The appellant filed an appeal •to the Board after the applicant had terminated his service by a lett§* dated 17/5/91• After full hearing of the said complaint, the Board upheld the termination. Di<iaeti28rfl»dlvith this finding appellant decided to appeal to the Minister for labour -who allowed the appeal and ordered for reinstatement of the appellant. In the present proceedings the applicant is challenging the legality of the said decision of the Minister. Besides the affidavit, the grounds upon which the application 19 based are provided in paragraph 5 of statement which, for convinieo^5 1• sake is hereby reproduced, 5. The grounds upon.which the said reliefs are sought are as fo&Xowf*- £a). The Minister for labour/Labour Commissioner failed t® follow the principles of natural justice in that, (i) He failed to hold due and judicially prAper enqui*y or hearing by acting on memorandum of the appellant «..° «•» alone contrary to section ^+3 of the Security of Employing^ Act Nq« 62 of 196^ Cap 57^o (ii) He failed to hold due and judicially proper enqui|pr a»d or hearing by not calling any evidence or eliciting any information to the circumstances under whj^h the conciliation Board ordered the employment of the second respondent ( appellant ) to be terminated* (b)» The Minister for Labour/Labour Commissioner failed to a^t judicially in that he denied and/or neglected to give the applicant an opportunity.of submitting his reply to the memorandum. OS appeal -submitted by. th® -se-c-ond r^spondeai tp him. •* 2 ** (c). The decision 0f the Minister for Labour/Labour C Commissioner displays manifests errors of law on the face in that (i) It holds that the Minister for Labour (Labour Commissioner) can act on memorandum of the appellant alone, (ii) It gives no reasons for reversing tha decision of the Conciliation Board. (iii) It is an abuse of the admistrative and statlJ±o»y powers. ISxaept for containing some evidential factual assertions, in addition, the above ientioned grounds are substantially repealed in the applicant5* affidavit. Significantly in his affidavit the applicant deposes among oth®* facts, that he could not reply to the memorandum of appeal because he was Aft supplied in time with the proceedings and decision of the Board despite his written application for them. Through the counter affidavit of one Abraham I» Mdamo who identified himself as L i^our Commissioner, respondent - made general denial of the#e contentions .nd demanded for strict proof of the same. The applicant is attacking the Minister’s decision essentially on two grounds. Fii st the failure by the Board to supply him with a copy of its decision together with the proceedings has denied , him of his right to prepare his defence against the appeal in question. And secondly that the Minister has not given any reason in support of his decision. With respech, both complaints are quite valid, Annexture D to the affidavit is a lettey dated 25/8/92 vide which the Board sent the proceeding# to the applicant. However, on top of the said letter is i'^prxiiteci with a refeipt Stamp of the applicant showing that the said letter together with it« enclosure were received on 10/11/92, that is about seven days after the degisig» of the Minister was delivered on 3/1V92. This Contention is one of the assertions deposed by the applicant in his affidavit. In his coiuite* affidavit, respondent made no attempt to controvert this allegation except offering general denial. As the matter stands it is very likely that the ^a£d letter was received on the stamped date. Again there is an unchallenged pjegg of e^dene§>' demonstrated, by the applicants letter of 6/8/92 requesting th§ Boajid to supply him with a CQpy of the proceedings. There is no- specify denial by the respondent that the said letter was never received by the Board. i* thus a fact that the Board failed to supply tha applicant with a copy «f fch§ proceedings thereby denying him- reason^W--® opportunity to prepare his defence to the appa&U For this reason the set of th© Mnis-fcer of proceeding - 2 - - 3 - With the appeal and eventually issue the judgment in question amounted to condemning the applicant unheard which is contrary to the principles of natural justice. The copy of the decision of the Minister produced as Annexture C to the applicant speaks loudly and elearly in support of the complaint. It contains no reason for the said decisions In his submission the learned State Attorney contended that annexture C was just a summary of the decv«»3i«l and tlat there is a d®t8il9.d judgment supported by reasons. Surprisingly this contention was never deposed in the counter affidavit and even more surprisingly the learned State Attorney never availed the court with said copy f')' perusal, lam of the respectful opinion that in upsetting the well argued decision of the Board, the Minister took no pain to give reasons why he deci Jed the way he1 did. It is definate that this is a misuse of the statutory power conferred on him. This court has a duty, under its prer^- gative jower, to correct this legal malpractice. Accordingly the pyeyey* for ordar of certiorari is granted hence the decision of the iiinigfcejr issued on 3/11/92, is hereby quashed. And farthermore the Minister is directed to re-admit the appeal and determine it in accordance with the law. K., Hi A. K3UMI 'A jypoi. 6/5/97. For the Applicant : Mbuya, Fo» the Respondent : Kamba.