t3 TPA VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT MBEYA LABOUR REVISION NO. 7748 OF 2024 (Originating from Labour Dispute CMA/MBY/KYL/21/2020/AR14) TANZANIA PORTS AUTHORITY............................................... APPLICANT VERSUS GEORGE A. LUTEGO............................................................ RESPONDENT JUDGMENT 18th July & 22nd August, 2024 TIGANGA, J. In this application for revision, the applicant, TANZANIA PORTS AUTHORITY is calling upon this Court to call for records of the Commission for Mediation and Arbitration for Mbeya, at Mbeya (the CMA), to examine the record, proceedings, and the award of the said CMA, dated 04th October, 2021 in Labour Dispute No. CMA/MBY/KYL/21/2020/AR.14. The applicant is also seeking for this court to satisfy itself as to the correctness, legality, and propriety of the said proceedings and the award, then revise them, by quashing and setting them aside. The application was made by the chamber summons which was supported by an affidavit sworn by one Janeth Mugini, learned State i Attorney and the Principal Officer of the applicant. George A. Lutego (the respondent herein) protested the application through a counter affidavit sworn by himself in which he opposed and disputed most of the facts deposed in the affidavit filed in support of the application. In a nutshell, the facts leading to this application are that; the respondent was initially employed by the applicant as a Mechanical Equipment Operator on a contractual basis from 2006 to 2008. Later on, in 2009, following his submission of certificates that proved his academic qualifications, he was promoted to a position of senior rank and for an unspecified period contract. In 2016, upon verification of the submitted certificates, it was revealed that one of his certificates was forged. As a result, a disciplinary hearing was conducted and the employee was found guilty of the offence of gross dishonesty, hence, on 27th December 2019 he was terminated from employment. Aggrieved by the termination, the respondent instituted a labour dispute before the CMA complaining of unfair termination. At the disposal of the matter, it was found that the termination was substantively unfair. The applicant was thus ordered to reinstate the respondent and pay him all salary dues from the time of termination to the time of reinstatement, in other words without loss of remuneration. 2 Being dissatisfied by the CMA's award, the applicant has preferred the instant application on two grounds contained under paragraph 2.15 of the affidavit, as follows; one, that the CMA had no jurisdiction to entertain the impugned dispute as the respondent was a public servant who was required to exhaust all remedies as provided for under the public service laws before resorting to labour laws, and two, that the CMA had no jurisdiction to entertain the dispute which was time barred without the applicant first seeking and obtaining condonation. During the hearing of the application, Ms. Kause Kilonzo, Mr. Joseph Tibaijuka, and Ms. Angela Shekifu, all learned State Attorneys teamed up representing the applicant while on the other side Dr. Mtavangu, learned Advocate appeared representing the respondent. Hearing of the application was conducted orally in which counsel for the parties strived to argue for and against the application. For brevity, I will not reproduce what the parties submitted but will consider their argument as I go along, in the course of determination of the matter. In my endeavor to deliberate and consequently decide the matter, I will start with the first complaint that the CMA had no jurisdiction to entertain the respondents dispute as he did not first 3 exhaust the remedies provided under the Public Service Act, [Cap. 298 R.E 2019]. In case the ground will be resolved affirmatively, the other ground that the matter was time barred will be rendered nugatory on the reason that when a court or tribunal assumes jurisdiction which it does not have, the proceedings and any resultant order becomes a nullity. Even an appellate or revisional court lacks jurisdiction to substantively decide the matter arising from the nullity proceedings. See Tanzania Revenue Authority v. Kotra Company Limited, Civil Appeal No. 12 of 2009 Court of Appeal at Dar es Salaam (unreported). In support of the first ground, Mr. Tibaijuka argued that the applicant is a Public Institution and the Respondent who was her employee was a public servant. According to him, section 3 of the Public Service Act [Cap. 298 R.E 2019] defines the public servant as a person holding or acting in a Public Service Office. Also, the Interpretation of Laws Act, [Cap. 1 R.E 2019] defines a Public Officer or Public Department to mean and include every officer or department invested with or perfecting duties of a public nature whether under the immediate control of the President or not, and includes the officer or 4 department under the Local Authority, Community or Public Corporations. Mr. Tibaijuka went further and argued that, according to section 32A of the Public Service Act, a public servant is required to exhaust the remedies or mechanism provided for under sections 10 (l)(b) and 25 (1) (c) of the Public Service Act (supra), which includes appealing to the Public Service Commission, and if aggrieved by the decision of the Commission, appealing to the President of the United Republic of Tanzania. Mr. Tibaijuka was of the view that the act of the respondent of filing the dispute directly to the CMA without exhausting the remedies under the Public Service Act and its Regulations was illegal and the CMA lacked jurisdiction to entertain the matter. To reinforce his argument, he cited the decisions of the Court of Appeal of Tanzania (CAT) in the case of Tanzania Posts Corporation v. Salehe Komba, & Another, Civil Appeal No. 128 of 2020 CAT at Mwanza and Kilimanjaro Airport Development Company vs Erick Itemba, Civil Appeal No.405 of 2021, CAT at Moshi. He underlined that since the respondent was a public servant the CMA had no jurisdiction to entertain his complaint. 5 In reply, in so far as the 1st complaint is concerned, Dr. Mtavangu started by adopting the counter affidavit and went on submitting that according to the Public Service Act, the respondent was not a public servant since the applicant who was his employer is excluded from the meaning of a public service office. He argued that section 3 (a) (ii) of the Act excludes corporations established under any written law in the meaning of public service office. In his view, the applicant being established under the Tanzania Ports Act, is a body corporate and, therefore, excluded from being the Public Service Offices. He relied on the decision in the case of Deogratias John Lyakwipa and Another vs TAZARA, Revision Application No.68 of 2019, under page 5 of the judgment, it was held inter alia that, the applicant who was employed by TAZARA was not a Public Servant because TAZARA was established by the statute, so it is not a public body. Dr. Mtavangu contended that since the respondent was not a Public Servant, he was not bound to comply with the Public Service Act, nor the Regulations thereof. In the alternative, Dr. Mtavangu contended that the Public Service Regulations, particularly regulation 60 (2) do not mandatorily provide for referring an appeal to the Public Service Commission or institute a 6 complaint before the CMA as he did. He emphatically argued that the CMA has jurisdiction to determine any dispute referred to it, in terms of section 2(1) of the Employment and Labour Relations Act, [Cap. 366 R.E 2019], and section 14 (1) (a) and (b) of the Labour Institutions Act, [Cap. 300 R.E 2019]. To him, the cited sections of the two laws permit both public and private servants to refer the dispute before the CMA without segregation as long as the relationship between the Employer and Employee exists. To support his argument, he cited the CAT decision in the case of Bay Port Financial Service Ltd, vs Cresonce Mwandele, Civil Appeal No. 19 of 2017 [2020] TZCA 1876 (26 November 2020) where it was held that no law forbids the employee to refer the matter to the CMA if he has not referred the matter to the appellate body in its organization. He also cited this court's decision in the case of Mbozi District Council vs Michael Simbeye, Revision No. 47 of 2015 where it was also observed on page 4 that the aggrieved party has an option either to file the complaint to the CMA, or Public Service Commission, Dr. Mtavangu distinguishes the two cases cited by Mr. Tibaijuka namely; Tanzania Posts Corporation vs. Salehe Komba (supra) and Kilimanjaro Airport Development Company (KADCO) vs 7 Erick Itemba (supra) that the facts of the two cases are not similar to the case at hand and that they based on different laws and the procedures to be followed are not similar with the present disputes, where the law that establishes TPA does not provide for procedures to be followed. In rejoinder submission, Ms. Kilonzo reiterated the submission in chief. She was insistent also that section 4 of the Public Service Act, provides public office to include a Public Corporation and that in Kilimanjaro Air Port Development Company (KADCO) (Supra) it was clearly stated that, public servants include those employed in the Government Agency and Corporation. Further, in the case of Tanzania Posts Corporation on page 11, the CAT held that section 2 of the ELRA, is to be read together with section 32A of the Public Service Act (supra) which requires the Employee to exhaust all remedies under the Public Service Act. Ms. Kilonzo distinguished the decision in Bay Port Financial Services, that the same was about a Private Sector Servants, while this case is on a Public Servant procedural law which was followed to terminate the respondent. She also distinguished the case of Mbozi District Council vs Michael Simbeye (supra) it was before section 32A came into existence, he said. 8 I have considered the rival submissions by the counsel for the parties and the law. There are three issues for determination regarding the point of jurisdiction of the CMA for the disputes involving the public servants in the public service office. One is whether the applicant (Tanzania Ports Authority) is a public service office and whether the respondent was a public servant for that matter, and two is whether or not exhausting remedies under the public service laws by a public servant before taking the dispute to CMA is mandatory, three, whether the application before the CMA was filed out of time. Supporting the first ground which covers both the first and second issues, Mr. Tibaijuka submitted that, the applicant is in public service office in the meaning of section 3 of the Public Service Act and section 4 of the Interpretation of Laws Act. He also reminded this court that, section 32A of the Public Service Act mandatorily provides for a public servant to exhaust the remedies provided for under sections 10(1) (b) and 25 (1) (c) of the same law, instead of taking the dispute directly to the CMA. In his view, the CMA lacks jurisdiction to entertain the matter involving the public servant. On the other hand, Dr. Mtavangu maintained that the applicant being established by the written law, is not a public service office and 9 that the law does not forbid the employee from the applicant from taking the dispute directly to CMA without exhausting the remedies provided for under the Public Service Act and its regulations. Based on the import of the law, and the argument by the counsel, I find it pertinent to restate who is a "public servant" in terms of the Public Service Act, [Cap. 298 R.E. 2019]. As correctly submitted by Mr. Tibaijuka, the term is defined under section 3 of the Act as follows: "'Public servant" for the purpose of this Act means a person holding or acting in a public service office; " The term "Public service office" is also defined under the same section to mean: "Public service office "for the purpose of this Act means- fa) a paid public office in the United Republic charged with the formulation of Government policy and delivery ofpublic services other than- (i) a parliamentary office; (ii) an office of a member of a council, board, panel, committee, or other similar body whether or not corporate, established by or under any written law; io (Hi) an office the emoluments of which are payable at an hourly rate, daily rate, or term contract; (iv) an office of a judge or otherjudicial office; (v) an office in the police force, or prison service; (a) any office declared by or under any other written law to be a public service office;" From the definition herein above of who is a public servant; it is clear that he or she should be a person holding or acting in a public service office. The public service office as per the above definition is a paid public office in the United Republic charged with the formulation of Government policies and delivery of public services excluding institutions and bodies provided under section 3(a)(i) to (v) of the Public Service Act. In 3 (a) (ii) of the above law, an office of a member of a council, board, panel, committee, or other similar body whether or not corporate, established by or under any written law are excluded from the public service offices. It is this exclusion that Dr. Mtavangu based on arguing that the applicant in this matter is not a public service office. In my considered opinion, Dr. Mtavangu has missed a point in interpreting 11 the law because properly interpreted, the law under consideration excludes the offices of a member of a council, board, panel, committee, or other similar body whether or not corporate, established by or under any written law. Properly construed, the above law does not provide for what Dr. Mtavangu invites this court to hold. In my view, what are excluded are the offices of a member of a council, member of the board, member of the panel, member of the committee, or other bodies, similar to the council, board, panel, and committee. The law does not exclude the corporation established under written law. Dr. Mtavangu's argument about a corporation under written law was also raised in the case of the Tanzania Posts Corporation v. Salehe Komba (supra). In the end, however, the CAT held that Tanzania Posts Corporation is the public service office as per the meaning provided under the Public Service Act. Also, see Tanzania Posts Corporations vs Dominic A. Kalangi (Civil Appeal No. 12 of 2022) [2022] TZCA 154 (28 March 2022) (TanzLii). Dr. Mtavangu also cited the decision of this Court in Deogratius John Lyakwipa vs. Tanzania Zambia Railways Authority (supra) on this, suffices to say that, the authority is persuasive, it is no binding 12 to this court, therefore having relied on the interpretation I have made herein above, I am not prepared to follow the said authority. Moreover, I have gone through the record and found that the applicant in terminating the respondent's employment had followed the procedures stipulated under the Public Service Act and the Regulations thereof. In that regard, it is my firm view that, had it been the case that the corporations established under the written law do not fall within the meaning of public service office, and their employees are not public servants, the applicant would not have complied with the procedures stipulated under the Public Service Act and its Regulations. Further, inspiration may be taken from the case of Tanzania Posts Corporation v. Salehe Komba (supra) where the Tanzania Posts Corporation like the Tanzania Ports Authority which is established under the Tanzania Posts Corporations Act, (the written law) still, was found to be a public service office. Based, on the above discussion, it is thus instructive to hold that, the applicant herein is a public service office and the respondent was a public servant. It follows therefore that the first issue has been resolved in the affirmative. Now, the next issue is whether or not a public servant must exhaust the remedies under the public service laws before referring a 13 dispute to the CMA. On that, the learned Principal State Attorneys cited this court section 32A of the Public Service Act, which mandatorily provides for the exhaustion of the remedies under section 10(1) (b) and 25 (1) (c) of the Act. Dr. Mtavangu emphatically counter-argued that it is not mandatory, it is optional for a public servant to channel his employment dispute to the public service labour dispute resolving institutions and he may also justifiably refer the matter to the CMA. In resolving this issue, the rival arguments by the counsel for the parties will not detain me much. As correctly argued by the learned Principal State Attorneys while relying on the position of the Court of Appeal of Tanzania in the decision of Tanzania Posts Corporation vs Dominic A. Kalangi (supra) and Tanzania Posts Corporation vs Salehe Kibona (supra), section 32A of the Public Service Act (supra) is loud and clear as it provides no option to the public servant when it comes to the requirement to exhaust the remedies under the public servant regarding the exhaustion of remedies under the Public Service Act and its regulation. It provides that; "32A. A public servant shall, before seeking remedies provided for in labour laws, exhaust all remedies as provided for under this Act." 14 The CAT in Tanzania Posts Corporation vs Dominic A. Kalangi (supra) held that: it is unambiguously dear that all disdpiinary matters or disputes involving public servants are exclusively within the domain of the Public Service Commission whose decision is appealable to the President..., the CMA has no jurisdiction to adjudicate upon such matters." Deriving from the above holding, the account by Dr. Mtavangu that section 2 of the Employment and Labour Relations Act (supra) cutters for both private and public servants is unmaintainable. A public servant is bound to first exhaust the remedies under the Public Service laws before referring the dispute to the CMA. This position was recapitulated with an emphasis on yet another recent decision of the Court of Appeal rendered on 13th June 2024 in the case of Kilimanjaro Airport Development Company (CADCO) vs Erick Itemba (supra). This leads to the conclusion that the decision in the case of Bayport Financial Services (T) Limited vs. Cresence Mwandele (Supra) cited by Dr. Mtavangu has no relevance to this matter as it involved a non-public servant. That said and done, I am of the firm view and inclined to uphold on the first ground of revision, that the CMA had no jurisdiction to 15 entertain the dispute preferred by the respondent who was the public servant. The respondent was mandatorily required to exhaust the remedies provided for under the Public Service Act and its Regulations. Having resolved the first ground in the affirmative and found in the manner that determines the application, I find it to be more academic to endeavour to determine the remaining grounds which constitutes the third issue, its decision is therefore inconsequential as it will not change the end results. In the end, I hereby grant the application. The proceedings before the CMA are quashed, and the award and resultant orders are set aside. This being a labour dispute, I make no order as to costs. It is accordingly ordered. DATED and delivered at MBEYA on the 22nd of August, 2024. JUDGE Right of appeal explained and guaranteed J.C. TIGANGA JUDGE 22/08/2024 16