19910220 TZHC Dodoma

..,, .• I IN THE HIGH C0Uil.T 01'"' TANZANIA AT DODOMA ' (DC) cmL A:l?PEAL NO. 53 OF 1994 (F:rom the decision of the District Court of Dodoma at Dodo~a in Civil Case No. 71 of 1993. Im:FOTIE W.P. DYJ-iNSOBS.."1.A., Esq.~ RESIDENT JY'..h.GISTRATID TANZANIA RAILWAYS CORPOIU~TION ) c/o TANZANIA LEG.AL COTI.PORATION BANK HOUSE, SJ1N0~1Ji. A\,':Si.HJE ) .. . APPELLANT P.O. BOX 2203, Dlill ES SALi:JJvJ:. j versus .JO...C!EPH MASINGA • • • • • • • • • • • • BESPONDElil!L' JUDGMENT s al3. iimcm~LWA. PRM. EX. Juns • There is only one grotmd of ar~cal in this matter, namely, "The lea.med trial Magistrate erred in laM in holding that the °J:'.GSponcLQnt was entitled to his wages during the period he was ir::iprisoned 11 • The facts which led to this suit are as follows:- The respondent Joseph Masinga was convicted by the Dodoraa District Court in Cri.r:li.nal Case No. 463 of 1988 of the offence of stealing by servant c/ss 271 and 265 of the PenaJ. Code Cap.16, while the second count was of neglect to prevent the comnission of an offence c/s 383 of the Penal Code. He was sentenced to three years imprisonment on the first count and six months i~prisonnGnt on the second coui1t. The sentence were to run concurrently. Dissatisfied, the respondent successfully appealqd to the High Court at Dodona.viae DC Crir:l.i.nal AppeaJ. No. 22 of 1991. It was common ground at tho trial that responaent was head. ' ... . ,..._ ,,,,,,,, __ ,~ :;.;: '::,,, ...........~' ......., :..... ~ .. J.n .... , ~ ... - ....... . : • .J\J.,,. _ C- ,,.,, w• ..... , ... ..... \- lot•,• IW ,I, ;,4 ' • • .. i,J ~ ..... - • ...... • :1.~. r. .'l~·.o;:,c-. • dt ·' ,"'""···•• · -~ • ...... ,,,,., ... W..-j~• •"'·• J ·" •• \I• .. ,h,.,,_.. •·· .• ,,1.• """''" ·" ., • .,., ....."0"'• · •'" iJ ""001 11111 WOlll'G ",, ...... ., •.• ..,;11,.11 "''"'·"'"' ..... .,." "''"•II I ... W° .._,. ._~ .. •a:•:!'.. 1.u,,..i~ll.1 1 :; ~:•,·:!'-~ e. ~~;Cl m'l', ·,-:i1ti e·· .,., , ,. ',. ~.S'~~e . .~,:i t:;.i;~~n'..'\:~t ~tlI'.?1~4W~illi f .. .t -bl.• ' : .t,.~.. ,. rt.~' r➔ '"" -1~-, j!.,. •· . ~ ·i.\~•1·, l\!!le'll"! , ..,..'t!". I '·I • I ~ I • • ' '. 4 : r.~,.~ ... ; "/'~,• •1 • ~ •'<1.''"" J\ 1•, -'· ~1W'11..~i,';'l"~&L "'~1 •, , • • Jl ,l;j~)"I • • :, I l R I . ., , "" 'f 2 - i;ook...fro::1 thoxo a nu.ubor ·of thingo··al.l.o,::,od to .ho-ve baen stolen • .After his acquittal, the rcspontent filed a suit in the Dodooa District Court Civil Case No. 71 o:r 1993 in which he prayed for a sur:1 of . shs .. 135, 380/= be.ing his half pay c1u:ring the period of suspension ·•· f"ull s ~ for the period. during which he was in prison and hi.er · st before his appeal was detornin0c.l. i.e. fro;:1 L - Novenbe:c, 1988 to st 21 - Noveml:>er, 1991. ,, The trial -court granted tho a~plication for peyr.ient .of iull salary during the period which the a::;>pellant w9--s inprisoned. ·.· . ' ' : ..,.:. . . _:};::-·,.•, , ; rt'"denfea· his application for the other payment of half .. ............ &G.laries. tM'lich wore paid. during the suspension period. I have gone throueh the trial court record, both the a.d.vaoat~ of the partees and the t::t>ial court o::!nvnnsed at a great extent the legaJ. positions on the issues rnisod. !'>n r:ry part, it's my settled view that once an enployer seta in mo-ti.on .c.rirJinal charges ag:-inst an enployee wh:Lch. axe the sane tine a breach of disciplinm-y code he should always abide by the results of the court in that natter. That is in case of acquittal of the employee, the enployer is bounc1 to pay the full salary of the enployee fron the day he put in r.1otion the crir.tlnal proceedings against the enployee and onwarc1s to his resumption of his duties. That period of crir.u.nal proceedings, and or inprisonnent which is latter set a.side on appo8.l is not terr:ri.nation of the eontract of employnent • In fact an_enployee has an option in such circunstances either to instm:tute Criui.nal proceedings on to take discciplinary □easures against the enployee. In this natter the respondent is entitled to his full salary during the period he was in prison. I would add that the respondent was also entitled to his h2,lf salary after the acquittal, 1:Jut I nc,t th<>t hi'! rlj,1 'Y\f'T, l,.v,'•'·" .,._,-,-~ o· ·;·,,a';": ----i---~ -!;.n• ""C:i~.:.qn 0f th~ District i.;ourt, n.s such I will not r.1...1.2.;:c lli'lY ore.er in that regu.rcl. >•. (:: .:.-,. :::::. :;·:'.::: :.:.) • ::··~:.:: • ::::. .;::'\.-:~:J ... 20,/2,'~ ;'9'i