TRC V

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LABOUR REVISION NO. 202408271000021038 TANZANIA RAILWAYS CORPORATION …................................ APPLICANT Versus THOMAS MASSAWE ............................................................ RESPONDENT (Originating from the Award of the Commission for the Mediation and Arbitration of Shinyanga) (Hon. Alfred Massay - Arbitrator) Dated the 15th July 2024 in Ref. No. CMA/SHY/192/2019 ----------------------------- JUDGMENT 10th December 2024 & 31st January 2025 F.H. MAHIMBALI, J The applicant in this matter has been aggrieved by the decision of the CMA – Shinyanga having ruled in favour of the respondent that his employment was not procedurally terminated. The essential facts of the case as well summarized by the Hon. Arbitrator, may be put this way: The 1 respondent was the applicant’s employee working as Bukene’s Station Master. Having been convicted of offences amounting to serious accounting irregularities for not accounting the Railway Revenue amounting to TZS:454,700/=, he was his employment terminated by his employer vide the Management Appointment Committee (MAC). Undaunted with the said MAC’s findings, successfully challenged his termination before the CMA. Now, the employer being aggrieved with the said CMA’s verdict, has preferred this Revision application as per law pursuant to section 91(1)(a), (b), (c), and section 94 (1), (b), (i) of the Employment and Labour Relations Act (Cap 366, R.E 2019), Rule 24 (1), (2) (a), (b), (c), (d), (e), and (f), Rule 24(3), (a), (b), (c), (d), Rule 24 (11) (a) and Rule 28 (1) (a), (c), (e) of the Labour Court Rules 2007, GN 106 of 2007 and any other enabling provision of the Law. The application is brought under Chamber Summons and supported by the affidavit and supplementary affidavit dully deposed by Ms Amina and Musa Mpogole, learned state attorneys. The center of grief against the CMA’s award is founded on two grounds in which the applicant is inviting this Court to consider whether: one, the CMA had jurisdiction to entertain the Labour Dispute in which the respondent was the public servant. Two, whether the CMA properly evaluated and 2 analysed the evidence of the dispute which led to the impugned award under contest. On these issues, the applicant is seeking the redress of this court of calling and revising the proceedings and the award dated 15th July 2024 in respect of the Labour Dispute No. CMA/SHY/192/2019 by the CMA’s Shinyanga. Having called the said CMA’s record, the parties were invited to argue the Revision Application as filed in which the applicant was dully represented by Mr. Musa Mpogole, learned senior state attorney whereas the respondent represented himself. Arguing for the first ground of revision, Mr. Mpogole submitted that since the respondent is an employee with the applicant and the former being a legal entity established under section 4 of the Railways Act, Act No. 10 of 2007; the applicant being one of the Public Corporations, as per section 4 of the Railways Act defines what is TRC as public corporation. Therefore, the respondent as he was an employee with the Government Corporation, he was a government employee as per Public Service Act (Section 3). Thus, as he was terminated by misconduct, the procedure of challenging his termination is governed under section 31(1) and (2) of the Public Service Act, which provides for the procedure on how to challenge the termination 3 of an employment. As the respondent was an employee with the government, the remedy available for his termination is going to the Public Service Commission to challenge his termination and not as done. For him to file the reinstatement claim (CMA Form No.1), it was out of context. He argued that as per section 25 of the Public Service Act, provides procedure of appealing against the employer’s termination and later to the President. Section 32 of the Public Service Act, provides for the employee to first exhaust all the available remedies before he challenges the same to Court. In essence he was supposed to channel his claim vide the Public Service Regulations Scheme in which he was duty bound to follow. On this, he invited the Court to be guided by the decision in the case of Tanzania Railways Corporations V. Sylvester Mwantella, Revision Application No. 140 of 2023 HC, Labour Division, Dsm at page 7, quoting the CAT’s decision in the case of Tanzania Posts Corporation V. Dominic A. Karagi, Civil Appeal No. 12 of 2022 at page 9; that CMA has no jurisdiction on matters involving termination of government employees. With the second ground of revision, the concern is on the amount of 274,937 issued by the Arbitrator was against the rules awarding overtime payment. As per section 19(3) (a) and (5) of the ELRA, provide the manner 4 when the overtime allowance is payable and how. As per award given, it is evident that between the employer and employee there was no good relationship. As he was suspended from duty, how did he manage to do overtime work? Secondly, the employer was not in enjoyment of any of the duties by the employee and thirdly that there was no such an arrangement of overtime payment between the employer and the employee. In reaching that award (at page 24) of the CMA’s proceedings, it is clear that the Arbitrator was not justified in reaching that finding as done. The case of Said Mzungu Mwana V. Manager of SODECO – SONGEO (PC) Civil Appeal No. 1 of 1976 [1977] TZHC 7 TLR (1980) No. 65 was cited in elaborating the criteria of awarding the overtime. The case of KUWASA Vs. SIMON MADUKA, Application for Revision No. 67 of 2019 at page 9 para2 line 7 was also cited to make the point more tasteful and elaborated. As to the facts of the current case, since the respondent was suspended all that time, it was unrealistic for the grant of the said award as done. Lastly, was the contest on the award of 300,000/= as special allowance to the respondent. He argued that, it is silent as to how the said award was given. As it was not claimed in CMA Form No. 1, the respondent was bound by his own pleading. In the case of Mbeya Urban Water and 5 Sewerage Authority V. Lilian Sifael, Civil Appeal No. 300 of 2022 at page 18 (3rd paragraph), the Court of Appeal made an emphasis that any award given to the parties must specify either it is special or general damages. The genesis of it must be very clear. This is supported by the case of Saulo Malima V. Petro Kingoni, Civil Appeal No. 154 of 2022 at pages 5 that parties as well as court are bound by the parties’ pleadings. Therefore, as it was not claimed, it was erroneously granted/awarded. In the circumstances, he humbly prayed that the revision application be allowed as prayed. The Respondent on his part after he had prayed to adopt his counter affidavit in opposition of the application as per applicant’s prayers embodied into the main and the subsequent supplementary affidavits as filed. With ground no. 1, he submitted that since the matter was well dealt by the CMA, he is satisfied that the matter as well settled. On the alleged stealing of TZS: 454,700/=, there was no accompanying documents establishing the said audit by the auditor. Thus, the applicant’s dismissal order was not guided. In his rejoinder submission, Mr. Mpogole just reiterated his submission in chief that the CMA had no requisite jurisdiction to handle the matter as 6 opposed. He emphasized that it is undisputed that the respondent was a government employee for that matter. Though the CMA made its ruling in respect of this legal issue raised, is not a conclusive argument that the arbitrator was right. As he erred, that’s why he has come to this Court by way of revision for correction. By the way, the referred case concerns TAZARA (Tanzania and Zambia Railway Authority) is different from Tanzania Railway Corporation (TRC). Therefore, as he erred, that decision is revisable. Since MAC was not final in its decision, the respondent had erred in referring the matter to the CMA, and therefore it was not proper for the CMA to consider the matter which had no jurisdiction. He concluded by saying that, by the way these decisions of the CAT are current and clear. Having heard the parties’ rival submissions, the central issue to determine is, first whether the CMA had requisite jurisdiction to preside over the matter on the issue of jurisdiction. Now, as held in Fanuel Mantiri Ng'unda v Herman Mantiri Ng'unda [1975] TLR 155 and in a number of cases that followed thereafter, the question of jurisdiction for any court is very fundamental as it goes to the very root of the power of the court to adjudicate upon cases of a different 7 nature. It follows therefore that, the determination of this appeal turns around the question as to whether the CMA had jurisdiction to entertain this dispute, given the seemingly uncontested fact that the respondent was a civil servant. With respect, I think that Mr. Mpogole advanced a very lucid and compelling argument in support of the view that the CMA had no jurisdiction to adjudicate upon this dispute. In addition to the learned State Attorney's brief submission on that score, I think that before reaching to the same conclusion as done, this subject deserves more consideration. And the noblest route to that conclusion is to identify and examine in detail the relevant provisions of the law which are instructive. To this, the Court of Appeal in Tanzania Posts Corporations vs Dominc A. Kalangi, Civil Appeal No. 12 of 2022 [2022] TZCA 154 (28 March 2022), said it all. That under section 3 of the Public Service Act, “a public servant" is defined as, "a person holding or acting in the public service office" the phrase "public service office" is defined under the same section as: - " a paid public office in the United Republic charged with 8 the formulation of Government Policy and delivery of public services other than:- i) a parliamentary office; ii) an office of a member of a council, board, panel, committee of other similar body whether or not corporate, established by or under any other written law; iii) an office the emolument of which are payable at an hourly rate, daily rate or contract term; iv) an office of a judge or other judicial office; v) an office in the police force or prisons service". In the premises, the CAT concluded that it can hardly be gainsaid that, having been established by an Act of Parliament and being wholly or substantially owned by the Government, the Tanzania Posts Corporation is a public service institution whose principal duty is among others, to provide the public with a national and International postal and other services. (See section 8 of the said Act). This is in line with section A. 1(52) of the Standing 9 Orders for the Public Service, 2009 (GN No. 493 of 2009) made under section 35(5) of the Public Service Act, which provides in part that: - "For purposes of the Public Service Act - Public Service means the system or organization entrusted with the responsibility of overseeing the provision or directly providing the general public with what they need from their government or any other institution on behalf of the government as permissible by laws and include the service in the civil service; the health service; the executive agencies, the Public institutions service and the operational service", [emphasis added] As I take the import of the above-quoted provisions together with a more elaborate exposition attached to it, is that the employees of the Tanzania Railways Corporation are public servants. While section 31(1) of the Public Service Act, provides for the servants in the executive agencies and Government institution, such as the Tanzania Railways Corporation, to be governed by the provisions of the laws 10 establishing the respective executive agency or institution, sub section (2) makes it mandatory, thus: - " Without prejudice to sub-section (1), public servants referred to under this section shall also be governed by the provisions of this Act". In the context of the instant case, the CMA is further kept at bay from entertaining labour disputes involving public servants by the provisions of section 32A referred to by Mr. Mpogole, which states categorically that: - " public servant shall, prior to seeking remedies provided for in labour laws, exhaust all remedies as provided for under this Act". From the foregoing analysis and conclusions, I entertain no doubt whatsoever that, the respondent in the present case was a public servant and therefore, upon termination of his contract of service and, on being aggrieved by the said termination, the provisions of section 25 (1) (a) and (b) of the Public Service Act would have come into play. In other words, this is an issue which was governed by the above- quoted provisions of the law which states that: - 11 "Where- (b) a Permanent Secretary, Head of an Independent Department, Regional Administrative Secretary or a local government authority exercises disciplinary authority as stipulated under section 6 by reducing the rank of a public servant who had been promoted or appointed on trial, or reduces the salary or dismisses the public servant, that public servant may appeal to the Commission against the decision of the disciplinary authority and the Commission may confirm, vary or rescind the decision of that disciplinary authority; (c) a public servant or the disciplinary authority is aggrieved with the decision in (a) and (b)f that public servant or disciplinary authority shall appeal to the President whose decision shall be final". [Emphasis added]. Notably, section 3 of the said Act defines the term "Commission" to mean "a Public Service Commission established by section 9 and includes any department or division of the Commission". 12 Going by the wording of the above-quoted provision, it is unambiguously clear that all disciplinary matters or disputes involving public servants are exclusively within the domain of the Public Service Commission whose decision is appealable to the President. As correctly submitted by Mr. Mpogole and as amply demonstrated above, the CMA has no jurisdiction to adjudicate upon such matters. I have keenly gone through the CMA’s ruling while considering this legal issue whether the CMA was clothed with jurisdiction to preside over the matter. The Honourable Arbitrator, mainly relied on the High Court’s decisions in Salehe Komba and Another V. Tanzania Post Corporation, Labour Revision No. 12 of 2018, Deogratias John Lyakwipwa and Henry Maghubo V. Tanzania Zambia Railways Authority (TAZARA), Labour Revision No. 68 of 2019 and Jeremiah Mwandi V. Tanzania Posts Corporation, Labour Revision No. 6 of 2019. With the above referred cases by the CMA, and reading the depth of Tanzania Posts Corporations vs Dominc A. Kalangi’s decision (supra), it is clear that the latter reasoning is more rich and so protenious to hold the point in current manner. 13 For this reason, it is my conclusion that, indeed the CMA had no jurisdiction to entertain the dispute between the appellant and the respondent who was a public servant. On this account, without recourse to the remaining ground of appeal, this appeal is found to have merit and is accordingly allowed. The proceedings before the CMA are consequently quashed and the orders emanating therefrom are set aside. This being a labour dispute, I make no order as to costs. DATED at SHINYANGA this 31st January, 2025. F.H. Mahimbali Judge 14