SHABAN NASSORO AND ANOTHER v TANZANIA PORTLAND CEMENT CO. LTD AND ANOTHER 1996 TLR 96 (HC)

 SHABAN NASSORO AND ANOTHER v TANZANIA PORTLAND CEMENT CO. LTD AND ANOTHER 1996 TLR 96 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkude J

E

MISC CIVIL CAUSE NO 101 OF 1991

24 November, 1992 F

Flynote

Administrative Law - Orders certiorari and mandamus - Minister of Labour reversing,

on appeal to him, a decision of the Conciliation Board - Whether Minister acted

without jurisdiction - G Sections 26 and 51 of the Security of Employment Act -

Regulation 4 of the Security of Employment (Disciplinary Proceedings) Regulations,

1965.

-Headnote

On 5 September 1990, the Applicants were summarily dismissed from their H

employment at the First Respondent company without the required `Form No. 10'.

The Applicants, aggrieved by their dismissal, then appealed to the Conciliation Board,

which subsequently ordered, on 22 July 1991, the Applicants' reinstatement.

Aggrieved by the Board's decision, the First Respondent appealed to the Minister of

Labour (the Second I Respondent). In his decision dated 13 November 1991, the

Minister reversed the Board's decision reinstating the Applicants.

1996 TLR p97

The Applicants challenge the Minister's decision on the grounds that First

Respondent's A referral of the matter to the Minister was improper since First

Respondent had not filled out `Form No. 10', allegedly required by law. The

Applicants seek orders of certiorari, quashing the Minister's ruling overturning the

Board's decision, and mandamus, ordering the First Respondent to reinstate the

Applicants pursuant to the Board's decision. B

Held:

(i) The requirement in Section 51 of the Security of Employment Act, that

the prescribed forms are to be used `for the purpose of this Act', is mandatory, and it

follows that Form 10, as contained in the Third Schedule to Regulation 4 of the

regulations to the Act, should have been used. C

(ii) The First Respondent had lost his right to appeal to the Minister since

the proviso to Section 26(1) of the Act, that the employer's right of appeal is made

subject to compliance with the `appropriate procedures', had not been complied with.

(iii) The First Respondent's appeal was accordingly not properly before the

D Minister, who lacked jurisdiction to reverse the Board's decision.

(iv) The orders of certiorari are granted as prayed, and the Minister's

decision dated 13 November 1991 is declared null and void.

(v) The Conciliation Board's decision dated 22 July 1991 is restored, and is

ordered to be enforced. E

(vi) The Applicants are entitled to their costs.

Case Information

Ordered accordingly.

Mrugaruga for second respondent.

[zJDz]Judgment

Mkude J: This is an application for orders of certiorari to remove into this court and F

quash the decision of the Minister for Labour dated 13 November 1991 and

mandamus to enforce the decision of reinstatement made by the Conciliation Board

on 22 July 1991 as a decree of the court. Shaban Nassoro and Douglas Utonga, the

applicants, were employed by Tanzania Portland Cement Company Limited, the first

respondent herein, G as security officers. On 6 June 1990 the employer served them

with proposal form No 1 imposing on them summary dismissal, alleging breach of

para (h) of the Disciplinary Code under the Security of Employment Act 1964. The

charge arose out of `irregularities in respect of cement loaded on 25 May 1990 in

vehicle reg No 86985/84'. H

On 5 September 1990 the applicants were served with letters of summary dismissal

from their employer without the required form No 10. The applicants were aggrieved

by the disciplinary penalty imposed on them and appealed to the Conciliation Board.

The Board heard the parties and by its decision dated 22 July 1991 ordered the I

reinstatement of the applicants by the first respondent

1996 TLR p98

MKUDE J

herein. The first respondent, as employer, was aggrieved by the decision of the A

Conciliation Board and appealed to the Minister for Labour. The decision of the

Conciliation Board was reversed by the Minister and his decision dated 13 November

1991 and so the services of the applicants were now to be terminated instead of

reinstatement ordered by the Conciliation Board. It is this decision which is being B

challenged by the applicants mainly on the ground that the reference to the Minister

was improper since the employer had not filled up form No 10 as required by law.

The argument is that the purported appeal to the Minister was not properly before

him and so C the Minister acted without jurisdiction when he reversed the decision

of the Conciliation Board. Hence this application for orders of certiorari and

mandamus.

Mr Mrugaruga, a senior labour officer who represented the second respondent filed a

counter-affidavit in which he admits that the employer had not filled up form 10. For

this D reason I fail to understand him when he says in his submissions that the

Minister had followed the laid down procedure and was fair in reaching his decision.

It seems to me that the Minister cannot be said to have followed the laid down

procedure E when he sits and determines an appeal which is not properly before

him. The appeal to the Minister was referred to him under the provisions of s 26(1) of

the Security of Employment Act, which provides as follows:

`26(1) Where-- F

(a) the summary dismissal or proposed summary dismissal of an employee

is confirmed by a Board and, subsequent to such confirmation, the Committee, or, in

a case to which the proviso to subsection (1) of section 21 or section 22 applies, the

local representative of the G Union, informs the Board that it or he supports the

employee, the employee; or

(b) the summary dismissed or proposed summary dismissal of an employee

is not confirmed by a Board, the employer--

may, within fourteen days after receiving notice of the decision of the Board

refer the same to the Minister;

H Provided that an employer may not refer a decision to the Minister in any case

in which he has not complied with the appropriate procedures specified in head (b) of

this Part.'

The applicant's complaint on the employer's failure to fill up form No 10 is based on

the I provisions of s 51 of the Security of Employment Act which provides as

follows:

1996 TLR p99

MKUDE J

`51. The Minister may prescribe forms to be used for the purpose of this Act

and any forms prescribed A shall be used, with such variations as the circumstances

require, for the matters and in the cases for which they are prescribed.'

The plain meaning of this provision is that if there is a form prescribed by the

Minister B relating to any relevant matter then that form must be used. It is

mandatory. The use of form No 10 is prescribed under the provisions of reg 4 of the

Security Employment (Disciplinary Proceedings) Regulations, 1965 as follows: C

`4. A written note of the imposition of a disciplinary penalty in the form set

out in the Third Schedule shall be handed to the employee if he is available: Provided

that, save in the case of summary dismissal, where the employer hands to the

employee a copy of a report to a labour officer in the form D 1A stating that a

disciplinary penalty has been imposed, no other note of such imposition shall be

required.'

In the present case the employer purported to dismiss the applicants summarily and

there is no suggestion that the applicants were not available. It follows that the

mandatory provisions of reg 4 had to be complied with by the employer purported to

E dismiss the applicants summarily and there is no suggestion that the applicants

were not available. It follows that the mandatory provisions of reg 4 had to be

complied with by the employer by using form No 10 contained in the third schedule

to the regulations. As it is admitted by Mr Mrugaruga that the employer did not

comply with this requirement, it F follows that the `appropriate procedures'

specified in head (b) (which deals with Imposition of Disciplinary Penalties by

Employers) have not been complied with by the employer, Tanzania Portland

Cement Company Limited. G

Accordingly I hold that the employer had lost his right to refer the decision of the

Conciliation Board to the Minister under the proviso to s 26(1) of the Security of

Employment Act. It follows that the appeal by the employer, the first respondent

herein, was not properly before the Minister and so the Minister lacked jurisdiction

when he H reversed the decision of the Conciliation Board. For that reason the

orders of certiorari and mandamus will be issued as prayed and I hereby declare that

the Minister's decision in this matter dated 13 November 1991 is null and void.

Accordingly the decision of the Conciliation Board dated 22 July 1991 is hereby

restored and I order that it be enforced according to law. I

The applicants will have their costs for this application.

1996 TLR p100

A