George M. Kilindu vs C.R.D.B. (1996) LTD & another (Misc. Civil Cause No. 37 of 1998) [2000] TZHC 41 (7 June 2000)

H i THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MIjSC. CIVIL CAUSE NO. 37 OF 1998 GEORGE M. KIL1NDU ............... APPLICANT Versus C .R .D .B . ( 1 9 9 6 ) LTD. AND ANOTHER .................... REoI'CiliJni'Tio R U L I N G SUBJECT: Application for Certiorari and Mandamus KATITI, J. One GEORGE I I . KILINDU, the Applicant herein, has consequent upon leave b e i n g granted, filed this application, for orders of Certiorari and Mandamus, i n respect of the Industrial Court's decision, v/hich upheld the Respondent's decision, to retrench the Applicant. The antecedents, that have culminated into t’ lis application, do not cover a vast territory. They are as follows. As from way back 1992, the applicant, had been employed, by the then TANZANIA RURAL DrJVELOPMi-.'NT BANK, but later by C.R.D.B. (1996) LTD., hence to be called the Bank, or oecond Respondent as Director of Administration and Human Resources. Consequent unon the restructuring of the said Bank, the applicant's directorate was abolished, and hence the applicant applied for the position of a Director of Management Services, interview for w'lich was conducted on 25 / 0 / 1993 * It stands immutely true, that the applicant did not Ret this post. However, it was recommended that the applicant be considered for position of Corporate .Secretory, a position that had been applied for, and for which Hr. John Mwanyika, had been interviewed. It is defying challenge, that on the 1/9/1993* the Iianaging Director of the 2nd Respondent summoned the applicant at the (Jymkana Club, where the said Managing Director told the Applicant, that when the applicant's recommendation was tabled before the Board of Directors, it was disclosed, that the applicant was rude and arrogant, and that he had not heeded any warnings, a*?d that the same applicant, having hitherto been Director of Administration and Human Resources, should be held responsible whatever the over-employment, in the Hank, that led to the restructuring exercise. The applicant protested his innocence before the Managing Director, maintaining I.hat thr > allegations were not true, and hence his request to he heard by the i . ’ oard of Directors. The r vld I'anagi"'-: Director, advised that the matter be put in writing, tho a 'i.l.ic-inL r j o 'id, vide his letter Annexture a 6 . However, the applicant was served with a rvti'enchnicnt letter (Annexture 5) sayinr: "accordinr to the criteria mutmllj- agreed upon with OJ.TU 7 /ou will be affected by the exercise. The aiv.l Icnit however wrote to the Board of Directors, tiirough the Managing director, seeking opportunity to appear before, and to be hoard by the Board of” I'irecfcors. L l i e Managing

Director by his letter the applicant was to appear before it, on the 1^/9/1993* He was never heard, but was informed that the Board's decision to retrench him, had not changed.J These facts in summary, can ably withstand the vigours of credibility tests. But the same culminating into grievance, i t : led him into filing, a 'Trade Dispute No•10/1993i challenging tho Board of Directors decision faulting it (i) i*or, suspecting him of misconduct and convicting him unheard, a serious transgression o r principle of natural justice, (ii) That Mr. Mwanyika attended the Board Meeting, that retrenched hi.n, - imputing bias, again offending a principle of natural justice. For reasons above, the Board's decision was sought be quashed, to give way, to his reinstatement, back into his job without, loss of benefits. The Industrial Court, bambarded with researched authorities, and pros and cons submissions, came up with a verdict: 1. That the right to be hoard arises from accusation, or disciplinary indictment, wi’ ich was not being the cane here, it did not arise. 2. That the applicant was not prejudiced, by the presence, of the Managing Director and Mr. Mwanyika, in the Board meeting of 1^/9/1993i aR there was nothing to decide against the applicant, and that after all Mr. Mwanyika, was already a Corporation Counsel, hence .Secretary of the Board, 3« 'That the applicant, was retrenched after failing an interview. I think the above gives the reason for the complaints and the Industrial Courts reasons Tor rejecting the complaint. I Ghall hence call the Industrial Court, the Court for case of reference, are immutable, even if the sun comes down. The applicant, has therefore filed this application for Certiorari, to quash the Industrial Court's decision, for reasons:

1. 'The Industrial Court, erred in holding that the right to be heard, where a person is alleged to have done something wrong, but not apply in the appellant*s situation.
2. That the Industrial Court erred, to hold th-<t it was quite in order, ; , or the Managing Director, who informed the applicant of the disciplinary offences used by the itoard for his retrenchment, and Mr. Mwanyika who was recommended for the same position, to attend the ’ toarc’ Meeting, in which the applicant's appeal was to be heard, v/hen the applicant was not allovred in.

3- That the Court erred, in holding that the applicant failed in the interview, 'or the petition of Corporate Counsel, when he never applied for it, nor interviewed for, I shall henceforth, and hereunder invest, utmost energy, to see how if the Court was wron^ in holding that the applic nt, had no rir;ht to be heard, as there was no disciplinary wrong preferred against him, but as a result of restructuring process or failure of intei'view, Upon closely examining the record, it does indeed appear, that upon restructuring; the f'anke operative Directorates were, reduced from ten to five, and the applicant's Directorate of Administration and Human Resources was affected, and honce his application for Fost of Director of Management /Services, the interview i'or was scheduled for 25/y/l993» The effect of this restructuring left the applicant with no substantive office, or status in the Eank. Like anybody else, subject to eligibility had to apply for any of the emerging Directorates. This he did. His application runs as follows: The General Manager, Cooperative and Rural Development Bank, Dar es Salaam, Dear Sir, APPLICATION TOR POSITION 07 DIRECTOR OF __________ MANAGEMENT SERVICES ____________ I am making reference, to your letter M o ,CRDB/GM/DAT/ 11/1/^8 of 5th August, 1993* I hereby apply for the above mentioned position. My curriculm Vitae, is attached herewith. Please do not consider me, for a lower position, if you think, I do not qualify for the post I have applied for. Yours faithfully, G.M. KILINDU There is no controversy at all, that the applicant did the interview, but never got the post, hence being served with a retrenchment letter, that inter alia reads as follows:

Ref. CRDB/PCF/100 25 /Vt Date 3 0 th August, 1993 Re: CRDB STAFF RENTRENCIIHENT You will recall, that under the present CSl)B restructuring pragramme, an agreement wan reached, between the Management of the Bank and OTTU, regarding the retrenchment of Staff. According to the criteria mutually agreed upon with OTTU, you will be affected by the exercise. This letter iG to notify you, with much regret, that you have been retrenched v/ith immediate effect. A cheque of Shs.1, 6^+7»205/=, is enclosed to cover all the agreed retrenchment expenses, as detailed in the attached payment voucher. While regratting that we shall mi^s your good services in the Bank, we also hope you will continue being a good ambasnodor of CliDB. Best Wishes, S g d : MANAGING DIRECTOR There is no escaping from truth, the applicant was retrenched. Here I must confess, that, I find myself easily succumbing to t^e obvious^compelling temptation, to ask what in law, would retrenchment mean, Tor the tiefinition for the same, in not oven known, to the Security of l Jmplpymcnt Act Can. Without folding my hands helplessly, I dutifully feel like seeking assistance e l s e —1 where. In the case of PIPUAICu SUGA1? HILLS LTD. vc Pl’ .^AICil SUGA;? MILLJ HAZJOOR UNION /T9567 SCR o 7 2 , it was hold that retrenchment connotes, in its ordinary acceptance, that the business itself is being continued, but t l v - i t a nortion of the staff, or the labour *£ force, is discharged, as a surplusage. That means termination of services of all the workmen, as a result o r closure of the business, cannot therefore be properly described as retrenchment - also see STATE BANK OF INDIA vs SHRI N. SUNDARA HONEY (1976) 2 SCR 16 O. It may therefore safely be said, and concluded that, retrenchment is the termination

b y the employer, o r the services of an employee, other than a punishment, inflicted by way of disciplinary action, nor does it include volunt ry retrenchment or retrenchment on reaching the age of superanuation, nor upon ill-healt:'.. Tlie law of the land, approximately on tho matter, resides in . ‘ .ection 6 (g) of the Security of iimploymont /Vet, 1c X^f, tint provider; lor the Workers Committee at the pi <ce of work, to mai^e consul La tionr. vrith the employer, concerning any impeding redundances, ..nd the application of any joint aj^reement on redundancies, and Annexture A5 confirms this, v;hen it claims that ‘ ' according to the criteria mutually agreed upon with Oi'iTJ, you will be affected by the exercise.! l It is build* J at this juncture, that 1 want to V / i a bridge between the retrenchment worker g f h and the Constitutional provision in Article 22(1 )t ‘ ' Every person has the right to wofck." Significantly on the "right to work" the Indian Apex Court in the case of DELHI TR;ul;iiORT CORPORATION vs PTC HAZDOOR CCI.'GaESS AIR 1991 SC 101 p> 173 has this to o b s e r v e : MThe right to life includes, the right to livelihood. The right to livelihood, therefore, cannot hang on to the fancier, of individuals in authority. The empolyment is not a bounty from them, nor cat) its survival be at their mercy. Income in the foundation of may fundamental rights, and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can il.l-afl'ord to be consigned to the limbo of unde fdnod premises and uncertain applications, 'fhat will be mockery of them." And the Supreme Court of the United Stater; regards the right to work^ as the most precious liberty. This is reflected /rom the observation of Dauglas J . in BARSKY vs BOARD OF ItDGEHTS (195*0 3^7 US ¥ f 2 , that runs as follows: "The right to v/ork, I had assumed was the most precious liberty that a man possesses. Man has indeed, as much right to work, as he has to li.e, to be free, to own p r o p e r t y ........ To work means to eat. It also means to live. For many, it would be better to work in jail t.rrn to stay idle on the calves.^ To me, the "right to work" connotes two aspects, -1- for work is already acquired, and interference with the same i/f unlawfully intended, the Court would come in, to prohibit the action, or quash the same. - 2 - If work is sought, than that is seeking a right not already acquired. Thus while the right to v/ork

ia incorporated into the Constitution, this Country hoc not attained the capacity to guarantee it, not because it considers it any the less fundamental to life* It would all the same urge, that any restructuring ex> rcise, shculd be mide to involve as few redundancies as possible. However, it does seem, that the applicant has 110 open quarrel against the decision to^and the restructuring exercise at all; and I can hardly blame him. His « rage^was understandably occasioned by what the J'ianaging Director Kir. Lubambe told, him on the 1/9/1993* His evidence as to what transpired at Gymkana Club runs as follows: "Tarehe 1/9/1993 Ag. Managing Director aliniardikia ki-note akinitaka kukutana naye Gymkana Club saa 1J& Che tendered it.) Nilikutana naye huko Gymkana naye ambako aliniambia kuwa baada ya usai.li, nilipendekezwa kuwa baadala ya kuwa DMDA niwe Mkurugenzi Mambo ya Sheria, na kuwa Bv/ana Hwanyika awe Msaidizi wangu. Alinieleza pia kuwa mapendekezo hayo ya Management kwenye Board ya Wakurugenzi, bodi ikanituumu kuwa kwa sababu nilikuwa Mknrugenzi wa Utawala na kwa sababu nilihusika na hajira, pia lewa sababu kuna kupunguza wafanyakazi ninastahili kuwajibika. Hivyo basi sistahili kuwa Mkurugenzi wa Mambo ya oheria. Aliniambia kuwa Bodi ilielezwa, pia kuwa niLiwahi kuonywa mara nyingi kwa ukaidi hivyo sistahili kupata hiyo kazi iliyopendekezwa na Management. Kutokana na tuhuma hizo, basi bodi i'liamua kuwa nipunguzwe kazi., r I seem to gather from the applicant, that as per communication from the Managing Director, what led to his retrenchment, was the accusation that, -1- he had 9 • • ! • • 1 extravagantly and irresponsibly over employed leading to restructuring, for which he was to be held responsible, hence retrenchment. -2- Arrogance <obstins^cy at place of work, and without heeding warnings. Obviously by any standard, or stretch of objectivity, the above rationally examinedjif they amount to grounds for blame, and determination to the prejudice of the applicant, then the principle of natural justice, had to apply for creative play of fair play, to vindicate the applicant. But did the Managing Director, tell the applicant the truth on the 1/9/1993 after 7*30 p.m. at Gymkana Club? Oln answering this

question ^ am inclined to answer the same positive though the Court never gave it the weight it deserves. I honestly condidly entertain this answer. First it is clear, that Hr. Rubambe had a discussion with Mr. Kilindu on the matter, and the vehicle for the meeting reads as follows: ' ’ George, If you have the time let us meet at the Gymkana Club today 1/9/93 at about 7-30 p.m. John Rebambe 1/9/93" And following, that meeting in fact next, day the applicant wrotea letter seeking the audiance with the Board of Directors, the receiptof the letter was a c lenow?,edged, and an appointment made to see the Board of Directors as it is demonstrated hereunder: "Mr. G.M. Kilindu, P.O. Box 268, Dar es .Salaam. R e : RETRSI IdlKhJHT I am in receipt of your letter flated September 2, 1993 on the above subject, which was a response to my letter Ref. No. CRDB/PCF/10025A** of 30/0/1993. Mydiscussion with you of September 1,1993 informingyou o f the Board decision is also relevant. You have requested to be given opportunity to appear before the Board, I will accordingly forward your request to the Board of Directors. In the meantime you may continue with the debt-collect ion exerci.se that had been assigned to you.” There cannot be any bonafide doubts at all, that Mr. Rubambe as Managing Director, in seeking appointment for on behalf of the applicant to appear before the Board, not only new the reason why because of the meeting he had with the applicant at the Club, but also from the applicant's letter of 2/9/l993» -the purpose was "to be given opportunity to appear before the Board to defend myself against the allegations." It does categorically appear, that on the 13/1/199*+, the Board of Directors noted the contents of the applicant's letter, but never gave him opportunity of being heard. And the applicants letter

which the Board of Directors noted inter alia sought in (ii) thereof - "I should be given opportunity to appear "I should be given opportunity to appear before the Board to defend myself against the allegations above.” From the above, I cannot be wrong to sa y that the Board of Directors knew why the applicant wanted to appear before them "ind knew also the accusations the applicant wanted to cleanse himnelf of, and if they did not show any surprise upon noting the contents of the applicants letter and show anxiety to hear about the same from the applicant, anybody reasonably placed and reasonably directing himself on the matter would have no hurdles in believing that what Mr. Rubambe told the aoplicant at the club was impecably true, nothing but the truth. That means the Board of Directors already had a biased bend and retrenchment cinnot be the caiv'e of this attitues a? the Court though, i '1 any case if the very ^oard of directors are the ones who r n de allegations how can they employ him. It is that we softly land, on the circutnr.Lances, when a ''arty has a right to be heard. The Court was of the view, that the right to be heard only arises v/here there is an accusation or disciplinary action. The applicant's contend that the Court seriously erred in law. I think with reonect that cannot be the case, the area of or zones of the doctrine o r natural justice are not as narrow as the Court wanted to k limit them. It imposes a duty on the deciding authority and a beneficiary at the same time i.e. duty on the authority to comply with the same and a right to the victim to receive its protection. In this case the Board of Directors made an administrative affecting the applicant, when the.y had made negative remarks that obviously contributed to his loss of employment. The question is whether, their decision though administrative it was subject to the principles of natural justice. I seem inevitably sv/ayed to answer the same in the positive. It cannot be denied that over the years, natural justice has grown into a widely pervasive rule affecting l>rge ar-'an of administrative action, and nonce it i - ' - beinr; regarded as an inevitable and indispensable part of fair play in action, noless desirable in idminstrative action. I 'halL, 1 hope be allowed to refer to

the case of and Pi'JAHLt&RG (1972) 1 V / L t i in which the rule of fair play in action in paras 4 W7 and ^ + o was reiterabed as follows: m is fair to hold that subject to certain limitations natural justice is now a broading omnipresence although varying in its p l a y ....... after all, administrative power in a democratic set up is not allelic to fairness, in action and discretionary executive ju !;jce cannot digenerate into unilateral injustice, iior i there ground to be fraightened of delay, incmivinionce an expense, if natural justice gains access. For favrncs- itself is a flexible, pragmatic and r e s t i v e concept not as rigid rituali"tic or sophiscated abstraction. It is not a bull in a China Jhop nor a bee in ones bonnet. Its essence is good consciecc in a given situation, nothing more - but nothing le,js.‘ : This case is not vithout pragmatic influence, nor vrc v ; o allelic to the principles therein. 1 would therefore <,ol'>, t h ’ t anybody •• it.! i legal or administrative authority to affect the rights of another or to decide to the prejudice of a person whether such decision is quasi .judicial or 'dministrative fair play or principles of natural justice must be allied. In thi~ care, the Board of Directors having had negative allegations about the a -plicant which to all intents purposes would prejudice his job and the applicant having sought their audiance, ?ince they never took initiative to clean-e himself, and having despite giving him meeting annointniont, and 1v»ving him v/ai t in vain, only to be told they cannot meet him, transgressed the principle of 1'air nlay by giving him opportunity of being heard even if they vero to decide not to employ him.

In my view, the right to bo heard as an aspect of the principle of natural justice is a great humanising principle inventing lav? v/ith fairness and (air play to discaurage miscarriage of justice. It now easily dawns, that the Board of Directors transgressed this principle and I hereby 'or reason thereof declare the decision null and void, and the decision i.r therefore quashed. The question is therefore whether, this Court should order the reinstatement of the applicant. It is trite law, that writ jurisdiction goes hand in hand with discretion, whose exercise must not only be not arbitrary,vague and fanciful opininated, but it must be exercised judicially taking into account equitous balance of convinience. And a lesson taken from the case of the Judgment of Lord Green in ASSOCIATED PROVINCIAL PICTURE ilOlLffiG LTD. vs WEDHESBUttY CORPORATION (19^7) 2 ALL E.R. 680, shows how discretion has to be applied: "It is true the discretion must be exercised reasonably. What does it m e a n ? ....... It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion, must direct himself properly in law. He must call his own attention to the matter, which he is bount to consider. He must exclude from his consideration, matters which are irrelevant, to tho matter that he has to consider ......... Similarly, you may have something so absurd, that no sensible person

could ever dream, th^t fc h . i t it lay » . n thin p o ' - ' ci ’ c of a u t h o r i t y ......... . In 'jmoUier . ' ; o n e, it is taking into consideration extraneous natters. It is so unreasonable, that it Mi;: ' f c almost be described as be inn: done in bad faith. In fact, all t»ie?3e things .Largely fall under one head." Indeed, there i . v . no /'jain saying that, among other thin.''- : ; , 1 am called upon to exercise discretion, and tritely jud iciallv. Jut i! ' in favour of the applicant, for purposes of reinstatement, I have to ark for which poet, as after restructuring, the a pplicant’s post was abolished, _nd was not recommended for the one he applied for. '^ould it mean imposing another restructuring to accommodate him? And finally, though not least in importance, we are talking of went on six years a/ 50 , an elapse of time, which is not inconsiderable, when adjustment to the restructuring i^ already at rest, and in the interest working harmony, it would be imprudent to now order reinntatement. All in all, therefore, 1 would not be disposed to annly this Court's discretion in favour oT the applicant, though 1 would recommend monetary compensation. 1 shall not deal with the .ijsuo of bias which though obvious, would be superfluous. The application is therefore dismissed with costs. The application is partly allowed with coots. E . . i . i v iTi’ I J U l T.U 7 / 6/2000 Coram: Mshote, / j DH-HC In person - the Applicant Mr. Ngv/embe for the Respondents Ruling delivered in Chamber this 7th June, 2000 in the presence of - the Applicant arid Mr. Ngwembe for the itesnondonts.

c e r t i f y that t i ii r s ir? a true c o d ; / of the or in in a l .