F.A Mvungi vs Chuo Cha Taifa Cha Usafirishaji Dar Es Salaam (Misc. Civil Appeal No. 10 of 1997) [1999] TZHC 129 (21 September 1999)

r. •· IN 'rFD~ HIGH COURT OF TANZANIA AT DAR ES SALl-.AM -· . MISC •. CI'JIL APPEAL fro.· 10 OF 1997 ' F.A. MVUNGI •• APPL'LLANT versus CHUO CHA -TlHFA CEA TJSAFIRISBAJI . , DAR ES SAL/-1.AM C O C 0 P.ESPONDENT JUDGMENT OF THE COURT This is an appeal against the decision of the Industrial Court . . of Tanz.ania ci1on. Tendwa, V .c.) in a dispute between the a1 Jpellant, . 1 F .A.· Mvungi, and the respondent, Chuo cha. Usafirishaji also called the National Institute of Transport ( N. Io T.) brought before that court under section 4( 1A) (a) of Act No. 3 of 1990.. The Court dismissed the a_ppellant I s case in its entirety_. Dissatisfied with that decision, the apellant preferred this anpeal. The background of the matter is that the appellant was employed as a tutor in tho Mechanics Section of the Institute since 1st . , .. Februa....ry, 1978. In 1986, he was ap"'.')ointed manager of the workshop., £ The appellant further .. test.ifiecl that on 2nd December, 1994, the Principal of the Institute wrote a letter to the appellant directing the appellant that he (the appellant) would also have t.he duty of switching on the Institutss 1 generator on 3rd December, 1994,.· Having received the letter, the appellant, {ho lived orily some three •minutes' . . wal1c from where the generator was inst'alled, deliberately absented himself from duty on ·3rd December, )994. ·On 5th December, 1994, the appellant informed the Principal in writing·that he would not do-the jb of switching on the generator, which he ter1μed 11 kazi ya ziada 11 unless he was paid ':meal- allowance" for two years and two days. Giving a backound of th1;1,t .claim, the appeilant told the trial court that :;meal allowanceH used to be paid to people _who were not being ., paid "overtime allowances 11 up to 1992' when it was directed that Heads •••• /2 ..

i 2 • of Departments wou1¢--not· be .;:iaia · 1 'mea.l )aliowances»i ♦ : I:;-i May, 1994 a Circular dir0ctcd_thc Principal to pay Heads of Departments r,responsibility allowancG;' from July, 1992.. 3ut the name of the a:1poll8nt was not in tho list~ On 6th July, 1994, tho appdlant wrote a letter to the Principal complaining against the omission of his na.'Ile from th,2: list. On 29th August, 1994, the Principal replied and told the a-p1Jdlant ·thl'J.t the appellant was not in the list because he was not eligible for that allowance as he was a mere Head of a ·soctli:on and not Head of a Departmento On 6th September 1994, the appellant w-rote a lettr::-r ,demanding to be paid ;,·meal ii allowance". According to the appella11t, hr, received no reply to that letter. On 7th Decomber, 1994, th" appellant received a letter from the Principal by w1?-ich the appellant was interdicted on grounds of • 1 indiscipline. In the same lc,tt0r, ·• he was a.sked to furnish his defence to the accusation of insubordinatione The appelJ.nnt replied in writing. In his reply, the a:pp~llant confirmed that h.:: had n-dusE:d to obey the ordor'e He stated that he had refused bocause he was not being paid as it was 1 'kazi ya :ziada 1 '· when there was no "kn.zi ya z.iadat, in hi,s job descriptioni On 14th Earch, 1995, tho appellsnt appeared b0fore a sub- committee of the respondent's Desciplinary Board to enquire into the charges Tu.trel1:ed against the appellant. o That sub;Jcommi ttN:: Has chaii''ed by the Principal. Other memb,-ffs of thr:) sub-committee, according to the a:9poll2..nt, were the respondent's Director of Man-power Devolopmont and Ack!Jirtistration (D.M.D •. C..), the chairman of O'.r'I'U, and one M\vaya, the latter two being people roceiving low0r salaries tr.an tho app0llant • subsequently, on 5th April, 1994,. tho appellant r0ceived a letter of tGrmination from the- Board. But ho did not know when the Board sat to decide .his case, a.vid he was not invited to attend its meeting. According to that letter of h,rmination, the sub-committee had recom.-n<.mded that the: appellant b0 dismissed, but the Board had decided to terminate his employment t,.ri th the respondante He was dissatisffod with the decision of th0 Board and so he referred thG dispute to the Industrial Court of Tanzania. ---------..

3 , , The reepor.dcnt 1 s evidence we.s given by one Maulidi Seto be, who was the respond<:mt 9 s DcM.D.f',. He tostified that· the appellant was directed in writing to bt: switching on the generator in case of po,'ier failure,· but th,~ appellant rofu.sed to do so on the ground that he -ias not being paid "meal al1owance 1 ' o. So a letter was written to him to show cause why disciplinary action should not be taken against him.. Tho appellant is reply was the same: he said that he had refused to obey the order b,::cause he was not being :J::i.id 11 meal allowance".. He was th(:m interdicted, and his case i-ias r0forred to a Sub-Committee of the Disciplinary Board., Thit Sub--Committee, which was c9nstituted to match with the rank of the appellant, was composed of the Principal, two Dir~ctors of the -respondent; six Heads of Departm(mts, and two other members who were not ,on the respondent I s staff., The npp8llant was given the opportunity to defend himself before the Sub-Committee, an.cl hu did defond himself. In the end• the .Sub-Cammi ttec--3 recommended to the Boord that tho appellant be dismissed from his employment. The Board decided to torminate him .. On the question of "mcel allowance 11 , th(; witness said that the appclle.nt was informed in writing to follow the required procedure in pursuing his claims for "meal allowancen, but the ap-pellant refused to follow that procedure.; The wi tnes.s added that the appellant I s h ➔ rms of employment included doing extra work or •'ka.zi ya ziada;;, a.'1d a refusal to do it attracted disciplinary action. The witness added that when the Board was deliberating on the applicant's case 1 !all members of the Management, including the Principal, wero told to go out of th8 m2eting and they did go outo Ui th the consent of th,) Court, the parties 1 L,arned advocates filed written submissions. We have carefully considered those submissions. The first ground of a·p,:,eal is thP,t the l0arned Vice-chairman erred in holding that the rcs-;iondent had observud th::-: rules of natural justice in terminating the appellant from employment. In this respect, learned counsel fo.r the appellant submitbd that it was contrary to the rules of natural ju.sticc for the: Principal and the D.M.D.A. to sit in ju_dgment against the appellant in the Sub-Cammi ttee and in the Board when they were tho accu,sers, and tha.t the appellant was not hoard by the:: Bonrd before he was condemnedo o ca er, o./4 .. '

,4 For this submission, l:.oe,rned counsel for the appt::llant relied on the C~-ses of Nde&:m· Vo President. and Members, of pairc:mi Liqr. b,iconsin , ( 1957) E.A. 709, and p.§..o.2l.':.! .. .Q]:ic,irman Eu1d T<¥1ga To:'£1 _ 9_'?-£, (1961) E.A. 377, Learned counsGl for the .r.::,snondont submi tt,:;d tlHt the decision to terminate tho appollant wo..s that of the Board and not of the Sub- Com:ni ttee, ar;d membors in the Hanagemc:r.t vie:re r::xclude;d from the Board m8eting at which the o.ppellcuit:':s fate 1,,;as docidedJ Th3.t being the position, he submitt$d, tho .contention that tho accuser was also the judge in the same matter doe,s not. ari.so; amt thot the procedure followed by the Sub-Committee whereby it htard the appellant on the r.,;,ccusation 2.gainst him o.nd submitted its report to the Board, WD.S in accord with the princi:ples of no.turel ju,stice in. q1at tho aprellant was heard in defence of the accusation a,;;2.:i.nnt him. LDarnod counsel for the respond,mt r01ied; inter ;:ol_ta, on the ca,ses of -i];;aL..Y..!'.. !1.:Yl!B I)l:!..9.E~~u.12.s.n, ( 1973) LRT n 19? P.?_SE{'.J.::'.. . ..Y.!.. Cowf!:J..i:.e Di.s12_ 12.?X.~~~ .. !JEi..?.E., ( 1963) Eo:\ o 84 1 and .qhtr::'L~~onsJ:~~1?.ll',,:-C!...,J:.Y.~e,, ( 1982) 1 W.LoR. 1155. Amplifyinf.!'. 1 learned counsel for the respondent submitted that be:rring in mind thtd: tho appellant was informed in writing about the accusation against hirn 1 that the appellant defended himself before the sub-cor,1.mi ttee, 9 E'J.1.d th13.t he did not question the accuracy of the minutes of the Sub-Committee, the appellaJ1t was given the opuortuni ty to be h2ard w'1d was fully heard. Qn the e,•idcmce on :record, the facts are h1:1.rdly in dispute.. The only material question in dispute is whether the Principal and the fate was decided., From the uncoutroverted evidence of rfaulidi Se_tebe, we are satisfied that neither tho I'rincipcl nor the DoMoDoA. took pc--rt in tr...at Board liloeting .. _ It is, therefore, erroneous to claim that the appellant was the only k2y player excludsd from that meeting., The crucial question, in our view, is whether the appellant was condemned unheard contrary to the rules of natural justice, or whether other requirements of the rules of naturr.1 justice were flouted by the respondent to the detriment of the appellant's rights as a person accused. • • 0 ./5

5 : In our view, the requirements of the principles of natural justice were authoritatively stated by :!'lew1:zold,~~J~., in the case of Dins.1:12-!! . Dinsha.vr ( sul'ra) in which he stated, at page 88: ;;In essence, in a case such as this ·one, the :principles of no.turru justice rcquire·three things: first, ths.t the tribunal should act in good faith; secondly, that a party who may be affected by the enquiry should know the nature and pu.rport of the enquiry; and thirdly, that such a party sh·::ml~ hc-·we. 0n opportunity of presenting his point of vfow and of contreverting statements 1;jhich may be prejudiciai to him; l Whether J_n a pa-rti_; cular CD.Sr any of these principles is . infringed depends ~ on the facts and circumstc:.nces o:f that case.H The court quoted 1tJi th apporoval a statement of tord Jenkins in the 7........_ __ , __ ...,,. --·.,· ---- case of U.nt0'Ls.i_!Y.,_ __ o.f9eylon V. !.8.,r.1.133~1.g.2_, ( 1960) 1 AU E.R. 631 in which he said, at pe.g;e 637: HThe question vhether the :requirements of naturel justice h2.v0 been met by the pro- cedure adopted must depend to a great extent on the facts and circumstances of the case in point. 11 (' In the instant case, it; has not been alleg.bd that the Board acted I in bad fai tho On our part, we have found no dvidence of b9.d faith on the part of the Boe.rdo On the contrary 1 we think thc.t the Bo2.rd acted with utmost good faith as evidenced by the fact that it did not accept the recommendations of the sub-committee hook, line fu,d sinker Q On the evic.ence on record, we are satisfied that the sub- committee acted on behalf of th0 Board in enquii:ing into the ~~ accusation against the appellant O , :!ln doing so, the apnelJ.ant we,s informed in writing about the .natu:r,) of the accusation and the purport of the enquiryo The appellant, therefore, could not have been under 2-ny mis-apprehension as to the accusation and the purport of the enquiry., 0. 0 ./6

6 In turn, the appella..."lt submitted his defence in writing and, later, orally before the Sub,Committee for ·ab:,ut one hour His defence was very consistent: he adarnamtly, arid sometimes d!9fiantly, insisted. that he was justified in refusing to obey the F.rincipal is order 0 The Sub- Committee then submitted its minutes and recommendations to its Principal, that is, the Boardo The Board in turn made its decision. It was stated by the resr,,ontj.ent.' s wHness that the procedure . ::. \ adopted h~:re w3;s.the standard. procedure of the resnondent in disci- • . ,,1· plinary malt,ers~ Like the learned Vice - Chairman, we are of the settled vi-ew that the Sub - Committee WB.S a duly constituted one, and that the procedure adopted was in no way irregular.~ We are, accordingly sa!isf:i.e~, :that the appellant was duly informed of \he accusation against him j_n w:ri ting, tht he wa./3 gi'ye:1 f~11 opportui ty of being heardt that he was fully heard both 6rally ad in i,1riting, and that the decisi9n to· terminate him 1 :ms not rtia.de by his acouse:t's but by a competent body o Quite cleat'ly; therfore, the fac.s in this case μre clea.rly distinguishable from the f~~ts in Ndengw-b. 1 s case ( supra).. ...,....,.. ____ ... ,,,...-..., .. In that case, unlike in the instant ce.set two of the judges in the tribunal hc"1d given evidence a For these reasonsj v:c c=J..re of the fir\n view that ncine of the three requi:r.ements of the princi;,)les of n.s.tural justice were infringed by the Board cin the facts a::id circumstances of this case. \ve, there fore, see no rneri t in the first groimcl of m;,peal o The second ground of aT;peal is that the learned V:i.ce ;;,. Cb.airman erred in holding that the 2:ppeHant had corr,mi tted a disc:l.1linary misconduct., In general, in cases of judici8J. review, the court looks at the :procedure follm·Jed by the trj_a1 but does not US1.tally go into the merits of the tribunal 1 s decision unless such decision is so patentiy unri?asonable e,~ to. lead to the conclusion that it was base;i ·on wrong 'Principles,. But be that as it may, in the insta:."lt. case, the appellan:t hod all along conceded, indeed arrogantly, that he refused to obey the orrler because he had not been paid ;:meal allowance;; Q The evidence is a-bundant to the effect that although he was·politely told to follm-.r th," procedure in claiming "me2.l allowance:;, the appellant arrogantly refused to follow the procedure. There is also credible evidence of the D.1·,1 .DJ.. to. the effect that by the terms of his • 0 ./7

7 employment, the appellant was duty bound to do extra work or 11 kazi ya ziada 11 , and that any such person who refuses to obey such orders exposes himself to disciplinary actiono It was never the respondent's case that he received no orders. He simply disobeyed an order of his employer, which order, in our view, was a lawful ordere As it was held in the case of Konig V..:.._E<:;._rJ., ( 1968) E.A. 233, a master is entitled to dismiss his servant summarily for wilful disobedience of his masters lawful orders which it is his duty to obey. We respectfully agree. For these reasons, we see no merit in this appeal. The same is hereby dismissed with costso Delivered before parties. B.D. Chipeta JUDGE 21/9/1999 A.G. Bubeshi JTIDGE L.B." Kalegeya ·,Jl1vGE .,.. .. ! .:,J: t' '··.j, ,: _;