CRDB (1996) Limited vs Minister for Labour & Youth Development (Misc. Civil Application 13 of 1997) [1999] TZHC 33 (4 March 1999)

IN THE H I G H C O U R T OF T A N Z A N I A a t DAT? ES S A L A A M MISC. C I V I L A P P L I C A T I O N N O . 13 OF 1997 C R D B (1996) L I M I T E D ..... A P P L I C A N T V E R S U S THE M I N I S T E R F O R L A B O U R & Y O U T H D E V E L O P M E N T .................. R E S P O N D E N T J U D G E M E N T K A LBGEYA, J : The Applicant, CRDB (1996) Ltd, prays to this c o u r t for orders of Certiorari and Mandamus - that the Respondent s decision delivered on 3/3/97 in respect of Martin R u t a h a k a n a be removed into court and quashed. Facts which stand out undisputed are that One Martin Rutahakana who worked with the Applicant and who was at the same time an OTTU branch chairman and stationed at the head office Dai es Salaam, was, on 9/1/95 promoted and transferred to Tabora Zonal Office as a Zonal Human Resources officer. On 27/1/95 the said Rutahakana, in writing refused the transfer. The Applicant proceeded to institute disciplinary proceedings against him. on 28/9/95 he was summarily dismissed for insubordination. Rutahakana challenged the dismissal before the Conciliation Board. On 13/11/96 the Board cleared him and ordered for his reinstatement. On 28/11/96 the Applicant challenged that decision by filing reference to the Respondent. On 3/3/97 the

Respondent upheld the Board's decision and ordered for M , r . i n ' B r e i n s t a t e m e n t . Applicant still aggrieved tried this avenue by applying for prerogative orders. Mr Mwakipesile advocated for the Applicant while Mr songoro, State Attorney, appeared for the Respondent. Parties n.ade their submissions in writing. The Respondent were late in filing the.r submission but the court did grant the required leave. Mr Mwakipesile vigorously argued that in upholding the B o a r d ’ s decision the Respondent did not act reasonably and in the interest of justice but rather arbitralily; that he did not correctly perceive the relevant laws, Rules and Regulations hence an apparent error of law. He insisted that their argument that the Board was not properly constituted, in that one Mrs Mpa s i s i n g o who in her capacity as a Deputy labour Officer and who had persistently supported and encouraged Rutahakana not to go on transfer was the one who was the chairperson to the Board, was ignored. The Applicant further submitted, "The Applicant Bank had never ever had any Regulation under which can employee of the Bank could refuse a transfer just like that." Clarifying on the alleged breach, Applicant referred to "Kanuni za U T U M I S H I ZA B e n k i " ( K a n u n i 2.2.4) w h i c h state, "1 An y employee while in the Bank's service shall serve ‘ the bank at such places as the bank may from time to time direct. The bank

3 r e s e r v e s the right to t r a n s f e r any e m p l o y e e f r o m one s t a t i o n to a n o t h e r i f the e x i g e n c i e s of service so demands 2. A n y e m p l o y e e w h o r e f u s e s to c o m p l y w i t h an o r d e r r e g a r d i n g t r a n s f e r w ill be liable to d i s c i p l i n a r y a c t i o n w h i c h may include s u m m a r y d i s m i s s a l ” . In r e s p o n s e , M r Songoro, s u b m i t t e d that the A p p l i c a n t a c t s as if it is n o t a w a r e of the B A N K ' S P E R S O N N E L S E R V I C E MANUAt, (Staff R e g u l a t i o n s } w h e r e in c l a u s e 2 . 2 . 4 . 3 it w a s (then, p r o v i d e d , ••Employees w h o are O T T U Branch chairman and S e c r e t a r y s h a l l not be t r a n s f e r r e d without the a p p r o v a l of the A p p o i n t i n g Authority, wh o will in t u r n e f f e c t it after clearance w i t h the n e a r e s t D i s t r i c t O T T U organ". H e i n s i s t e d that the A p p l i c a n t m i s i n t e r p r e t e d the R e s p o n d e n t ' s d ecision. He e x p l a i n e d that the M i n i s t e r ( R e s p o n d e n t ) did not r e a c h the d e c i s i o n o n a s s u m p t i o n that R u t a h a K a n a c o u l d r e f u s e a t r a n s f e r but that he d e c i d e d on the basis that, "1. The said Martin Rutahakana was OTTU Branch chairman in the Applicant Company 2. That in the Applicant Company there was internal mandatory procedures to be followed

4 in order to effect the transfer of Martin Rutahakana 3. That the Applicant Company did not follow this internal procedure which was laid down by the company itself 4. Therefore the transfer of the employee wap not properly made and punishment imposed by the applicant was based on wrong assumption that the transfer was properly effected". The decision of the Minister intended to be assailed runs as u n d e r , "2. Baada ya kufikiria rufani iliyoletwa kwangu kuhusu uamuzi wa baraza la usuluhishi D 1Salaam katika shauri la Mfanyakazi aliyetajwa hapo juu nimeamua kama ifuatavyo - KWA MUJIBU WA KIFUNGU CHA 26(2) CHA SHERTA Y A USALAMA KAZINI 1964 NAUTHIBITISHA UAMUZI WA BARAZA LA USULUHISHI KUWA MFANYAKAZI ARUDISHWE KAZINI KWA SABABU UONGOZI WA CRDB ULIKIUKA UTARATIBU ULIOJIWEKEA WENYEWE KWA KUMHAMISHA MFANYAKAZI AMBAYE NI KIONGOZI WA TAWI LA CHAMA CHA WAFANYAKAZI BILA KUPATA IDHINI YA OFISI YA CHAMA CHA WAFANYAKAZI W I L A Y A " . From the records availed to this court and whose correctness

5 was conceded to by parties; it is undisputed that the A p p l i c a n t ’ s staff regulations (then) prescribed that an employee o f (he Applicant, holding the position of OTTU chairman or Secretary, could not be transferred without, first, the approval of Applicants "Appointing Authority", and secondly, without clearance with the nearest District OTTU Organ. Martin Rutahakana was the OTTU Branch chairman at the Applicant ' s h e a r ] office. He was transferred from Dar es Salaam to Tabora. N o clearance was sought and secured from the District OTTU Organ. It is clear therefore that the transfer was not proper and t h i s is the gist of the Boards' and Respondents' decision. That said however, after due analysis I have found that both the Board and Minister (Respondent) dealt and concluded on only the i s s u e of whether the transfer of Rutahakana was properly made. B u t , t h e r e was yet another issue of whether Rutahakana was lawfully e n t i i i P d to refuse the transfer; and whether this was an act of insubordination which could lawfully earn him a dismissal Here, we should be careful. We should carefully put a dermacation between what the applicant could do in order t o h a v e its act categorised as a proper transfer of Rutahakana, and, Rutahakana's acts which could be termed insubordination. Treading on Respondent's submissions and the decision quoted above one is left with no doubt that both the Board and t h e Minister fully dealt with issue one but did not d e l i b e r a t e on t h e second issue save concluding that the dismissal was unlawful,

6 Deliberating on this issue also was very necessary because clause 2.2.4.3 of the staff Regulations oh which the Respondent seems to £>eg his decision deals only with transfers and does not deal with insubordination. It does not say that any employee who is transferred without the two conditions prescribed in the said clause being met is entitled to refuse the transfer. It is clear therefore that both the Board and the Minister erred in not deliberating on one of the issues before thfiin, and arriving at a conclusion by relying on an irrelevant clause. Here I should not be misunderstood - I am not saying that they should not have arrived at the decision they did but what T am saying is that in arriving at that conclusion they should have properly deliberated on the issue before them but they did not. The above apart, the Applicant submitted unchallenged!y t h at the chairperson of the Conciliation Board was the very D e p u t y Labour Officer who deliberated on the matter before it was sent to the Board and that she was the one encouraging Rutahakana not to go on transfer and that therefore she was biased. The learned State Attorney did not submit on this. The rule against bias can not go with this kind of situation. Having been a labour officer who deliberated o n t h e matter before it went to the Board, and more specifically, h a v i n g been the one encouraging Rutahakana not, to go on transfer (we should take it to be true for it was not challenged) sitting as a chairperson of a Board which has to deliberate that very issue on

appeal cannot fail to attract suspicion if not direct presumption of bias. When considering the existence of such breach the m m i has to look for real likelihood of bias. As was persuasively observed in R V Gough (1993) A.C. 646 at page 670, "Having ascertained the relevant, circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by h i m " . In the circumstances of this case there is no way Mrs M p a s i s i n g o could escape from bias - in any case, justice should n ot o n l y be done but it must be shown to be done. Normal mind c a n n o t b e l i e v e that she acted without bias even if she did. Mr Songoro for the Respondent submitted that the (-out t cannot inquire how the Minister arrived at a conclusion in making the decision but that it can consider whether or not the procedure in the statute has been followed or whether the ruin-, of natural justice were observed in determining whether the decision is valid, and cited (CA) DR Kallage versus E s s o Tanzania Ltd, civil Appeal No.10 of 1982 (DSM Registry) and Mahona Vs

University of Dar es Salaam (1981) TLR 55, and urged this court to conclude that the decision is not tainted in anyway. While cohceding to the principles of law stated, I think, I have sufficiently demonstrated, contrary to what the learned State Attorney would wish us to believe, that the Board breached the rule against bias, and that both the Board and the Minister failed to deliberate on the relevant issue before then. These defects cannot allow the decision to stand. The Applicant urged this court to quash the Respondent's decision and to order him to hear and determine the reference before him denovo. In the circumstances of this case, as T have shown, the defects commenced at the Conciliation Board level so that's where rectification should start. In conclusion therefore the decisions, both of the Minister/Respondent and of the Conciliation Board, are quashed and set aside. Hearing denovo to be made before a properly Constituted Board. L.B. Kalegeya J U D G E .