By FAUSTINE KAPAMA-Judiciary
THE High Court, Dar es Salaam Main Registry, has opened
its doors, allowing former Acting Director General with the Medical Stores
Department (MSD), Cosmas Mwaifwani, to challenge the termination of his employment
services.
Judge Moses Mzuna ruled in favour of ex-MSD boss, the
applicant, after granting his application for leave to file judicial review of
certiorari, mandamus and prohibition against the Minister
for Health, Community Development, the Elderly and Children, the MSD Board
of Trustees and Attorney General.
“I am convinced that the application for leave is
merited as discerned from his affidavit and statement. Application for leave is
hereby granted as prayed for with no order as to costs,” the judge ruled.
He noted that it has been emphasized in numerous cases
that at leave stage the court must be satisfied on some factors, notably the
existence of any arguable case; whether the applicant is within the six months
limitation period and on the existence of sufficient interest in the matter.
“Reading the pleaded facts, it is clear that the
applicant has demonstrated that he has interest in the matter as was affected,
there is also an arguable case and therefore grounds for seeking judicial
review exists,” the judge said.
Judge Mzuna further pointed out that the applicant has
acted promptly, that is, within the set time limit of six months and he has
shown that there is no alternative remedy which exist.
There was argument submitted on absence of an arguable
case for judicial review as before the Enquiry Committee the applicant was
given a fair hearing or that he opted to take wrong route in advancing his
appeal.
In his ruling delivered recently, however, the judge
pointed out that such arguments were matters which are contentious. “They
should be resolved during hearing of the main application for judicial review,”
he said.
Facts show that the applicant was employed by MSD
since 2003 as a Customer Service Manager. In 2004 he was promoted to the post of
Director of Customer Service and Sales and later as Director of customer
Services and Zonal Operations. From 2012 to 2015 he was appointed as Acting
Director General.
His termination on July 08, 2016 was after his
suspension. It came about after there was an accusation of misappropriation of
public fund. The applicant appeared before the enquiry committee for
disciplinary charges which was also along with a criminal charge preferred
against him.
The disciplinary committee found him guilty. The
applicant then preferred an appeal which was drugged for so long as the
appellate body was a bit confusing. The appeal before the Public Service
Commission was unsuccessful just like his further appeal before the President.
It was dismissed for same reasons that the proper
disciplinary appellate authority was the Minister for Health, Community
Development, the Elderly and Children, not otherwise. The applicant decided to
take the matter to court for further determination.
He applied for leave to file an application for an
order of certiorari to quash the decision by the ministry dated October 10,
2016 which confirmed the MSD Board of Trustees’ termination of his employment.
The applicant also sought to file an application for
an order of Mandamus to compel his employer to reinstate him to his employment
with full salaries paid arrears from the date of disengagement.
He further applied for leave to file an application
for an order of prohibition to issue against the ministry and MSD Board of
Trustees from in any way proceeding against him other than as by law provided.
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