By FAUSTINE KAPAMA-Judiciary
THE High Court, Dar es Salaam Main Registry, has
allowed former Director of Human Resources and Administration with the Medical
Stores Department (MSD), Johnston Mwakalitolo, to challenge the decision of the
President’s Office to endorse his dismissal from employment.
Judge Moses Mzuna ruled in favour of the ex-MSD boss,
the applicant, after granting his application for leave to apply for
prerogative orders of certiorari to quash the decision of the MSD Director
General, who terminated the employment and another order of mandamus to compel
the latter to reinstate him.
“I allow the application. Leave to file application
for certiorari and mandamus is granted. No order as to costs,” the judge said
in the ruling delivered recently against five respondents, including the MSD
Director General.
Other respondents in the matter were the Chairperson
of the Board of Trustees of Medical Stores Department; Secretary, Public
Service Commission; the Chief Secretary, President’s Office, State House and
the Attorney General (AG).
Judge Mzuna was convinced that the applicant has
sufficient interest in the matter because both parties were in consensus that
he was demoted then terminated by the MSD Director General.
According to him, the applicant was removed from his
position as the Administrative Manager and appealed before the Chairperson of
the Board of Trustees of Medical Stores and that he filed his application well
within time of six months as prescribed by law.
“More so that there is an arguable case (and) there is
no any other alternative available remedy. In this regard, I am convinced that
he has satisfied the required conditions for the grant of leave,” the judge
said.
The applicant was the employee of the Medical Stores
Department, as Administrative Officer since February 17, 2003 and later
promoted to the post of Administrative Manager in 2005.
Sometimes on diverse years between 2014, 2017 and 2018
he was promoted to the post of Acting Director General, Director of Human
Resources and Administration.
Then on July 8, 2019 he was demoted as Principal
Administrative Officer, Dar es Salaam Zone under the Zonal Manager allegedly
due to “deteriorating performance” in the administration unit.
His demotion was said to be attributed by lack of
minimum required qualifications for the post of Administrative Manager,
Master’s Degree, so to speak, which he did not possess.
The applicant appealed to the Chairperson of the MSD
Board of Trustees where the matter was then referred to a sub- committee of the
Board of Trustees. He was served with seven charges while in the process of
awaiting his appeal process.
After filing defence, he was summoned to attend a
disciplinary hearing before the Inquiry Committee. Then, was served with a
notice of termination without being availed with the results from Chairperson
of the Finance and Administration sub-committee of the Board of Trustees on his
demotion complaint.
The applicant then lodged his appeal to the
Chairperson of the Board of Trustees of Medical Stores Department which,
however, was frustrated not to be heard after the MSD Director General had
notified the former that the appeal lodged before him was out of time.
He then lodged his complaint to the Public Service Commission
on unfair demotion and unfair termination of his employment. The applicant was
advised to lodge his complaint afresh which he did. The outcome was that his
appeal was lodged out of time.
Aggrieved, he lodged an appeal to the Chief Secretary,
President’s Office, State House, who determined the appeal without considering
the relevant documents supporting the appeal and therefore committed the same
error that the appeal was preferred out of time.
The applicant felt aggrieved by the said decisions and
decided to approach the High Court, seeking for leave to apply for orders of
certiorari to move the court to quash the decision of the MSD Director General
of November 11, 2019 where it terminated his employment.
He alleged that such termination was reached without
establishing the reasons given for termination and without adhering to
substantive procedure for termination.
The applicant further wants to file the application for orders of mandamus, to compel the MSD Director General to reinstate him to his former employment position, without loss of entitlements from the date of unlawful termination.
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