B Msumi, J: These proceedings have been initiated under the provisions of s 27 of Security of Employment Act, cap 574 and Order XXI Rule 20 of Civil Procedure Code, 1966. The applicant is seeking the assistance of this court in executing the decision of the Minister of Labour who, in C agreement with the decision of the Reconciliation Board ordered for the reinstatement of applicant in his position as an employee of the respondent. Prior to the decision of the Minister, respondent had invoked a disciplinary action against the appellant by dismissing him summarily. In these proceedings respondent does not challenge the Minister's decision which according to law is final D and conclusive. However, instead of complying with it by reinstating the applicant, respondent purported to terminate his service on payment of statutory compensation and twelve months salary E in accordance with s 40A(5) of Security of Employment Act as amended by Act 1 of 1975. It has been submitted by the learned counsel for the respondent that this provision gives an employer the option to terminate the service of his employee instead of reinstating him provided he pays him the stipulated compensation.
F The relevant provisions in this case are s 27 and 40A(5) of the Security of Employment Act, henceforth referred as the Act. Both sections are hereby fully quoted for ease of reference.
'27(1) The decision of the Minister on a reference to him under s 26, and subject to any decision on a reference to G the Minister therefrom the decision of a Board on a reference to it under this Part -
(a) shall be final and conclusive and
(b) shall be binding on the parties to the reference and the relationship between the parties in the consequence H of the matters in respect of which the reference was made shall be determined accordingly, and
(c) may be enforced in any court of competent jurisdiction as if it were a decree.
(2) In addition to its powers to execute any decision which requires the refund of any wages deducted or, expressly or by implication, the payment of any sum to any employee where a dismissal is ordered to take effect as the I termination of employment, a court in which it is
sought to enforce a decision of the Minister or a Board may make and enforce such orders as are necessary for the A specific performance of any decision for the re-engagement or reinstatement of any employee (notwithstanding that the court would not have power apart from this subsection to make or enforce such orders) and may award damages for the failure of the employer to carry out any such decision as if he had dismissed the employee B concerned wrongly (and if Part IV of this Act is in operation in relation to the employee concerned, such damages shall include the statutory compensation provided for in that Part.)'
Section 40A(5) provides -
`40A(5) Where a reinstatement or re-engagement has been ordered under this section and the employer refuses or fails to comply with the order - C
(a) in the case of an order made by a Board against which no reference has been made to the Minister within twenty eight days of the order being made, or
(b) in the case of an order made by the Minister on a farther reference to him, within fourteen days of the order D being made by the Minister,
the employer shall be liable to pay the employee compensation of an amount equal to aggregate of -
(i) the statutory compensation computed in accordance with s 35, and E
(ii) a sum equal to twelve months wages to which the employee was entitled immediately before the termination of his employment or, as the case may be, his dismissal.
and such compensation shall be recoverable in the same manner as statutory compensation the payment of which has been ordered under s 39.' F
As noted earlier, respondent refused to reinstate the applicant and instead he purported to terminate him on payment of statutory compensation and twelve months salary. The learned counsel for respondent is of the view that an employer can legitimately ignore the order of the Minister or Board G for reinstatement or re-engagement provided he pays the aggrieved employee statutory compensation plus twelve months salary. With respect I can find no legal backing for such argument. My understanding of s 27 and s 40A(5) of the Act is that where the Minister or Board has H ordered for reinstatement or re-engagement the complainant employee may opt for one of the two alternatives. He may either apply to the court under s 27(1) of the Act to have the order executed as if it was a decree, or he can claim for payment of statutory compensation and twelve months salary as I provided under s 40A(5) of the Act. Either
A of these alternatives can only be initiated at the instance of the aggrieved employee and not the offending employer. An employer who refuses to reinstate his employee in contravention of the decision of the Minister or Board does so at the risk of having such decision executed against him by way of specific performance with or without payment of damages, or on the application of the aggrieved employee, he may be ordered to pay the employee statutory compensation plus twelve B months salary. An employer cannot, at his own initiative, choose to pay his aggrieved employee statutory compensation and twelve months salary as an alternative to comply with the Minister's or C Board's decision of reinstatement.
Essentially what the applicant is asking the court to do is to order specific performance of the Minister's decision. He is also claiming damages arising from the respondent's failure to comply with D the decision of the Minister. As far as reinstatement is concerned, the decision is quite clear, it says:
`Kwamba kufukuzwa kwake kazini mfanyakazi siyo sawa na halali. Hivvo arudishwe kazini kwake kama kawaida.'
E This is the decision which the applicant wants to execute by way of specific performance. However, in addition to making an order for specific performance, the court is empowered under s 27(2) of the Act to award damages. However, apart from his claim for various entitlements applicant has not claim and prove any damage. He is mainly claiming for payment of arrears of wages.
F In conclusion the application for the execution of the Minister's decision is hereby upheld. Respondent is ordered to reinstate the applicant with effect from 28 October 1983 the day when the Minister gave his decision. As a necessary measure for enforcing this decision it is further ordered G that respondent should reinstate the applicant within thirty days from the delivery of this ruling. For the avoidance of doubt it is specifically stated that applicant is entitled to be paid his arrears of salary H from 28 October 1983 to the time of his reinstatement. No order for costs is made.
A
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