Mkude J: This is an application for orders of certiorari to remove into this court and F quash the decision of the Minister for Labour dated 13 November 1991 and mandamus to enforce the decision of reinstatement made by the Conciliation Board on 22 July 1991 as a decree of the court. Shaban Nassoro and Douglas Utonga, the applicants, were employed by Tanzania Portland Cement Company Limited, the first respondent herein, G as security officers. On 6 June 1990 the employer served them with proposal form No 1 imposing on them summary dismissal, alleging breach of para (h) of the Disciplinary Code under the Security of Employment Act 1964. The charge arose out of `irregularities in respect of cement loaded on 25 May 1990 in vehicle reg No 86985/84'. H
On 5 September 1990 the applicants were served with letters of summary dismissal from their employer without the required form No 10. The applicants were aggrieved by the disciplinary penalty imposed on them and appealed to the Conciliation Board. The Board heard the parties and by its decision dated 22 July 1991 ordered the I reinstatement of the applicants by the first respondent
herein. The first respondent, as employer, was aggrieved by the decision of the A Conciliation Board and appealed to the Minister for Labour. The decision of the Conciliation Board was reversed by the Minister and his decision dated 13 November 1991 and so the services of the applicants were now to be terminated instead of reinstatement ordered by the Conciliation Board. It is this decision which is being Bchallenged by the applicants mainly on the ground that the reference to the Minister was improper since the employer had not filled up form No 10 as required by law. The argument is that the purported appeal to the Minister was not properly before him and so C the Minister acted without jurisdiction when he reversed the decision of the Conciliation Board. Hence this application for orders of certiorari and mandamus.
Mr Mrugaruga, a senior labour officer who represented the second respondent filed a counter-affidavit in which he admits that the employer had not filled up form 10. For this D reason I fail to understand him when he says in his submissions that the Minister had followed the laid down procedure and was fair in reaching his decision.
It seems to me that the Minister cannot be said to have followed the laid down procedure E when he sits and determines an appeal which is not properly before him. The appeal to the Minister was referred to him under the provisions of s 26(1) of the Security of Employment Act, which provides as follows:
`26(1) Where-- F
(a) the summary dismissal or proposed summary dismissal of an employee is confirmed by a Board and, subsequent to such confirmation, the Committee, or, in a case to which the proviso to subsection (1) of section 21 or section 22 applies, the local representative of the G Union, informs the Board that it or he supports the employee, the employee; or
(b) the summary dismissed or proposed summary dismissal of an employee is not confirmed by a Board, the employer--
may, within fourteen days after receiving notice of the decision of the Board refer the same to the Minister;
H Provided that an employer may not refer a decision to the Minister in any case in which he has not complied with the appropriate procedures specified in head (b) of this Part.'
The applicant's complaint on the employer's failure to fill up form No 10 is based on the I provisions of s 51 of the Security of Employment Act which provides as follows:
`51. The Minister may prescribe forms to be used for the purpose of this Act and any forms prescribed A shall be used, with such variations as the circumstances require, for the matters and in the cases for which they are prescribed.'
The plain meaning of this provision is that if there is a form prescribed by the Minister B relating to any relevant matter then that form must be used. It is mandatory. The use of form No 10 is prescribed under the provisions of reg 4 of the Security Employment (Disciplinary Proceedings) Regulations, 1965 as follows: C
`4. A written note of the imposition of a disciplinary penalty in the form set out in the Third Schedule shall be handed to the employee if he is available: Provided that, save in the case of summary dismissal, where the employer hands to the employee a copy of a report to a labour officer in the form D 1A stating that a disciplinary penalty has been imposed, no other note of such imposition shall be required.'
In the present case the employer purported to dismiss the applicants summarily and there is no suggestion that the applicants were not available. It follows that the mandatory provisions of reg 4 had to be complied with by the employer purported to E dismiss the applicants summarily and there is no suggestion that the applicants were not available. It follows that the mandatory provisions of reg 4 had to be complied with by the employer by using form No 10 contained in the third schedule to the regulations. As it is admitted by Mr Mrugaruga that the employer did not comply with this requirement, it F follows that the `appropriate procedures' specified in head (b) (which deals with Imposition of Disciplinary Penalties by Employers) have not been complied with by the employer, Tanzania Portland Cement Company Limited. G
Accordingly I hold that the employer had lost his right to refer the decision of the Conciliation Board to the Minister under the proviso to s 26(1) of the Security of Employment Act. It follows that the appeal by the employer, the first respondent herein, was not properly before the Minister and so the Minister lacked jurisdiction when he H reversed the decision of the Conciliation Board. For that reason the orders of certiorari and mandamus will be issued as prayed and I hereby declare that the Minister's decision in this matter dated 13 November 1991 is null and void. Accordingly the decision of the Conciliation Board dated 22 July 1991 is hereby restored and I order that it be enforced according to law. I
The applicants will have their costs for this application.
A
