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, 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 emphasised in numerous cases that at leave stage, the court must be satisfied with some factors, notably the existence of any arguable case; whether the applicant is within the six month-limitation period and with 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 exist,” 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 an 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.
