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Court quashes Oluoch application to challenge President’s decision

THE High Court, Main Registry, has confirmed the decision of the President of the United Republic of Tanzania, who endorsed the dismissal from employment, services former Deputy Secretary General of Teacher Union Mwl Ezekiah Oluoch, for absenteeism.

Judge Moses Mzuna ruled against Mwl Olouch, the applicant, after dismissing his application for judicial review for orders of certiorari to quash and set aside the decision of the President of United Republic of Tanzania of 6th October, 2022.

”I find no merit in this application for review. This court will therefore neither issue certiorari nor set aside the decision of the President which I find was legal. The applicant has failed to meet the required test for judicial review,” the judge ruled.

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During hearing of the application, the applicant had explained that the decision of the President was tainted with illegality as it violated the law and his constitutional rights to freedom of association and the Inquiry Committee Report did not comply with the law.

He contended that the President’s decision was illegal as the appellate authority failed to prove the charges, the disciplinary action against him did not follow the law and he was immune from being dismissed from the Public service for participating in legally recognized activities of CWT.

In his ruling delivered in Dar es Salaam recently, Judge Mzuna ruled that the President’s decision was in accordance with the law, the limitation that the abscondment for five days from work without the employer’s permission served a legitimate aim of maintaining ethical standards of employees.

Moreover, said, the applicant was given a chance to respond to the charge, he was reinstated with the option to either remain to serve as the Secretary General of Chama Cha Walimu or returning to his employer as the public servant.

“That option was abused, instead, he slept on his rights and chose not do so. He conceded to have been absent from work for four consecutive days without notifying the employer contrary to the Employment and Labour Relations Act. He cannot complain at this late hour, “the judge said.

The applicant had alleged that the Inquiry Committee acted ultra vires that it had no jurisdiction over the matter. According to him, he was not employed by the Local government (he being neither a Primary School teacher, nor a Secondary school teacher), but was under the Public Service.

However, the judge said, section 2 of the Teachers Service Commission Act, Act No. 25 of 2015 defines the word teacher to mean person registered as a teacher and who pursued a teaching training course in a registered teachers college or university.

He was convinced that since the Act under section 2 applies to Primary and Secondary school teachers employed in the public service within Tanzania mainland, the Teachers Service Commission acted within the power that has the power to determine appeals from the decisions from the disciplinary authorities.

The judge noted another argument by the applicant that in 2009 all Secondary school Teachers were seconded from TAMISEMI to the Director of Councils except him who was the Deputy Secretary General CWT and was still on leave without pay.

However, he said, such applicants argument and that his service particulars were not transferred cannot negate a fact that he was a teacher an employee of the Local Government that is Ilala Municipality.

“He falls under the definition of a teacher under section 2 of the Act and therefore covered under the governing scheme for teachers. Therefore, the Permanent Secretary, Public Service Commission acted within his mandate. I am of the settled view that there is no illegality on

President’s decision,” he said.

There was another argument by Mr Oluochi that he was denied right to be heard, to appear before the President. The judge ruled on such issue that the matter was before the President for second appeal which does not include collection of new evidence, his presence was not necessary.

Judge Mzuna pointed out that the applicant’s appeal grounds were submitted and considered and the decision of the President was based on inquiry report whose members are appointed in accordance with Regulation No. 17 of the Teachers Service Regulation.

To conclude, the judge said that the applicant assumed a misconception that being elected as a Deputy Secretary General presupposes that he was not under the instructions of his employer.

“Therefore, failing to abide to the instructions like choosing either to opt for that job or return to his employer and then failing to report without good cause must be sanctioned. The termination was the ultimate result of  absenting from work and insubordination,” he said.

The applicant,  Ezekiel Olouch was employed as a Teacher. At one time he successfully vied for and was duly elected for the post of the Deputy General Secretary of the Teachers’

Union “Chama Cha Walimu (CWT)” The post was for five years term.

Since he was a Public Servant he sought for secondment. The applicant was granted three years term. Upon its expiry while his term in office as Deputy Secretary General was still subsisting, he sought for extension which however was refused by his employer, the Public Service Commission.

The applicant was directed to report to his erstwhile employer of which he never did for good five days. This was followed by disciplinary proceedings. He was terminated and then his name removed from the payroll.