Alex Tom Mwansa and Ors v Zambia Railways Limited (Appeal No. 61/2005) [2006] ZMSC 72 (7 June 2006)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 61/2005 HOLDEN AT LUSAKA/NDOLA (Civil Jurisdiction) BETWEEN: ALEX TOM MWANSA AND FIVE OTHERS Appellant AND ZAMBIA RAILWAYS LIMITED Respondent Coram: Chirwa, Chibesakunda and Chitengi JJS. on 8th June, 2005 and 7 th June, 2006. For the Appellant : Mr. D. Mulenga of Messrs Derrick Mulenga & Company For the Respondent: Mr. L. M. Matibini of Messrs L. M. Matibini & Company JUDGMENT Chitengi, JS, delivered the judgment of the court. Case referred to: - 1. Zambia National Provident Fund V Yeleweniya Mbiniwa Chirwa [1986] ZR 70. In this judgment, we shall refer to the Appellants as the Plaintiffs and the Respondent as the Defendant, which is what they were in the court below. The facts of this case are that at the material time the Plaintiffs were employees of the Defendant. The first Plaintiff, Alex Tom Mwansa was a Locomotive Driver, while the second f' - J2 - Plaintiff, Joseph Tembo, and the third Plaintiff, Taulo Mwansa were Police Constables and the fourth Plaintiff, Richard Mukapile, and fifth Plaintiff, Hanis Simfukwe were Locomotive Driver and Police Constable respectively. The sixth Plaintiff Richard Chileshe was a Police Constable. In January, 2000 the first Plaintiff was suspended from work on allegations of theft of diesel from his employer. On 20th April, 2000 the first Plaintiff was served with a charge sheet () containing five counts. According to the first Plaintiff, the investigations took more than the four days stipulated in Clause 1. 7(a) of the Defendants' Disciplinary Code and Procedure. He said only in complex cases does Clause l.7(a) allow for a slightly longer time. He gave his defence to the five charges of theft of fuels. The first Plaintiffs explanation for the loss of 500 litres of fuel was that consumption depended on the tonnage hauled. He then complained about the none charging of some other drivers whose locomotive engines also consumed more fuel, a matter which is not relevant to this appeal. He said that the train he was driving at the material time carried 16.6 tons of copper and concentrates and that on arrival in Ndola the train did shunting using the same engine. The Case Hearing Committee found the allegations of theft not proved against the first Plaintiff, but found him guilty of negligence or failure to account for 500 litres of diesel and terminated his services. On appeal, the Appeals Committee - J3 - agreed with the finding of the Case Hearing Committee that the first Plaintiff failed to account for 500 litres of diesel but said the punishment of termination was erroneous and instead dismissed the first Plaintiff. When the first Plaintiff was cross-examined he said that he declared the fuel level when he left Kitwe but he did not declare the fuel level when he reached Ndola because the system of declaring fuel on arrival did not exist. He said that he did not know what the engine consumed on the day in question but the charge sheet stated that it consumed 1,000 litres. The second Plaintiff was suspended on 15th March 2005 for theft relating to the same diesel and served with a charge sheet on the same day. The second Plaintiffs duty as Police Constable was to escort the train to ensure security of the property. The second Plaintiff was charged with failing to account for 500 litres of fuel and negligence in contravention of the Defendant's Disciplinary Code and Procedure. On 12th April, the second Plaintiff was served with a second charge sheet charging him with theft by servant and negligence for failing to prevent the theft of 500 litres of diesel from the engine. On 27th December, 2000 the second Plaintiff was dismissed from his job. .. - J4- The second Plaintiff's explanation to the allegations against him was that he was on duty on the train with Constable Taula Mwanza, third Plaintiff and one S. Chibwe and that he carried out his duties diligently and nothing wrong happened. He said that later on 20th May, 2000 he attended a disciplinary hearing at which his services were terminated for negligence. But later he received a letter of dismissal. His appeal to the Appeals Committee was unsuccessful. The third Plaintiff who was with him on duty was similarly dismissed for incompetence and negligence. The fourth Plaintiff like the first Plaintiff was suspended in January 2000 in connection with the missing fuel. On 20th April, 2000 he was served with a charge sheet containing five counts. He was charged together with the sixth Plaintiff and one train guard called Norman Katete. He said his suspension was in violation of Clause 1. 7(a) of the Defendants Disciplinary Code and Procedure which provides that the employee must be charged within 48 hours of the supervisor becoming aware of the alleged offence. He said that at hearing, some of the charges were dropped but he was found guilty on two of the five charges against him. The two charges on which he was found guilty related to failure to account for fuel. The fifth Plaintiff with who he had worked at the material time was charged with one count of failing to account for fuel. The sixth - JS - Plaintiff was charged with theft by servant and negligence involving 500 litres. The fourth Plaintiff's explanation as to the missing diesel was that he was given extra six hour duty at Kapiri Mposhi and he was made to shunt his train for more than six hours. Further he said he carried tonnage of 2000 when the normal tonnage was 1800. Like the first Plaintiff he also referred to some drivers whose trains consumed more fuel than the official figures but were not charged. As we have already said, this is a matter which has nothing to do with this appeal. The fourth, fifth and sixth Plaintiff were all dismissed for failing to account for the fuel or for gross negligence. The Plaintiffs' appeals to the Appeals Committee were unsuccessful. Cross examined the fourth Plaintiff said he declared the fuel on departure but not on return because it was not prescribed in his duties. He said the regulation relating to declare fuel levels came into force in January, 2000 and not in 1999, the material time. According to the fourth Plaintiff the normal fuel consumption between Kitwe and Ndola is 700 litres and not ,, U 500 litres. According to the witness called by the Defendant, the Defendant's position is that Clause 1. 7(a) of the disciplinary Code and Procedure was not violated. The first Defence - J6 - witness said the case was of a complex nature and needed time to complete and that the supervisors became aware of the offences only after the investigations. This witness also said that the Case Hearing Committee has no power to charge the Plaintiffs but merely recommends the penalties on assessment of the case. He said the Plaintiffs were charged with theft and negligence but on assessment of the evidence, the Plaintiffs were dismissed for negligence after being given an opportunity to be heard. Defence witness number two who led the team investigating what was called diesel scandal testified that investigations revealed rampant thefts of diesel from locomotive engines and rail tanks. The investigations found that procedures aimed at controlling consumption of fuel in relation to the work the locomotives were doing were not being followed. On this evidence the learned trial Judge held that the Plaintiffs had failed to prove their case on a balance of probabilities. The learned trial Judge found that the Plaintiffs in this case were train crews where 500 litres of diesel were lost on the Kitwe Ndola route. The learned trial Judge disbelieved the Plaintiffs' explanations that the loss would be due to heavier tonnage hauled. In short, the learned trial Judge found that the Defendant was justified in dismissing the Plaintiffs on tJ • ~ \ - J7 - account of their negligence which led to the loss of 500 litres of diesel. Having found that the Defendant had justification to dismiss the Plaintiffs, the learned trial Judge then held that this case fell within the principle in the case of Zambia National Provident Fund V Yeleweniya Mbiniwa Chirwal1J where we stated that: - "Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal, but the employer dismisses him without following the procedure laid down in contract of service, no injustice is done to the employee by such failure to follow the procedure and he has no claim on that ground either for wrongful dismissal or for a declaration that the dismissal was wrongful." As we have already stated the learned trial Judge found that on the facts of this case the Defendant was justified to dismiss Q the Plaintiffs and dismissed their claims. The Plaintiffs now appeal to this court against the judgment of the court below. The Plaintiffs filed five grounds of appeal. - J8 - The first ground of appeal is that the learned trial Judge erred in law and fact in arriving at the conclusion that the statement by the Chairman of the Disciplinary Committee in stating as follows: - "the Panel went through the evidence and observed that 500 litres of fuel were not declared. Theft does not arise but negligence was evident on your failure to declare loss of fuel. The evidence we have is circumstantial through negligence is proved beyond all doubt. This meant that the first Plaintiff was negligent in not declaring the loss of 500 litres of diesel the evidence of theft is circumstantial." The second ground of appeal is that the learned trial Judge erred in law and fact in that despite agreeing that the crew which worked together (Appellants) were given different charges he failed to address the effect of having found that theft was not proved. The third ground of appeal is that the learned trial Judge erred lJ in law and fact in concluding that there was no evidence that fuel was lost when Appellants called enough evidence disputing loss compared with other trains consumption. The fourth ground of appeal is that the learned trial Judge erred in law and fact in admitting that rules of natural justice - J9 - were offended 1n not according the 4 th Appellant an opportunity to be heard but could not find for him. The fifth ground of appeal is that the lower court erred in law and fact in justifying different treatment of the 4 th Appellant from Norman Katete and Richard Chileshe when in the case of Alex Mwansa (1 st Appellant) it treated the crew uniformly. Counsel filed written heads of argument which they augmented with oral submissions which basically are a repeat of their written submissions. Mr. Mulenga's submissions on ground one are that the panel having found that there was no theft of fuel it followed that there was no loss of fuel. It was Mr. Mulenga's submission that it was, therefore, erroneous for the learned trial Judge to conclude that the panel found that theft of fuel had been proved through circumstantial evidence. Mr. Mulenga's submissions on ground two are that the second and third Plaintiffs who were both Constables could not be found guilty of gross negligence in failing to prevent a theft when there was no theft that occurred. It was Mr. Mulenga's submission that in these circumstances the court below should have found for them. -JlO- On ground three Mr. Mulenga submitted that the lower court below placed the burden of proving non loss of fuel on the Plaintiffs when it is settled law that the Defendant who was alleging loss of fuel bore the burden to prove the loss at the hands of the Plaintiffs. It was Mr. Mulenga's submission that in any case the Plaintiffs had called evidence to negative the loss of fuel. Mr. Mulenga referred the tonnage as such kind of evidence. On the fourth ground of appeal Mr. Mulenga submitted that the court below having found that the rules of natural justice were offended in respect of the fourth Plaintiff in that he was not given an opportunity to be heard, the court below should have found for him. The complainant in the fifth ground of appeal is about the learned trial Judge's finding that there was no evidence to support a submission that one Norman Katete was merely discharged and not dismissed. Further, it is complained that Q the court below erred in not treating the fourth Plaintiff Norman Katete and the sixth Plaintiff uniformly as it did with the first Plaintiff and the other Plaintiffs. In so far this ground of appeal and submissions refer to the sixth Plaintiff Richard Chileshe, we find it cunous. The evidence that was before the learned trial Judge is that n' , . J 'i - Jl l - Richard Chileshe was dismissed. His letter of dismissal is,on page 163 of the record of appeal. We must also say that it is unethical for Mr. Mulenga to trade the interests of the sixth Plaintiff with those of the first, second and third Plaintiffs who are also his clients. For this, Mr. Mulenga must incur our strong disapproval. About Norman Katete. As we have already said, we do not see the relevance of Katete's case to this case. It is true that Norman Katete was allegedly involved in the fuel scam. The Pleading we have is that whereas the fourth Plaintiff and Norman Katete were charged with similar offences, Norman Katete was reinstated and later retrenched. On this basis alone, without more, we cannot say that both Norman Katete and the fourth Plaintiff should have stood or fallen together. For this reason, it is not even necessary for us to consider Mr. Matibini's submissions on this grounds of appeal. We find no merit in this ground of appeal and it languishes. Mr. Matibini's submissions on ground one are that the court below was on firm ground to find that although theft was not proved, negligence was proved in respect of the first, second and third Plaintiffs. Mr. Matibini pointed out that in answer to the charge at page 80 of the record that the engine consumed 1000 litres instead of 500 litres for the Kitwe/Ndola distance, - Jl2 - the first Plaintiff acknowledged at page 69 of the record of appeal that the engine consumed 1000 litres. Mr. Matibini said this was contrary to the District Safety Inspector's survey that 500 litres of fuel was enough to take care of idling and loads of trains between Ndola and Kitwe. He urged us to dismiss this ground of appeal. On ground two Mr. Matibini's submission was that 500 litres of fuel missed, that there was no reasonable explanation from the Plaintiffs and that negligence was, therefore, proved. In respect of ground three, the thrust of Mr. Matibini's submissions is that the learned trial Judge disbelieved the Plaintiffs' explanation that the loss of fuel was through carrying heavy tonnage. Mr. Matibini's submission on ground four was simply that there was evidence to support the finding that the fourth Plaintiff was guilty of causing loss of 1,300 litres of diesel. We have carefully considered the evidence that was before the court below, the submissions of counsel and the judgment appealed against. As we understand the first, second, third and fourth grounds of appeal, their theme is that the Defendant had no cause 0 - J13 - upon which it could have dismissed the Plaintiffs; that one or some of the Plaintiffs were not given an opportunity to be heard and that the Defendant in charging and dismissing the Plaintiffs acted in contravention of its own Disciplinary Code and Procedure. These grounds of appeal can therefore be properly dealt with together. Mr. Mulenga argued to show that the Plaintiffs' committed no disciplinary offences justifying their dismissals. We do not agree with these submissions. There is no dispute on the evidence that there were fuel losses. This evidence is overwhelming. Mr. Mulenga submitted that because there was no theft of oil proved, there could, therefore, not be loss of fuel. We are startled by this submission. Loss of anything cannot only occur through theft. Spillage can cause loss of fuel without necessarily being a theft. On the evidence we can not fault the learned trial Judge in his finding that there was loss of fuel and in his rejection of the explanations that the loss was due to heavy tonnage hauled. As Mr. Matibini rightly O submitted the losses of fuel were not reasonably explained by the Plaintiffs. Mr. Mulenga complained that the learned trial Judge placed the burden on the Plaintiffs to prove non loss of the fuel when it was the Defendant who alleged loss who should have proved the loss. We are not all too sure that the learned trial Judge said that in his judgment. In any case the fact of how the fuel missed was within the peculiar knowledge - J14 - of the Plaintiffs who were with the fuel in the tanks of the rains and it was for them to explain how more fuel than normal was used. Further, the Plaintiffs do not say more fuel was not used but that the loss was due to carrying heavy tonnage, an explanation the learned trial Judge rejected. In the event, we affirm the learned trial Judge's finding that the Defendant had justification to dismiss the Plaintiffs. That being the case, and as the learned trial Judge rightly pointed out in his judgment, this case falls within the principle in the Chirwa Casel11. The fact that the Defendant was guilty of failure to follow its own Disciplinary Code and Procedure is not fatal to the dismissal. In the same vain, failure by the Defendant to give the Plaintiffs or any of them a hearing is not also fatal to the dismissal because the Plaintiff had not suffered injustice as the Plaintiff was justified to dismiss the Plaintiffs. In this case the Plaintiffs were found guilty of dismissible offences, and the Defendant had justification to dismiss the Plaintiffs. Therefore, the Plaintiffs were properly dismissed. - J15 - We find no merit in this appeal and we dismiss it with costs to the Defendant to be taxed in default of agreement. ,N'I\ ............ \X~~1'x ..................... . D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE ..... ~ENGi······· SUPREME COURT JUDGE 0 •