Makumba v Attorney General (Civil Cause 593 of 1988) [1992] MWHC 57 (19 June 1992)

te te Sag vy 3/r IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 593 OF 1988 BETWEEN: M S&S MAKUMBAs 80.8 esas tae 8 FdHs SowSE EASE H KDE BEde 2 Hoes PLANTIEF ~ and - THE ATTORNEY GENERAL. ...ccccccccccsscccacscseccccee DEPENDANT CORAM: UNYOLO, J. Nyimbe, of Counsel, for the Plaintiff Chigawa, of Counsel, for the Defendant Kauncama, Official Interpreter Longwe, Court Reporter JUDGMENT The oleintif£ claims Gemages against the defendant for wrongful cismissal. The brief facts cf the case are these; The plaintiff was employed by the Malawi Gcevernment on 2lst May, 1980 as an assistant mechanic. He was stationed at Namwera Rural Development Project in Mangochi District. The plaintiff continued to work there until 27th January, 1986 when he was told to stop working on the allegaticn that he had purloinec Government property, namely, e heater. He was tolc that the matter woulcé be refered to the Project's headquarters at Liwoncge and thet the final decision would be mace there. However, no fermal letter of suspension was issued to the plaintiff, ecither by the Project office or the Project headquarters. The plaintiff then came to Blantyre ana stayed with a relation of his as he waitec for the decisicn. The year passed, but he heard nething. Naturally, he became Geeperate and on i7th April, 1987 he telephonec Namwera to fine out the position end spcke with the Project Officer who expresseé surprise the Project headquarters had not yet mace a decision in the matter. He was acivisec to write. Rather then write, tne plaintiff telephoned the Project headquarters, only to be told no-one there knew anything about his matter. Then the olaintiff wrote tc Namwera to Fina out what all this meant. This was on 12th August, LOST. Namwera resvonded by their letter dateg iSth September, 1987 (Exh. P2). It reads: "Dear Mr M S Makumba, TERMINATION OF EMPLOYMENT I refer to your letter dated 12th August, 19€7 wnerein you complainec’ as to what was the progress on the issue of suspension from duty. It is learnt that whilst you were working for Namwera Rural Develocment Project one time you stole 4 heater from Evaluation office of Namwera Rural Development Project. The Project Officer reported the matter to Namwera Police who in turn askec you that you were suspected to have stolen it and snovlad return it to Project Office. Eventuelly you produced the heater to Namwera Police. It is from tnis incidence that the Project Officer suspended you from your Guties pending the Preject Manager to issus you a termination letter. If the said information is different let me know what your views ere. By copy of this letter the Project Manager is remincged of the issue in question, eargerly weiting toa hear from you. Yours faithfully Sga. for PROJECT OFFICER NAMWERA RURAL DEVELOPMENT PROJECT" The plaintiff respondec saying the allegation that he stole the heater was false and saseless. He went on tc advise that if he wes not re-instated in his job he woule take legal action. To the plaintiff's surprise, Liwonce (the Project headauarters) oreceeded a week later to issue him with a letter of dismissal, Exn. P4. The letter is Gatec ist October, i907, anc reads: "Dear Sir, B& LETTER OF DISMISSAL Report has reached this office that your behaviour as Assistant Mechanic has gone worse. While you were working at Namwera Rural Development Project office you stole a Government heater from evaluation office of Namwera Project. The Project Officer reportec the matter to Namwera Police. You were suspended for stealing the heater anc later on you returnec the stolen heater. This means yeu admitted to have stolen it. It is for this reason that I have dismissec you from the employment with effect from the date cf your termination. Yours faithfully Sga. for PROGRAMME MANAGER (LWADD)" In this Court the plaintiff vigorously denied having stolen the heater. He said that it wes one of the Executive Officers at the Project office who just wanted to put him in trouble. The plaintiff tol¢c the Court that, in fact, the Project Officer Gicd carry out an inquiry into the matter and found ne facts to substantiate the allegation. He said that this was why he was not turned over to the Police. Sucn was the plaintiff's evicence. I now turn to the aefendant’s case. The chief witness for the cdefendant was DW1, the then Officer-in-Charge Police, Namwera. The witness said that, acting on information received, he went to Namwera Filling Station on inguiries anc there seized a heater. He took it to his office. The witness told the Court that later that day the plaintiff came and said ne hac come to give himself up because it was he who hed stolen the heater from the Project office. The witness said thet he sent for the Project Office to come and icentify the heater, and that indeed one of the Project Officers came and identified it. The witness told the Court that, eventually another officer came anc askecé fer the heater, saying the Preject Officer had ceciced to Geal with the matter administratively. The other witness worth mentioning was the said Project Officer. This witness saic that when he learnt about the missing of the heater he caused the matter to be reported toe the Police ana that later ne heard the heater was recovered. The witness told the Court that he called the plaintiff and asked him about the heater and that the pleintiff confessed and saic he was SOrry. The witness confirmed it was him who verbally suspencea the plaintiff from cuty. He saicg he cid so because the plaintiff had admitted stealing the heater. Having regard to the evidence, it is to be noted that beth the Project Cfficer ané the Officer-in-Charge Police emerged unshaken in their testimony that the plaintiff confessed having stolen the heater. I also thovght that both these gentlemen were witnesses of truth anc I have no reason to Cisblieve them. I am satisfied that the plaintiff Gicd take the heater, and I so finc. The defendent's case is that the claintiff committec an act of misconduct by taking the hester unlawfully and that in the circumstances the Project headquarters was justified in dismissing him. It is he cefendant's case further that the plaintiff was an "Industrial Class" employee employed under Book Three of the Malawi Public Service Regulations, MPSR. It is contended that the plaintiff's employers were entitled to dismiss him in pursuance of powers conferreé under MPSR 3:110(1) as read with MPSR 3:112(1){c). MPSR 3:110(1) prevides that an Industrial Class employee would be guilty of misconduct for any act, whether Gone or omitted to be done in the course of his cuties cr net, which is inconsistent with the fulfilment of the express or implied conditions cf his employment. AnG MPSR 3:112(1)(c) empowers the Responsible Officer cf any Industrial Class employce whe has been found guilty of an act of misconduct, to Gismiss such employee without due notice. Referring to the present case, I am satisfied, on the available evicence, thet what the plaintiff did in taking the heater larcencusly amounted to an act of misconduct anc Iam further satisfied that the Programme Manager, as Responsible Officer, was entitlec to cGismiss the plaintiff summarily like he did on account of the said act of misconduct. The matter does not, however, ena there. I have indicated that the plaintiff was suspended from duty on 27th January, 1966. I have shown that it was only on Ist October, 1987 when the letter of @ismissal was issued by the Programme Manager. This letter states that the plaintiff was Gismissed “with effect from the Cate of your termination". Clearly, this meant the cate the plaintiff's Gismissal was announcec, namely, lst October, 1987. Indceec, a Gismissal cannot be back-catec. This then leaves cut the period the plaintiff was under suspension, i.e. the period 27th January, 1986 to 30th September, 1987. It will we recalled the plaintiff was suspended verbally. One would expect that the Project Officer at Namwera or the Programme Manager at the headevuarters would then nave ccnfirmead the suspension in black and white. Toais was not <cene. Recording to the profferegé evidence, the plaintiff was simoly told to stop working until further notice. He obliged enc went away, ang it is not Gisputed he wasn't caid anything by way of salary or otherwise throughout the seriod of suspension. On this aspect, the Project Officer, in enswer to guestions put to him by the Court, said: "It wasn't actually suspension without pay, because we thought that within a week we weuld get the decision of the Programme Manager, but, #s it turned out, it tock too long. It was to he the d¢ecision of the Progremme Manager whether it would be suspension with or without pay.” > ‘here is Gefinitely no evidence that the Programme Manager (er anyone for that metter}) tolé the plaintiff his suspension was without pay. I have perusee the whole of Bock Three cf the MPSR which contains the terms) and concgitions governing Incustrial Class employees as the plaintiff wes. I have not founcd any provision on the subject cf susoension. Indeed, the Cefendant has not rpointea te any such prevision, sither in his defence or through Counsel during the acdresses. In other words, there appeéers te he ne basis upen which the defendent can justify the plaintiff's suspension. With resoect, the onus was on the csfencgant to show te the Court that the Programme Menager hac such power. At any rate, as I nave alreacy pointed out, the question whether or not the claintiff's verbal suspension (if suppertead or confirmed) would be without pay was &@ matter tc be GeciGec by the Programme Manager anc, again es I have earlier vointec out, that Gdecisicn wes never mace. On these facts, I hold the view, though not withovt a troubled mind, tnat the plaintiff was entitled to salary during the period he was on suspension. In his statement of claim the plaintiff out his remuneration at 32t cer hour. But his evidence in Court was that his pay was 72t per day. With respect, I must go by the latter, simply because this was what the plaintiff himself stated under cath. This works out te 7Zt times 26 working days, which equals K16.7Z per month. Indeed, the plaintiff Gic at one point say that his salary without overtime was "K1&S something”. As I understand it, the plaintiff was cn suspension for twenty months. At the above rate, he would have earned K374.46 gross. To my mind, the plaintiff is not entitlec to anything else. I, therefore, fine that the claintiff has proved his cese to this extent and I accordingly enter jucgment for nim in the said sum of K574.40 minus whatever tax is payable on this sum. He will, in addition, heve costs of the proceecings, Sut on the subordinate ccourt scale. PRONOUNCED in cnyen court this i$th Gay of June, 199 at Blantyre. A L E Unyolo JUDGE